The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-50, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests within the United States.

The national plant protection organizations (NPPOs) of the countries of Belize, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama have requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow pitaya fruit (Hylocereusspp.) to be imported from these countries into the continental United States. This document will refer to these countries collectively as Central America.

As part of our evaluation of this request, we prepared a pest risk assessment (PRA) and a risk management document (RMD). Copies of the PRA and the RMD may be obtained from the person listed underFOR FURTHER INFORMATION CONTACTor viewed on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov). The PRA, titled “Importation of Fresh Pitaya Fruit,Hylocereusspp. and several other genera and species, from Central America into the Continental United States” (October 2009), evaluates the risks associated with the importation of pitaya fruit into the continental United States from Central America. The PRA identified four pests of quarantine significance present in Central America that could be introduced into the United States through the importation of pitaya fruit. These are the Mexican fruit fly or Mexfly (Anastrepha ludens), Mediterranean fruit fly or Medfly (Ceratitis capitata), the gray pineapple mealybug (Dysmicoccus neobrevipes), and the passionvine mealybug (Planococcus minor). All four of these pests were determined to pose a high pest risk potential.

APHIS has determined that measures beyond standard port-of-entry inspection are required to mitigate the risks posed by these plant pests. Therefore, we are proposing to allow the importation of pitaya fruit from Central America into the continental United States only if they are produced in accordance with a systems approach to mitigate pest risk as outlined below. We are proposing to add the systems approach to the regulations in a new § 319.56-51 governing the importation of pitaya fruit from Central America.

Paragraph (a) of proposed § 319.56-51 would set out monitoring and oversight requirements for the NPPOs of the countries exporting pitaya fruit to the United States. Paragraph (a)(1) would require the NPPO of the exporting country to provide a workplan to APHIS that details the activities the NPPO will carry out to meet the requirements of the systems approach, subject to APHIS's approval of the workplan. APHIS would be directly involved with the NPPO in monitoring and auditing implementation of the systems approach. A bilateral workplan is an agreement between APHIS' Plant Protection and Quarantine program, officials of the NPPO of a foreign government, and, when necessary, foreign commercial entities that specifies in detail the phytosanitary measures that will comply with our regulations governing the import or export of a specific commodity. Bilateral workplans apply only to the signatory parties and establish detailed procedures and guidance for the day-to-day operations of specific import/exportprograms. Bilateral workplans also establish how specific phytosanitary issues are dealt with in the exporting country and make clear who is responsible for dealing with those issues. The implementation of a systems approach typically requires a bilateral workplan to be developed.

Paragraph (a)(2) would require the NPPO of the exporting country to conduct inspections at the packinghouses and monitor packinghouse operations to verify that the packinghouses comply with the systems approach requirements. The NPPO of the exporting country would also have to visit and inspect the places of production monthly, starting 2 months (60 days) before harvest and continuing until the end of the shipping season, to verify that the growers are complying with the systems approach requirements. If the NPPO finds that a place of production or packinghouse is not complying with the requirements of the systems approach, no fruit from the place of production or packinghouse would be eligible for export to the United States until APHIS and the NPPO conduct an investigation and appropriate remedial actions have been implemented.

Paragraph (a)(3) would require the NPPO of the exporting country to review and maintain all forms and documents related to export program activities in places of production and packinghouses for at least 1 year and, as requested, provide them to APHIS for review.

The monitoring and oversight described above would ensure that the required phytosanitary measures are properly implemented throughout the process of growing and packing pitaya fruit for export to the United States.

Paragraph (b)(1) of proposed § 319.56-51 would require the personnel conducting the trapping for Mexfly and Medfly described later in this document to be hired, trained, and supervised by the NPPO of the exporting country. The exporting country's NPPO must certify that each place of production has effective fruit fly trapping programs, and follows control guidelines, when necessary, to reduce quarantine pest populations. APHIS would be able to monitor the places of production. This condition would ensure that pitaya fruit intended for export to the continental United States are grown and packed in production and packing areas of Central America where fruit fly traps are maintained and where the other elements of the systems approach described below are in place.

Under proposed paragraph (b)(2), pitaya fruit would have to be grown in approved places of production that are registered with the NPPO of the exporting country.

Paragraph (b)(3) would specify that trees and other structures, other than the crop itself, may not shade the crop during the day and no other host plants of Medfly or Mexfly may be grown within 100 meters of the edge of the production site. During hot, sunny weather, pests congregate in shaded areas for survival. These requirements would reduce the pest pressure of Medfly and Mexfly outside the production site.

Paragraph (b)(4) would require that pitaya fruit that has fallen on the ground be removed from the place of production at least once every 7 days. Although pitaya fruit are a potential host for the identified pests, the pests typically prefer fallen fruit. Therefore, requiring that fallen fruit be removed from the place of production would reduce populations of pests in the fields where pitaya fruit intended for importation into the continental United States are grown. In addition, fallen fruit would not be allowed to be included in field containers of fruit to be packed for export because fruit that has fallen from trees may be damaged and thus more susceptible to infestation.

Under paragraph (b)(5), harvested pitaya fruit would have to be placed in field cartons or containers that are marked to show the place of production. This requirement would ensure that APHIS and the NPPO of the exporting country could identify the place of production for the pitaya fruit if inspectors were to find quarantine pests in the fruit either before export or at the port of entry.

APHIS has on rare instances intercepted fruit flies in pitaya fruit. Records of pitaya fruit being a host for either Medfly or Mexfly are either unverified references in old literature or based on cage infestations. As a result, pitaya fruit are considered to be poor hosts to fruit flies. Based on this, we would use trapping to demonstrate that places of production are free of fruit flies in conjunction with a systems approach to mitigate the risk posed by these fruit flies.

Paragraph (c)(1)(i) of proposed § 319.56-51 would specify the trapping requirements to demonstrate place of production freedom from Medfly and Mexfly. Beginning at least 1 year before the start of harvest and continuing through the end of the shipping season, trapping for Mexfly and Medfly would have to be conducted in the places of pitaya fruit production with at least 1 trap per hectare of APHIS-approved traps and traps must be serviced every 7 days.

Under proposed paragraph (c)(1)(ii), we would begin requiring places of production to meet standards for cumulative levels of flies per trap per day starting at 2 months prior to harvest through the end of the shipping season. The interval between the start of trapping and the enforcement of standards for flies per trap per day would allow the NPPO time to establish a baseline for compliance. Beginning 2 months prior to harvest, when traps are serviced, if either Medfly or Mexfly are trapped at a particular place of production at cumulative levels above 0.07 flies per trap per day, pesticide bait treatments would have to be applied in the affected place of production in order for the place of production to remain eligible to export pitaya fruit to the continental United States. If the average Medfly or Mexfly catch is greater than 0.07 flies per trap per day for more than 2 consecutive weeks, the place of production would be ineligible for export until the rate of capture drops to an average of less than 0.07 flies per trap per day.

Paragraph (c)(1)(iii) would state that the NPPO would have to keep records of fruit fly detections for each trap, update the records each time the traps are checked, and make the records available to APHIS inspectors upon request. The records would have to be maintained for at least 1 year.

Paragraph (c)(2) would provide pest-free areas as another option for mitigating the risk associated with Medfly. If pitaya fruit were produced in an area designated by APHIS as free of Medfly in accordance with § 319.56-5, no further mitigation for those fruit flies would be necessary for fruit produced in that area. For instance, Belize conducts a national fruit fly program, including Jackson traps, to maintain its pest-free status for Medfly, and APHIS currently recognizes all of Belize as free of Medfly. We are not proposing to provide for the use of pest-free areas for Mexfly because local conditions in these countries are not likely to allow the establishment of such areas.

Section 319.56-5 sets out specific requirements for determination that an area is a pest-free area. Paragraph (a) of § 319.56-5 states that determinations of pest-free areas be made in accordance with International Standards for Phytosanitary Measures (ISPM) No. 4, which is incorporated by reference in § 300.5. ISPM No. 4 sets out three maincriteria for recognition of a pest-free area:

• Systems to establish freedom;

• Phytosanitary measures to maintain freedom; and

• Checks to verify freedom has been maintained.

Paragraph (d) of proposed § 319.56-51 would set out requirements for the packinghouses where the pitaya fruit would be processed. The packinghouse would have to be registered with the NPPO of the exporting country. All openings to the outside of the packinghouse would have to be covered by screening with openings of not more than 1.6 mm or by some other barrier that prevents pests from entering. Screening with openings of not more than 1.6 mm excludes fruit flies. The packinghouse would be required to have double doors at the entrance to the facility and at the interior entrance to the area where the pitaya fruit would be packed. Such entrances are designed to exclude fruit flies from the packinghouse. In addition, the packinghouse could only accept fruit from registered places of production while the packinghouse is in use for exporting pitaya fruit to the United States. These procedures would reduce the risk that quarantine pests are present on pitaya fruit exported to the United States.

Paragraph (e) would require that the fruit be safeguarded by a pest-proof screen or plastic tarpaulin while in transit to a pest-exclusionary packinghouse and while awaiting packing. Pitaya fruit would have to be packed within 24 hours of harvest in insect-proof cartons or containers that can be sealed at the packinghouse against the entry of pests, or covered with insect-proof mesh or a plastic tarpaulin for transport to the United States. These safeguards would have to remain intact until arrival in the United States. These measures would prevent harvested fruit from being infested by quarantine pests.

Paragraph (f)(1) would require a biometric sample of pitaya fruit jointly agreed upon by APHIS and the NPPO to be inspected in the exporting country by the NPPO of that country following any post-harvest processing. The biometric sample would be visually inspected for gray pineapple mealybug and passionvine mealybug, which are external pests. A portion of the fruit would also be cut open to detect Mexfly and Medfly, which are internal pests. If the fruit is from a pest-free area for Medfly, then the fruit would only be inspected for Mexfly. External and internal inspection of a sample would ensure that pests at various life stages are detected.

Under proposed paragraph (f)(2), the pitaya fruit would be subject to inspection for all quarantine pests of concern at the port of entry. In addition, shipping documents identifying the place(s) of production in which the fruit had been produced and the packing shed(s) in which the fruit had been processed would have to accompany each lot of fruit presented for inspection at the port of entry to the United States and would have to be maintained until the fruit is released for entry.

Under paragraph (f)(3), if a gray pineapple mealybug and passionvine mealybug were to be found, the entire consignment of fruit would be prohibited from import into the United States unless it were treated in accordance with 7 CFR part 305. If a single larva of either fruit fly were to be found in a shipment (either by the NPPO in the exporting country or by inspectors at the U.S. port of entry), the entire consignment of fruit would be prohibited from export, and the place of production producing that fruit would be suspended from the export program until appropriate measures, as agreed upon by the NPPO of the exporting country and APHIS, had been taken.

Paragraph (g) would state that only commercial consignments of pitaya fruit would be allowed to be imported. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer. Produce grown commercially is less likely to be infested with plant pests than noncommercial consignments. Noncommercial consignments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control.

Paragraph (h) sets out the requirement for a phytosanitary certificate. Each consignment of fruit would have to be accompanied by a phytosanitary certificate issued by the NPPO of the exporting country, providing an additional declaration stating that the fruit in the consignment was produced in accordance with the requirements in proposed § 319.56-51. This requirement would certify that the provisions of the regulations have been met.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with 5 U.S.C. 603, we have performed an initial regulatory flexibility analysis, which is summarized below, regarding the economic effects of this proposed rule on small entities. Copies of the full analysis are available by contacting the person listed underFOR FURTHER INFORMATION CONTACTor on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov).

Based on the information we have, there is no reason to conclude that adoption of this proposed rule would result in any significant economic effect on a substantial number of small entities. However, we do not currently have all of the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, we are inviting comments on potential effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

This proposed rule would allow the importation of fresh pitaya fruit from Central America into the continental United States. Pitaya fruit is produced in Hawaii, California, and Florida, but the quantities domestically produced, numbers of U.S. producers, quantities imported, and other factors needed to assess the likely economic effects of this rule are not known. The quantity of pitaya fruit that would be imported from Belize, Costa Rica, El Salvador, Guatemala, Honduras, and Panama is also unknown. Nicaragua estimates exporting 1,200 metric tons (60 40-foot containers) of pitaya fruit to the continental U.S. annually, and it is thought that the other countries may ship similar or smaller amounts.

Lack of information about the quantity of pitaya fruit that would be imported from these countries, and about the quantities produced and already imported by the United States, prevents a clear understanding of what the economic effects of the proposedrule may be. We welcome information that the public may offer regarding the possible economic effects of this rule for U.S. small entities.

This proposed rule would allow pitaya fruit to be imported into the United States from Central America. If this proposed rule is adopted, State and local laws and regulations regarding pitaya fruit imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2010-0113. Please send a copy of your comments to: (1) Docket No. APHIS-2010-0113, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

We are proposing to amend the fruits and vegetables regulations to allow the importation of fresh pitaya fruit from Central America into the continental United States. As condition of entry, pitaya fruit from Central America would be subject to a systems approach that would include requirements for monitoring and oversight, establishment of pest-free places of production, and procedures for packing the pitaya. This action would allow for the importation of pitaya fruit from Central America into the continental United States while continuing to provide protection against the introduction of quarantine pests.

Implementing this rule requires the exporting country's NPPO to certify production sites, provide a workplan, maintain records of fruit fly detections and shipping documents, register packinghouses, and complete a phytosanitary certificate.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;e.g.,permitting electronic submission of responses).

Estimate of burden:Public reporting burden for this collection of information is estimated to average 0.8652 hours per response.

Respondents:Shippers and producers of fresh pitaya, NPPOs of Central America.

Estimated annual number of respondents:27.

Estimated annual number of responses per respondent:5.2222.

Estimated annual number of responses:141.

Estimated total annual burden on respondents:122 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we propose to amend 7 CFR part 319 as follows:

On April 14, 2011, the Federal Aviation Administration (FAA) published a proposed airworthiness directives legal interpretation in theFederal Registerfor comment (72 FR 20898). The FAA received numerous comments by the close of the comment period on May 16, 2011. Included in the comments were requests to extend the comment period to allow additional time for comment. The FAA is granting an extension until June 30, 2011, for the public to review the proposed interpretation and provide comments. We are repeating the publication of the proposal for the convenience of the reader.

The FAA's Organization/Procedures Working Group (WG) of the Airworthiness Directive Implementation Aviation Rulemaking Committee (AD ARC) requested that the FAA provide a legal interpretation of several provisions in 14 Code of Federal Regulations (CFR) that would help resolve a number of issues that have been debated within the WG. These issues partly result from certain changes made in the plain language revision to CFR part 39 in 2002 (see 67 FR 47998, July 22, 2002).

Some members of the WG question the extent of an aircraft operator's continuing obligation to maintain an AD-mandated configuration. They ask about two regulations:

The majority WG opinion is that the language of § 39.7, and its predecessor § 39.3, imposes an operational mandate that the requirements of the AD be maintained for each operation occurring after the actions required by the AD are accomplished. They conclude that § 39.9 expresses the well-established legal position that for continuing operations of products that do not comply with an AD, each flight is a separate violation.

The minority WG opinion is that if the unsafe condition identified in the AD was fixed at a moment in time, then § 39.7 no longer applies. The conclusion of the WG minority was that even if the product was determined to be in a condition contrary to the requirements of the AD at a later time, this change in configuration may be a violation of CFR 43.l3 (b), but not § 39.7.

Section 39.9 notes the need for both initial action by the aircraft operator and continued compliance by that aircraft operator with the AD requirements. Section 39.9 was added to the final rule in 2002 as a result of comments that the proposed version of the rule language combined compliance and non-compliance issues in one heading (proposed § 39.5, final version is § 39.7 of the 2002 rulemaking). The final rule preamble stated that the agency added § 39.9 “to refer to § 39.7, which is the rule that operators will violate if they fail to operate or use a product without complying with an AD that applies to that product.”

Section 39.9 explains the continuing obligation for aircraft operators to maintain the AD-mandated configuration. Section 39.7 imposes an operational requirement. Because the AD imposes an enforceable requirement to accomplish the mandated actions, the only way to give § 39.7 any meaning is to recognize that operators are required to maintain the AD-mandated configuration. Once the AD requirements are met an operator may only revert to normal maintenance if that maintenance does not result in changing the AD-mandated configuration.

The objective of part 39 and ADs generally is not just to require accomplishment of particular actions; it is to ensure that, when products are operated, they are free of identified unsafe conditions. Section 39.7 is the regulatory means by which the FAA prevents reintroduction of unsafe conditions. In 1965 the FAA recognized that maintenance may be the cause of some unsafe conditions: “the responsibilities placed on the FAA by the Federal Aviation Act justify broadening the regulation [part 39] to make any unsafe condition, whether resulting from maintenance, design, defect, or otherwise, the proper subject of an AD.” (Amendment 39-106; 30 FR 8826, July 14, 1965). Prior to Amendment 39-106 ADs could not be issued unless the unsafe condition was related to a design feature. After Amendment 39-106 ADs could be issued for unsafe conditions however and wherever found. The FAA does not issue ADs as a substitute for enforcing maintenance rules. If a maintenance process is directly related to an unsafe condition, that maintenance action would be proper for an AD. Particularly for unsafe conditions resulting from maintenance, it would be self-defeating to interpret § 39.7 as allowing reversion to the same maintenance practices that caused or contributed to the unsafe condition in the first place.

Some members of the WG questioned the extent of an aircraft operator's obligation to accomplish actions referenced in an AD beyond those actions necessary to resolve the unsafe condition specifically identified in an AD.

The opinion of these WG members is that a reasonable interpretation of the language in § 39.11 directing action to “resolve an unsafe condition” limits the FAA from requiring actions that do “not relate to correcting” the identified unsafe condition. In other words, an AD is limited to those tasks that resolve the unsafe condition, even if other tasks are explicitly listed in the AD or in a referenced service bulletin (SB). Even if § 39.11 doesn't explicitly limit the types of actions that the FAA may mandate in ADs, these members believe that ADs are limited to imposing requirements that are both necessary and “directly related” to addressing an unsafe condition because that is the sole purpose of ADs, as defined in part 39. The belief is that this would allow an operator to comply with those actions that, in the operator's opinion, correctthe unsafe condition without having to obtain an alternative means of compliance (AMOC) for other actions, such as access and close-up procedures, that are “not directly related” to addressing that identified unsafe condition.

Other members of the WG have the opinion that § 39.11 is merely descriptive of the types of actions required by an AD; it neither imposes obligations on the operator nor limits the FAA's authority in issuing an AD. These members believe that, given the FAA's broad regulatory authority, ADs may impose requirements that operators may not consider necessary and “directly related” to resolving the unsafe condition.

The FAA points to the language contained in § 39.11 that answers the WG's second question.

First Title 49, United States Code, § 44701, establishes the FAA's broad statutory authority to issue regulations in the interest of aviation safety, and the issuance of an AD is an exercise of this authority. While describing the types of actions required by ADs, § 39.11 does not limit the broad authority established by the statute. The requirements of the AD are imposed by the language of the AD itself, and not by § 39.11. Thus an AD may require more actions than correcting the specific unsafe condition. An example would be an AD requirement for certain continuing maintenance actions to prevent or detect the unsafe condition in the future.

In developing an AD, the FAA exercises its discretion in determining what actions are to be required in the interest of aviation safety. This discretion is limited only by the Administrative Procedure Act's prohibition on rulemaking actions that are “arbitrary and capricious.” Provided the actions required by an AD are reasonably related to the purpose of resolving the unsafe condition, it is within the FAA's discretion to mandate them. For example, service information frequently includes instructions for accessing the area to be worked on to address the unsafe condition. Because these access instructions are reasonably related to addressing the unsafe condition, it is within the FAA's discretion to mandate them.

We understand that some members of the AD ARC believe that some ADs are overly prescriptive with respect to mandated actions that they believe are unnecessary to address the unsafe condition. As explained previously, § 39.11 does not address this concern. Rather, the rulemaking process by which individual ADs are adopted provides the public with an opportunity to identify and comment upon these concerns with each AD. In addition, each AD contains a provision allowing for approval of an AMOC, which allows operators to obtain relief from requirements they consider unnecessary or unduly burdensome.

A WG member cited the use of the term “applicable” in a specific AD, AD 2007-07-02 (72 FR 14400, March 28, 2007), which contains these requirements:

The WG member asked for an explanation of the FAA's use of the word “applicable” in the two instances of its use in the paragraph (f) of the AD.

“Applicable” has the same meaning in both places in paragraph (f). The second usage references Table 1 in the AD that identifies the model(s) of airplanes to which each service bulletin applies. So the “applicable service bulletin” is the one that applies to each corresponding airplane model, as indicated in the table in the AD. Similarly, “all the applicable actions” specified in each applicable service bulletin are those actions that are identified as applying to a particular airplane. “Applicable” is a necessary qualifier in this context for two reasons: (1) In many ADs, the referenced service bulletins specify different actions for different airplane configurations, typically identified as “Group 1, Group 2,” etc. (2) In many ADs, the referenced service bulletins specify different actions depending upon conditions found during accomplishment of previous steps in the instructions, for example, if a crack is smaller than a specified size, repair in accordance with the Structural Repair Manual; if larger, repair in accordance with a method approved by the Aircraft Certification Office. So “applicable” limits the AD's requirements to only those that are specified in the service bulletin for the configuration and conditions of the particular airplane. We intend for the word “applicable” to limit the required actions to those that apply to the particular airplane under the specific conditions found.

The opinion that “applicable” in this context should be interpreted to refer only to those actions in the service bulletin that are necessary to address the unsafe condition, and that operators should not be required to accomplish any other actions that they determine are not necessary, is incorrect. Without the modifier “applicable,” the requirement to accomplish “all actions specified in the service bulletin” would literally mandate accomplishing all actions, whether or not applicable to the configuration and condition of a particular airplane. The modifier “applicable” is necessary to avoid this literal, but unintended and likely overly burdensome, meaning.

For example, in AD 2007-07-02 different actions are required depending on the conditions found while accomplishing the modification. The adjective, “applicable,” is necessary to limit the required actions to those that are indicated for the conditions found. The purpose of the phrase, “by accomplishing all the applicable actions specified,” is to eliminate precisely the ambiguity that would be introduced by the WG members' question. The operator is required to accomplish “all” the actions that are “applicable” to the affected airplane, without allowing discretion to determine which ones are, in the operator's opinion, “necessary” to address the unsafe condition.

A member of the AD ARC questions whether an AD needs to specifically address “impossibilities” (for example, an AD requiring an action that is not possible for the specific aircraft to which the AD applies, such as modifying parts that have been removed during an earlier alteration).

The FAA points to the language of §§ 39.15 and 39.17 that answers the fourth question.

If a change to a product makes it impossible to comply with the requirements of an AD, then the operator must request an AMOC approval.

The FAA does not have the resources to determine the modification status of every product to which the AD may apply. If it is impossible to comply with an AD as written, that does not mean the product does not have the unsafe condition. The only way to make sure the product does not, or that there is another acceptable way to address it, is to require an operator to obtain an AMOC approval.

For several years before part 39 was revised in 2002 the FAA included a Note in every AD that contained the same substance as the regulation. This revision to the regulations was a result of some operators claiming that an AD did not apply to a particular airplane because the airplane's configuration had changed, even though that airplane was specifically identified in the “Applicability” paragraph of the AD. But a change in product configuration does not necessarily mean that the unsafe condition has been eliminated, and in some cases the unsafe condition may actually be aggravated. So it is necessary to emphasize that the “Applicability” paragraph of the AD determines AD applicability, not the configuration of an individual airplane. In the case of the affected component having been removed from the airplane, the operator must obtain an AMOC approval. If the removed component is replaced with a different component that may or may not retain the unsafe condition, this is a technical issue that must be addressed through the AMOC process. There are infinite variations on the “impossibility” issue that cannot be anticipated when drafting an AD but for which the AMOC process is well suited.

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-0475; Directorate Identifier 2010-NM-199-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 because of 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.

We have received numerous reports of Boeing 757 events where the flight crews experienced unintended lateral oscillations during the final approach, just before landing. One event resulted in a nose gear collapse after a hard landing and another event resulted in a tail strike during a landing that was aborted because of the oscillations. The oscillations are characterized by largewheel inputs at high rates that are out of phase with the airplane response and typically occur under certain gusty and turbulent wind conditions during landing. Unintended lateral oscillations near touchdown could result in loss of lateral control of the airplane, and consequent airplane damage or injury to flight crew and passengers.

On October 31, 2006, we issued AD 2006-23-15, Amendment 39-14827 (71 FR 66657, November 16, 2006). That AD applies to the Boeing Model 757 airplanes affected by this NPRM. That AD requires installing a control wheel damper assembly at the first officer's drum bracket assembly and aileron quadrant beneath the flight deck floor in section 41, doing a functional test and adjustment of the new installation, and doing related investigative/corrective actions if necessary. For certain airplanes, that AD also requires doing an additional adjustment test of the re-located control wheel position sensor, and an operational test of the flight data recorder and the digital flight data acquisition unit. AD 2006-23-15 also requires installing vortex generators on the leading edge of the outboard main flap on certain airplanes. The addition of a wheel damper prevents large abrupt pilot lateral control wheel inputs and the addition of vortex generators creates vortices over the flap surface to help mitigate a sudden and premature airflow separation when spoilers are deployed in response to large control wheel movements. We issued that AD as interim action to reduce unintended roll oscillations near touchdown, which could result in loss of lateral control of the airplane, and consequent airplane damage or injury to the flight crew and passengers.

The preamble to AD 2006-23-15 specifies that we consider the requirements “interim action” and that the manufacturer is investigating an additional modification that might further reduce or eliminate the unsafe condition. AD 2006-23-15 explains that we might consider further rulemaking if a modification is developed, approved, and available. The manufacturer now has developed such a modification that will further reduce the effects of the unsafe condition, and we have determined that further rulemaking is indeed necessary; this proposed AD follows from that determination. However, the requirements of AD 2006-23-15 will continue in effect.

We reviewed Boeing Alert Service Bulletin 757-27A0152, Revision 1, dated June 30, 2010. This service information identifies two configurations. Configuration 1 includes airplanes that have not accomplished Boeing Alert Service Bulletin 757-27A0152, dated April 29, 2009; and Configuration 2 identifies airplanes on which Boeing Alert Service Bulletin 757-27A0152, dated April 29, 2009, has been accomplished, but need additional work. For Configuration 1 airplanes, this service information describes procedures for changing the E3-1 electronics shelf by installing 3 new bracket assemblies and 3 new relays, changing wire bundle W1265, and changing wire bundle W4471 between the E3-1 electronics shelf and the E5-1 electronics shelf. Additionally, this service information specifies doing an operational test of the spoiler/speedbrake control system. These changes will reduce the lateral control capability by disabling spoiler pairs 1 and 12, and 5 and 8, from responding to control wheel commands when the flaps are deployed in landing configuration (25 and 30 degrees). The speedbrake operation will be unaffected in-air and during on-ground operations. To maintain desired lateral controllability, spoiler pair 1 and 12 will be re-engaged if the right hydraulic system fails.

For Configuration 2 airplanes, this service information describes procedures for torquing the bracket assembly installation nuts and ground stud nuts, and doing bond resistance tests between the bracket assemblies and the terminal lugs on the ground studs.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type designs.

This proposed AD would require accomplishing the actions specified in the service information described previously.

We estimate that this proposed AD will affect 686 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2011-0012 and Airspace Docket No. 10-ASO-44) and be submitted in triplicate to the Docket Management System (seeADDRESSESsection for address and phone number). You may also submit comments through the Internet athttp://www.regulations.gov.

Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0012; Airspace Docket No. 10-ASO-44.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted throughhttp://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page athttp://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the rule, any comments received, and any final disposition in person in the Dockets Office (seeADDRESSESsection for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class D airspace and Class E surface airspace at Lawson AAF, Columbus, GA. The volume of air traffic has decreased at Columbus Metropolitan Airport, Columbus, GA, therefore reference to the Class C airspace area is being removed from the description. The geographic coordinates for Lawson AAF also would be adjusted to coincide with the FAAs aeronautical database.

Class D airspace designations and Class E surface airspace designations are published in Paragraphs 5000 and 6002, respectively, of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in subtitle VII, part, A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it proposes to amend Class D and E airspace at Lawson AAF, Columbus, GA.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2011-0005; Airspace Docket No. 10-ASO-42) and be submitted in triplicate to the Docket Management System (seeADDRESSESsection for address and phone number). You may also submit comments through the Internet athttp://www.regulations.gov.

Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0005; Airspace Docket No. 10-ASO-42.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted throughhttp://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page athttp://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see theADDRESSESsection for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 210, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace at Lakeland, FL to provide controlled airspace required to support the new standard instrument approach procedures for Lakeland Linder Regional Airport. The existing Class E airspace extending upward from 700 feet above the surface would be modified for the safety and management of IFR operations.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator.Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace at Lakeland Linder Regional Airport, Lakeland, FL.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Pursuant to, and limited by 5 U.S.C. 552a(k)(2), the Commission proposes to exempt systems of records, “Tips, Complaints, and Referrals (TCR) Records (SEC-63)”; “SEC Security in the Workplace Incident Records (SEC-64)”; and “Investor Response Information System (IRIS) (SEC-65)”, from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) and 17 CFR 200.303, 200.304, and 200.306, insofar as they contain investigatory materials compiled for law enforcement purposes. The Privacy Act allows Government agencies to exempt certain records from the notification, access and amendment provisions. If an agency claims an exemption, however, it must issue a rule to explain the reasons why a particular exemption is claimed. The proposed exemption would be applicable except under the circumstances set forth in the provisions of section (k)(2) of the Privacy Act.1

The TCR Records (SEC-63) system of records contains records related to tips, complaints, referrals of misconduct, or related information about actual or potential violations of the federal securities laws; investor harm; conduct of public companies; securities professionals; regulated entities; and associated persons. This system of records may include investigatory materials that were compiled in connection with the Commission's enforcement responsibilities under the federal securities laws. Such material may consist of unsolicited and often unverified statements concerning individuals, information received from confidential sources, as well as reportsfrom the Commission's investigators and other law enforcement personnel. The disclosure of the existence of investigatory materials could seriously undermine effective enforcement of the federal securities laws by prematurely alerting individuals to the fact that they are under investigation, by giving them access to the evidentiary bases for a Commission enforcement action or seriously hampering the Commission's case in court or before an administrative law judge.

The SEC Security in the Workplace Incident Records (SEC-64) system of records contains records related to reports involving incidents of assault, harassment, intimidation, bullying, weapons possession, or threats at the SEC. This system of records may include investigatory materials that were compiled in connection with inquiries or investigation of potential or actual incidents of violence by and against individuals at an SEC facility. The disclosure of information as it relates to investigatory materials or the identity of sources of information may seriously undermine the safety and security of employees in the workplace. Access to such information could allow the subject of an investigation or inquiry of an actual or potential criminal or civil violation to interfere with and impede the investigation, tamper with witnesses or evidence, and to avoid detection or apprehension.

The IRIS (SEC-65) system of records contains records related to complaints/inquiries/requests from members of the public and others. This system of records may include investigatory materials that were compiled in connection with the Commission's enforcement responsibilities under the federal securities laws. Such material may consist of unsolicited and often unverified statements concerning individuals, information received from confidential sources, as well as reports from the Commission's investigators and other law enforcement personnel. The disclosure of the existence of investigatory materials could seriously undermine effective enforcement of the federal securities laws by prematurely alerting individuals to the fact that they are under investigation, by giving them access to the evidentiary bases for a commission enforcement action or seriously hampering the Commission's case in court or before an administrative law judge.

The Commission also proposes to amend its inventory of exempted systems of records by changing the name of the system of records titled: “Office of Personnel Code of Conduct and Employee Performance Files (SEC-38)” to “Disciplinary and Adverse Actions, Employee Conduct, and Labor Relations Files”. In a companion release the Commission is publishing a Privacy Act system of records notice to make technical amendments to this system of records to incorporate minor corrective and administrative modifications that have occurred since the notice was last published and will update the system name to more accurately reflect the records contained in the system. The Commission is amending its inventory of exempted systems of records reflect the new title of this system of records.

Finally, the Commission is making a technical amendment to its inventory of exempted systems of records by removing a reference to the system of records titled: “Personnel Security Files”. On August 8, 2000 (65 FR 49037), the Commission published notice to delete this system of records as the records were duplicative of records in: “Personnel Investigations Records (OPM/Central-9)”, published by the United States Office of Personnel Management.

The Commission requests comment on the proposed amendments in this release.

The proposed amendments do not contain a “collection of information” requirement within the meaning of the Paperwork Reduction Act of 1995.”2 Accordingly, the Paperwork Reduction Act is not applicable.

The Commission is sensitive to the costs and benefits that result from its rules. This proposal would exempt portions of three new systems of records from provisions of the Privacy Act in so far as the records contain investigatory materials compiled for law enforcement purposes. As more fully described above, the TCR Records system of records, the SEC Security in the Workplace Incident Reports system of records and the IRIS system of records may include investigatory materials compiled in connection with the Commission's enforcement of the federal securities laws, in connection with potential or actual incidents of workplace violence, or in connection with public complaints/inquiries/request. Access to or disclosure of the investigatory materials in these systems of records could seriously undermine the effective enforcement of the Federal securities laws, and the safety and security of Commission employees in the workplace. We recognize that our proposed amendments may impose costs on individuals who may wish to obtain access to records that contain investigatory materials in these systems of records. Congress seems to have contemplated these costs in promulgating the exemption in 5 U.S.C. 552a(k)(2).

Section 3(a) of the Regulatory Flexibility Act of 19803 (“RFA”) requires the Commission to undertake an initial regulatory flexibility analysis of the proposed rule amendments on small entities unless the Commission certifies that the proposal, if adopted, would not have a significant economic impact on a substantial number of small entities.4 Pursuant to 5 U.S.C. 605(b), the Commission hereby certifies that the proposed amendments to 17 CFR 200.312 would not, if adopted, have a significant economic impact on a substantial number of small entities. The proposed amendments would exempt portions of three new systems of records from provisions of the Privacy Act in so far as the records contain investigatory materials compiled for law enforcement purposes. Because the proposed amendments would apply solely to private individuals, the proposed amendments would not, if adopted, have a significant economic impact on a substantial number of “small entities,” as defined by the RFA.5 We encourage written comments regarding this certification.

The Commission is proposing amendments to 17 CFR 200.312 under the authority in 5 U.S.C. 552a(k)(2) and 5 U.S.C. 552a(k)(5).

For the reasons set out in the preamble, Title 17, Chapter II, of the Code of Federal Regulations is proposed to be amended as follows:

In FR Doc. 2011-7940, appearing on page 19192, in theFederal Registerof Wednesday, April 6, 2011, FDA is making the following corrections:

1. On page 19193, in the second column, in the first full paragraph, in the last sentence, “section III.A of this document” is corrected to read “section III.B of this document”.

2. On page 19194, in the second column, in the third full paragraph, in the last sentence, “discussed in section III.C.” is corrected to read “discussed in section III.D”.

3. On page 19205, in the first column, in the eighth line, “discussed in section III.C.” is corrected to read “discussed in section III.D”.

4. On page 19205, in the third column, in the twelfth line, “discussed in III.A.” is corrected to read “discussed in section III.B”.

5. On page 19207, in the first column, in the last paragraph, in the fourth sentence, “discussed in section II.A.” is corrected to read “discussed in section III.B”.

6. On page 19207, in the second column, in the fifth line, “discussed in section III. A.” is corrected to read “discussed in section III.B”.

7. On page 19214, in the second column, in the second full paragraph, in the second sentence, “§ 101.11(2)(ii)” is corrected to read “§ 101.11(b)(2)(ii)(A)”.

8. On page 19214, in the second column, in the third full paragraph, “§ 101.11(2)(ii)(D)” is corrected to read “§ 101.11(b)(2)(ii)(D)”.

9. On page 19216, in the first column, in the second full paragraph in the third sentence, “§ 101.11(b)(2)(i)(4))” is corrected to read “§ 101.11(b)(2)(i)(A)(4)”.

10. On page 19218, in the second column, in the last paragraph, in the first sentence, “§ 101.11(c)(2)” is corrected to read “§ 101.11(d)(2)” and “§ 101.11(a)(10)” is corrected to read “§ 101.11(a)”.

11. On page 19218, in the third column, the first sentence, “FDA is also proposing in § 101.11(c)(2) that an authorized official may register an individual restaurant or similar retail food establishment or multiple restaurants or similar retail food establishments that are part of chain on a single registration form.” is corrected to read “Under this proposal an authorized official may register an individual restaurant or similar retail food establishment or multiple restaurants or similar retail food establishments that are part of a chain on a single registration form.”

12. On page 19218, in the third column, in the last full paragraph, “FDA, White Oak Building 22, Room 0209, 10903 New Hampshire Ave., Silver Spring, MD 20993” is corrected to read “FDA, CFSAN Menu and Vending Machine Labeling Registration, White Oak Building 22, rm. 0209, 10903 New Hampshire Ave., Silver Spring, MD 20993”.

13. On page 19219, in the first column, in the second full paragraph, in the last sentence, “§ 101.11(c)(2)” is corrected to read “§ 101.11(c)(6)”.

14. On page 19226, in Table 6, in the seventh column, “42,226,212” is corrected to read “36,962,326”.

15. On page 19227, in Table 7, the title “Table 7—ESTIMATED ANNUAL THIRD PARTY DISCLOSURE BURDEN: NUTRIENT DISCLOSURE FORPROPOSED § 101.11(B)” is corrected to read “TABLE 7—ESTIMATED ANNUAL THIRD PARTY DISCLOSURE BURDEN: NUTRIENT DISCLOSURE FOR PROPOSED § 101.11(b)”.

16. On page 19228, in Table 8, the title “Table 8—ESTIMATED ANNUAL REPORTING BURDEN, VOLUNTARY REGISTRATION UNDER PROPOSED § 101.11(c)(3)” is corrected to read “Table 8—ESTIMATED ANNUAL REPORTING BURDEN, VOLUNTARY REGISTRATION UNDER PROPOSED § 101.11(d)(3)” and at the end of the table, the following table note is added “1There are no capital costs or operating and maintenance costs associated with this collection of information.”

17. In proposed § 101.11(a), on page 19233, in the second column, in the definition of restaurant-type food, “Restaurant-type foodmeans food of the type described in the definition of ‘restaurant food’ that is ready food human consumption * * *” is corrected to read “Restaurant-type foodmeans food of the type described in the definition of 'restaurant food' that is ready for human consumption * * * ”.

18. In proposed § 101.11(b)(2)(i)(C), on page 19234, in the second column, “paragraph (b)(3)(i) of this section” is corrected to read “paragraph (b)(2)(ii) of this section”.

19. In proposed § 101.11(b)(2)(iii)(A)(1) and (b)(2)(iii)(A)(2), on page 19235, in the first column, “§ 101.10(b)(2)(ii)(A)” is corrected to read “§ 101.11(b)(2)(iii)(A)”.

20. In proposed § 101.11(d)(3)(vii), on page 19236, in the third column, “FDA White Oak Building 22, Room 0209, 10903 New Hampshire Ave., Silver Spring, MD 20993” is corrected to read “FDA, CFSAN Menu and Vending Machine Labeling Registration, White Oak Building 22, rm. 0209, 10903 New Hampshire Ave., Silver Spring, MD 20993”.

21. In proposed § 101.11(d)(4), on page 19236, in the third column, “§ 101.11(c)(3)” is corrected to read “§ 101.11(d)(3)”.

In theFederal Registerof April 6, 2011 (76 FR 19192), FDA proposed requirements to implement the menu labeling provisions of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act). Specifically, FDA proposed to require that restaurants and similar retail food establishments that are a part of a chain with 20 or more locations doing business under the same name, and offering for sale the same menu items, provide calorie and other nutrition information for standard menu items, including food on display and self-service food. FDA provided a 60-day comment period (i.e.,until June 6, 2011) for that proposal.

FDA has received several requests to extend the comment period. The requests stated that additional time is needed to comment on the proposed rule for a number of reasons, including a need for time to assess the effect of the proposal on the industry; a desire to conduct consumer research to support comments on the proposal; and the complexities of the proposed rule.

FDA has considered the requests and is extending the comment period an additional 30 days, until July 5, 2011. We believe that this additional time will provide interested parties sufficient time to respond to the proposal.

Interested persons may submit to the Division of Dockets Management (seeADDRESSES) either electronic or written comments regarding this document. It is only necessary to send one set of comments. It is no longer necessary to send two copies of mailed comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

Background

The notice of proposed rulemaking that is the subject of this document is under section 267 of the Internal Revenue Code.

As published, the notice of proposed rulemaking (REG-118761-09) contains errors that are misleading and are in need of clarification.

Accordingly, the notice of proposed rulemaking which is the subject of FR Doc. 2011-9606 is corrected as follows:

On page 22336, in the preamble, column 1, under the paragraph heading “Background”, line 2, the language “concerning the Federal income tax,” is corrected to read “concerning the federal income tax”.

On page 22337, in the preamble, column 1, under the paragraph heading “Background”, line 14 from the top of the page, the language “entirety. Accordingly, the IRS and the” is corrected to read “entirety. Accordingly, the IRS and”

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas and lists the approved American viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and a name and a delineated boundary as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of awine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.12 of the TTB regulations prescribes standards for petitions for the establishment or modification of American viticultural areas. Such petitions must include the following:

• Evidence that the area within the viticultural area boundary is nationally or locally known by the viticultural area name specified in the petition;

• An explanation of the basis for defining the boundary of the viticultural area;

• A narrative description of the features of the viticultural area that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make it distinctive and distinguish it from adjacent areas outside the viticultural area boundary;

• A copy of the appropriate United States Geological Survey (USGS) map(s) showing the location of the viticultural area, with the boundary of the viticultural area clearly drawn thereon; and

• A detailed narrative description of the viticultural area boundary based on USGS map markings.

TTB received a petition from Thomas Farella of Farella-Park Vineyards and Bradford Kitson, on behalf of the vintners and grape growers in the Coombsville region of Napa Valley, California, proposing the establishment of the Coombsville viticultural area in Napa County, California. The proposed viticultural area contains 11,075 acres, 1,360 acres of which are in 26 commercial vineyards, according to the petition. The proposed viticultural area lies within the Napa Valley viticultural area (27 CFR 9.23) and the larger, multicounty North Coast viticultural area (27 CFR 9.30). The distinguishing features of the proposed Coombsville viticultural area include geology, geography, climate, and soils.

TTB notes that the proposed Coombsville viticultural area adjoins or is located near four established viticultural areas: the Oak Knoll District of Napa Valley viticultural area (27 CFR 9.161) to the northwest and the Los Carneros viticultural area (27 CFR 9.32) to the southwest share portions of their boundary lines with that of the proposed Coombsville viticultural area, and the Wild Horse Valley viticultural area (27 CFR 9.124) to the east and the Solano County Green Valley viticultural area (27 CFR 9.44) to the southeast are close to, but do not touch, the eastern boundary line of the proposed Coombsville viticultural area.

The petition states that four bonded wineries use the “Coombsville” name on one or more of their wine labels: Bighorn Cellars, Laird Family Estate, Farella-Park Vineyards, and Monticello Cellars. All four wineries have advised TTB in writing that if the Coombsville viticultural area is established, they will be able to comply with the rule that, in the case of wine using the “Coombsville” name on the label as an appellation of origin, at least 85 percent of the wine must be produced from grapes grown within the boundary of the Coombsville viticultural area.

Previously, a group of Napa Valley grape growers proposed the establishment of the 11,200-acre “Tulocay” American viticultural area in approximately the same area as the proposed Coombsville viticultural area. Consequently, TTB published Notice No. 68 in theFederal Register(71 FR 65432) on November 8, 2006, to propose the establishment of the Tulocay viticultural area. However, based on comments received in response to Notice No. 68, TTB published Notice No. 84 in theFederal Register(73 FR 34902) on June 19, 2008, withdrawing Notice No. 68 because the evidence and other information available raised a substantial question as to whether there was a sufficient basis to conclude that the geographical area described in the petition was locally or nationally known as “Tulocay” and because consumer confusion could ensue if the term “Tulocay,” which for more than 30 years was identified with a particular winery, would suddenly be attributed only to grapes grown from a geographical area.

However, TTB did not preclude consideration of the current petition in Notice No. 84. In fact, TTB stated: “* * * currently there is no petition requesting the establishment of a viticultural area in the subject area using a variation of Tulocay, such as Tulocay District, or any other name, such as Coombsville or Coombsville District. It is noted that these findings do not preclude future consideration of a petition, supported by sufficient name evidence, proposing the establishment of a viticultural area in the subject area using a name other than `Tulocay.'” Notice No. 84 further noted that some comments in response to Notice No. 68 expressed a preference for the name “Coombsville” for the proposed viticultural area rather than the petitioned-for “Tulocay” name.

TTB further notes that the eastern portion of the boundary line for the proposed Coombsville viticultural area differs from that of the proposed Tulocay viticultural area boundary line in order to keep the proposed Coombsville viticultural area within Napa County and the Napa Valley viticultural area. This boundary change results in a 125-acre reduction of the total area, from 11,200 acres for the previously proposed Tulocay viticultural area to 11,075 acres for the currently proposed Coombsville viticultural area.

The petition states that “Coombsville” is the commonly used name for an area that lies east of the City of Napa, California. In addition, the area east of the City of Napa is designated as “Coombsville” on the Napa County Land Use Plan 2008-2030 map.

The petition states that, as early as 1914, an unincorporated area of Napa County became commonly known as the “Coombsville” region named for Nathan Coombs, a prominent community leader and founder of the City of Napa. Mr. Coombs owned 2,525 acres of land on 3 parcels to the east of the Napa River, in the area now called “Coombsville” (“Official Map of the County of Napa,” California, 1876).

According to the petition, the original Coombsville Road, little more than an unnamed path, existed more than 120 years ago (“Map of Coombsville,” survey map, W. A. Pierce, “County Road from Napa to Green Valley,” 1883). Currently, Napa city and county road signs identify Coombsville Road where the road intersects with Third Street and the Silverado Trail. Coombsville Road is entirely within the boundary line of the proposed Coombsville viticultural area (“Napa Valley,” map, California State Automobile Association, May 2004), according to the petition.

The petition states that the Coombsville region has always had a separate identity from the City of Napa. Early on, the City of Napa grew in increments, eventually “swallowing upthe easterly suburb of Coombsville” (“Napa Valley Heyday,” Richard H. Dillon, The Book Club of California, 2004, page 119). The Coombsville region was also recognized as a farming area (“Napa, The Transformation of an American Town,” Lauren Coodley and Paula Schmitt, Arcadia Publishing, 2007, page 61), according to the petition.

The Coombsville region has become well known as an agricultural area through Napa County newspaper reports, according to the petition. For example, a newspaper report stated: “A week ago, Patrick Sexton's backyard in Coombsville was a riotous place, with a gobble-gobble here, a gobble-gobble there, a gobble-gobble everywhere” (“Napa High senior raises great gobblers,” The Napa Valley Register, Nov. 27, 2008). That report further noted: “Coombsville is still wild country. The birds are fully protected from the raccoons, dogs and occasional mountain lions” (ibid.). Another report describes a downed power line that cut off electricity to 2,200 Coombsville residential customers overnight (“Lights out again in Coombsville area,”op. cit.,Sept. 3, 2008). A third report describes a political district including Coombsville, American Canyon, and part of [the City of] Napa (“Local ballot for June takes shape,”op. cit.,March 12, 2008), according to the petition.

The petition states that the Napa County real estate industry recognizes the Coombsville region in its sale listings. Properties are described as “situated in the prestigious and desirable Coombsville area,” according to a realtor listing on July 7, 2009. A property described as “Coombsville Area at Its Best!” sold for $600,000 in 2008, according to another realtor. The petition includes the following description of a proposed new housing development in the region: “The project is off of Wyatt Road, on the frontier where the residences of east Napa meet the open space and rural feel of Coombsville” (“No middle ground in Napa County,”op. cit.,Oct. 23, 2005). Fifty-five acres in the region purchased for real estate development is described in the petition as, “* * * in the Coombsville area of Napa County, scrub-covered slopes at the south end of the valley * * *” (“The Far Side of Eden—New Money, Old Land and the Battle for Napa Valley,” James Conaway, Houghton Mifflin Company, 2002, page 50).

The petition explains that “Coombsville” has national name recognition because of its renown as a wine region in Napa Valley. The following reports appeared in a wine enthusiast publication: “Putting Coombsville on the map for Napa Cabernet” (July 31, 2001), regarding a vintner who believes he can make one of the top cabernets in the Napa Valley region; “Caldwell Vineyards” (Nov. 15, 2002), regarding the first time that John Caldwell produced wine from a 60-acre Coombsville vineyard; “Franciscan Buys Large Parcel of Napa Land” (March 15, 1999), describing a 160-acre property in the Coombsville region; and “James Laube Unfined—An Armchair Winery `Tour' with Philippe Melka” (Aug. 10, 2007), detailing the acquisition of Coombsville-grown cabernet grapes to produce wine.

The petition also states that the following reports on the Coombsville region appeared on AppellationAmerica.com: The Coombsville region is described as “the hottest spot for grapes these days in the Napa Valley” and it is circled on a map of the Napa Valley in “Why Cool Coombsville is HOT” (Oct. 8, 2008); and a 1995 acquisition of 20 acres of vineyards in the Coombsville region is detailed in “The Wonders of Mountain Terroir: Let Robert Craig Explain” (Feb. 7, 2007).

The petition states that the history of grape-growing in the Coombsville region dates to 1870, when the Carbone family purchased a large land parcel on Coombsville Road (“Napa Valley Heyday,” Richard H. Dillon, The Book Club of California, 2004, page 100). Around 1880, Antonio Carbone opened a winery (ibid.). The historic winery still exists and is now used as a private residence, the petition explains. The petition further states that modern vineyard plantings include: Farella-Park Vineyards; Stag's Leap Wine Cellars' Arcadia Vineyards; Far Niente Winery's Barrow Lane, Carpenter, and John's Creek Vineyards; Berlenbach Vineyards; and Richard Perry Vineyards.

An aerial photograph of the Coombsville region, included in the petition, is described as “a view of the `cup-and-saucer' area of Coombsville, east of the city of Napa” (“The Winemaker's Dance—Exploring Terroir in the Napa Valley,” Jonathan Swinchatt and David G. Howell, University of California Press, 2004, page 59, figure 34).

According to USGS maps submitted with the petition, the proposed Coombsville viticultural area is nestled in the southeastern region of the Napa Valley viticultural area, between the eastern shores of both the Napa River and Milliken Creek and the western ridgeline of the Vaca Range at the Solano County line. The west-facing, horseshoe-shaped southern tip of the Vaca Range encircles much of the proposed Coombsville viticultural area and defines parts of the northern, eastern, and southern portions of the boundary line, according to the petition, boundary description, and USGS maps.

According to the boundary description in the petition, the eastern portion of the boundary line of the proposed Coombsville viticultural area incorporates straight lines between western peaks of the Vaca Range. The eastern portion of the boundary line corresponds in part to, but does not overlap, the western portions of the boundary lines of the Wild Horse Valley and Solano County Green Valley viticultural areas and stays within Napa County, according to the boundary description in the petition.

As detailed in the boundary description in the petition, the southern portion of the boundary line of the proposed Coombsville viticultural area follows a straight southeast-to-northwest line from a map point in Kreuse Canyon to Imola Avenue, and then continues west on Imola Avenue to the Napa River.

According to the petition, and as visible on the USGS maps, an east-west transverse ridge that climatically protects the Coombsville region from the full impact of the marine influence of the San Pablo Bay lies beyond the proposed southern portion of the boundary line. Commonly known as “Suscol,” “Soscol,” or “Soscol Ridge,” the ridge separates the Coombsville region from large portions of the Napa Valley flood plain's differing soils and broad slough topography. The petition states that the complex terrain of the ridge was difficult to use as a precise and reasonable southern portion of the boundary line for the proposed Coombsville viticultural area petition. Hence, a straight line between two map points and a portion of Imola Avenue was used to define the southern limits of the proposed Coombsville viticultural area. TTB believes that the straight line and Imola Avenue are a reasonable alternative for the proposed southern portion of the boundary line.

According to the boundary description and the USGS Napa Quadrangle map, the western portion of the boundary line of the proposed Coombsville viticultural area relies on portions of the Napa River and Milliken Creek to connect Imola Avenue to the south with Monticello Road to the north. TTB notes that the southwest corner of the proposed viticultural area, at the intersection of Imola Avenue and the Napa River, touches but does notoverlap the eastern portion of the boundary line of the Los Carneros viticultural area.

According to the boundary description, the northern portion of the boundary line of the proposed Coombsville viticultural area uses Monticello Road and a straight line from the road's intersection with the 400-foot contour line eastward to the peak of Mt. George. Much of the length of the proposed northern portion of the boundary line follows a ridge line from the Vaca Range along Milliken Creek, according to the USGS maps submitted with the petition. TTB notes that the northwest corner of the proposed viticultural area, at the intersection of Milliken Creek and Monticello Road, touches but does not overlap the southeast corner of the Oak Knoll District of Napa Valley viticultural area.

Citing a report entitled “The Geologic Origin of the Coombsville Area,” which is an exhibit to the petition, the petition describes the ancient volcanic and crustal uplift events in the geologic history of the Coombsville region (“The Geologic Origin of the Coombsville Area,” EarthVision, Inc., May 2009). According to the petition and the above report, the initial geological event was the eruption and collapse of a volcano that was part of the Napa Valley-Sonoma volcanic series. This process created structural underpinnings for the curved architecture that characterizes the cup-and-saucer topography within the Coombsville region. The eastern part of the Coombsville area is bowl-shaped, reflecting the geologic structure from a caldera landform (ibid.), according to the petition.

The petition states that the next important geologic process began when crustal forces started to uplift and wrinkle the earth crust in the Vaca Range. The uplift progressed from east to west through the Vaca Range. The latest expression of the westward advancing crustal compression is the down-dropped region of Napa Valley and the complementary up-thrown Mayacmas Mountains west of Napa Valley (ibid.).

According to the above report, when the crustal uplift passed through the Coombsville region, the western front of the collapsed caldera slid westward as a large landslide into the valley below (ibid.). The ancient Napa River removed most of the Coombsville landslide debris from the Napa Valley (ibid.).

The petition states that the earth surface materials that cover the proposed Coombsville viticultural area originated in a variety of ways. A thin coat of residual debris on volcanic bedrock covers the hills. Within the collapsed volcanic region, alluvial gravels of the Huichica Formation occur in the northern part and diatomaceous lake deposits occur along the northeast edge of the Coombsville bowl landform. The remainder of the surface material is a variety of alluvial deposits laid down since the ancient volcanic collapse (ibid.).

The petition did not include data on the geology of the surrounding areas.

As shown in the aerial photograph submitted with the petition, a horseshoe-shaped, elevated landform, part of the Vaca Range, is the most notable geographical characteristic of the proposed Coombsville viticultural area (“The Winemaker's Dance—Exploring Terroir in the Napa Valley”). The west-facing horseshoe comprises a ring of volcanic mountains, according to the petition.

The petition states that gentle slopes and rolling terrain extend westward from the Vaca Range and the opening of the horseshoe to the Napa River and Milliken Creek, and that most viticultural activity occurs within this area.

As shown in the aerial photograph referred to above, the elevated cup-and-saucer landform lies partially within the curvature of the horseshoe on the western side of the proposed viticultural area. A small flood plain lies along the proposed western portion of the boundary line near the Napa River and Milliken Creek, the petition explains.

The petition states that the Milliken-Sarco-Tulocay watershed, named after the three main creeks in the region, lies within the proposed Coombsville viticultural area. The cup-and-saucer landform presents a drainage obstacle, making Sarco Creek detour to the north and Tulocay Creek flow to the south. Eventually, all drainage flows to the southwest and joins with the south-flowing Napa River, the petition explains.

According to USGS maps, elevations within the proposed Coombsville viticultural area vary from about 10 feet along Milliken Creek and the Napa River shoreline to 1,877 feet at the peak of Mt. George, at the northeast corner of the proposed Coombsville viticultural area along the western ridge of the Vaca Range. The outer landforms vary from approximately 500 to 1,200 feet in elevation, some having steep terrain. The inner landforms exceed 400 feet in elevation in some areas, and the surrounding gentle slopes and rolling terrain to the north, west, and south, between the inner and outer landforms, varies from approximately 100 to 200 feet in elevation. The flood plain along the western boundary line varies in elevation from 10 to 20 feet along Milliken Creek and the Napa River, according to USGS maps.

According to the petition, the combination of unique landforms and large elevation differences gives the proposed Coombsville viticultural area a fog-protected partial basin with high surrounding ridges. The aerial photograph submitted with the petition shows Coombsville as an isolated niche within the larger, more open terrain of the Napa Valley viticultural area. Also, the USGS maps indicate that the Vaca Range to the east provides a natural geographical boundary for the proposed viticultural area.

According to the USGS maps and the petition, the regions surrounding the proposed Coombsville viticultural area have different geographies. To the northwest of the proposed viticultural area lies the Oak Knoll District of Napa Valley viticultural area, which can be distinguished from the proposed Coombsville viticultural area by its low valley floor elevations and the dry creek alluvial fan. To the west lies the City of Napa. To the southwest lies the Los Carneros viticultural area, which can be distinguished from the proposed viticultural area by its low rolling hills, flatlands, and mountainous terrain. To the southeast lies the Solano County Green Valley viticultural area; it can be distinguished from the proposed Coombsville viticultural area by more rugged terrain. To the east lies the Wild Horse Valley viticultural area, which can be distinguished from the proposed viticultural area by its isolated valley and the surrounding steep, rugged terrain and high elevations. To the northeast are the Vaca Mountains, which can be distinguished from the proposed viticultural area by their rugged terrain.

The petition states that the proposed viticultural area has climatically unique features, including precipitation and heat summation. The petition provides statistical information on the microclimates of the adjacent Los Carneros and Oak Knoll District of Napa Valley viticultural areas, which are both within the larger Napa Valley viticultural area (“The Micro-Climate of the Coombsville Viticultural Area,” Erik Moldstad, Sept. 28, 2009). According to the petitioner, the isolated Wild Horse Valley and Solano County Green Valleyviticultural areas, to the immediate east of the proposed Coombsville viticultural area, lack available weather station data. In considering this petition, TTB obtained historic weather station data for surrounding north, east, south, and west regions within 15 miles or less of the proposed Coombsville viticultural area (Lake Berryessa, Fairfield, Napa State Hospital, and the City of Napa, respectively) from the Western Region Climate Center (WRCC) Web site, created in partnership with the National Climatic Data Center, Regional Climate Centers, and State Climate Offices.

The table below presents average annual precipitation amounts and heat summation range totals for the Coombsville region, the Los Carneros and Oak Knoll District of Napa Valley viticultural areas, and the surrounding north, east, south, and west weather station areas. The table data is based primarily on petition documentation and also TTB's WRCC Web site data research.

The table shows that precipitation in the proposed Coombsville viticultural area averages 19.14 inches annually, and varies significantly from the surrounding viticultural microclimates. The Coombsville region is warmer and wetter than the Los Carneros viticultural area to the southwest and cooler and drier than the Oak Knoll District of Napa Valley viticultural area to the northwest, according to Michael Wolf, owner of Michael Wolf Vineyard Services. To the northwest, the Oak Knoll District of Napa Valley viticultural area averages 2.5 inches more annual rainfall, or 113 percent of the Coombsville regional average. To the southwest, the Los Carneros viticultural area has about 2 inches less rainfall annually, or about 90 percent of the Coombsville regional average. The data in the table indicates that the proposed Coombsville viticultural area averages 3.63 to 5.47 inches less precipitation annually than the four surrounding areas for which weather station data was obtained by TTB.

The growing season in the proposed Coombsville viticultural area is measured in the Winkler climate classification system (“General Viticulture,” Albert J. Winkler, University of California Press, 1974, pages 61-64). In the Winkler system, heat accumulation per year defines climatic regions. As a measurement of heat accumulation during the growing season, 1 degree day accumulates for each degree Fahrenheit that a day's mean temperature is above 50 degrees, which is the minimum temperature required for grapevine growth. Climatic region I has less than 2,500 growing degree days (GDD) per year; region II, 2,501 to 3,000; region III, 3,001 to 3,500; region IV, 3,501 to 4,000; and region V, 4,001 or more (ibid.).

According to the table, the Coombsville region is a low Winkler region II (2,550 GDD units), which is cooler by 61 to 683 degree units than the four surrounding areas from which weather station data was obtained by TTB. The coolest of the four areas is Lake Berryessa to the north at 2,611 GDD units (region II), and the warmest is the City of Napa to the west at 3,233 GDD units (region III). Also, the adjacent Oak Knoll District of Napa Valley viticultural area is significantly warmer at 2,888 GDD units, a high Winkler region II. The adjacent Los Carneros viticultural area is Winkler region I at 2,435 GDD units.

The petition states that significant viticultural factors for the Coombsville region growing season include the amount of solar radiation and daytime heating. The solar radiation and heating are affected by the dissipation rate of morning fog, followed by the number of hours of sunshine, and then the onset of afternoon cooling bay breezes from San Pablo Bay, the petition explains.

The petition states that the effects of the presence and disappearance of fog from the Napa Valley region in the day alters the temperature rise in the grape-growing season. Temperature and sunlight have subtle effects on grape development that, over the growing season, profoundly affect grape ripening times and flavors. The pace of sugar accumulation and the pace of the lessening of acidity during grape ripening are two examples of how the fog affects grape development. The petition notes that grape growers in the cooler Los Carneros viticultural area, to the south and closer to the foggy bay, harvest grapes with similar sugar and acidity levels for the same varietal as in the Coombsville region, but do so later in the growing season. Also, to the north of the Coombsville region, in the warmer and less foggy Oak Knoll District of Napa Valley viticultural area, the same varietals with similar sugar and acid levels are harvested earlier than in the Coombsville and Los Carneros areas, according to the petition.

The petition explains that the Coombsville region has more solar radiation and daytime heat than the Los Carneros viticultural area to the southwest and less than the Oak Knoll District of Napa Valley viticultural area to the northwest. The morning fog generally dissipates about 1 to 2 hours earlier in the Coombsville region than in the Los Carneros viticultural area to the southwest, and an hour later than in the Oak Knoll District of Napa Valley viticultural area to the northwest. Also, in the afternoon, the bay breezes first cool the Los Carneros viticultural area, then spread slowly northward through the Coombsville region into the Oak Knoll District of Napa Valley viticultural area, and eventually continue northward up the Napa Valley, the petition states.

According to the petition, as the San Pablo Bay afternoon breezes reach northward to each micro-climate in theNapa Valley region, the air temperature incrementally stops rising, or slightly decreases. Cool breezes create the differences in maximum growing temperatures for the south-to-north locations of the Los Carneros viticultural area, the Coombsville region, Oak Knoll District of Napa Valley viticultural area, and other Napa Valley viticultural areas, the petition explains.

The petition explains that the soils of the proposed Coombsville viticultural area are generally well drained and of volcanic origin. Upland soils are weathered from their primary volcanic source, while lowland soils are alluvial in nature (“A Custom Soil Resource Report for Napa County, California—Coombsville Soils,” Natural Resources Conservation Service, United States Department of Agriculture,http://websoilsurvey.nrcs.usda.gov/,May 27, 2009). The petitioner provided the following table, which shows the percentages of the predominant soils in the proposed Coombsville viticultural area as compared to surrounding regions, based on information contained in this report.

The Hambright-Rock outcrop complex makes up 28.5 percent of the Coombsville area, as shown on the above table and is found in lesser concentrations to the north, east, and south. The complex is found in the Vaca Range and makes up most of the cup-and-saucer landform soils (ibid.).

Coombs gravelly and stony loams represent 24.1 percent of the soils in the Coombsville area, and are found in lesser concentrations to the north, east, and west, as shown on the above table. In addition, those soils are the main types appropriate for grape growing in the Coombsville region. They are alluvial, well drained soils at elevations of 50 to 500 feet. The Coombs soils are “relatively unique to the area,” and they were likely first identified in the Coombsville area, according to the petition. Coombs soils make up only 1.7 percent of the soils in Napa County, but they account for almost a quarter of the Coombsville region soils (ibid.).

As shown on the table, Sobrante soils make up 15.5 percent of the Coombsville region, 16 percent to the east in Wild Horse Valley, and a much lesser concentration to the northwest. These soils are well drained and are at elevations of 120 feet and higher. In addition, some Sobrante soils are used for viticulture in the southeast corner of the proposed Coombsville viticultural area (ibid.).

As shown on the table, soils found in lesser concentrations in the proposed Coombsville viticultural area include Haire and Cole, which have higher concentrations in three of the surrounding areas.

The North Coast viticultural area was established by T.D. ATF-145, which was published in theFederal Register(48 FR 42973) on September 21, 1983. It includes all or portions of Napa, Sonoma, Mendocino, Solano, Lake, and Marin Counties, California. TTB notes that the North Coast viticultural area contains all or portions of approximately 40 established viticultural areas, in addition to the area covered by the proposed Coombsville viticultural area. In the conclusion of the “Geographical Features” section of the preamble, T.D. ATF-145 states that “[d]ue to the enormous size of the North Coast, variations exist in climatic features such as temperature, rainfall, and fog intrusion.”

The proposed Coombsville viticultural area shares the basic viticultural feature of the North Coast viticultural area: the marine influence that moderates growing season temperatures in the area. However, the proposed viticultural area is much more uniform in its geography, geology, climate, and soils than the diverse multicounty North Coast viticultural area. In this regard, TTB notes that T.D. ATF-145 specifically states that “approval of this viticultural area does not preclude approval of additional areas, either wholly contained with the North Coast, or partially overlapping the North Coast,” and that “smaller viticultural areas tend to be more uniform in their geographical and climatic characteristics, while very large areas such as the North Coast tend to exhibit generally similar characteristics, in this case the influence of maritime air off of the Pacific Ocean and San Pablo Bay.” Thus, the proposal to establish the Coombsville viticultural area is not inconsistent with what was envisaged when the North Coast viticultural area was established.

The Napa Valley viticultural area was established by T.D. ATF-79, which was published in theFederal Register(46 FR 9061) on January 28, 1981, includes most of Napa County, California. TTB notes that the Napa Valley viticultural area encompasses 14 existing smaller viticultural areas, in addition to the area covered by the proposed Coombsville viticultural area. The Napa Valley viticultural area encompasses “all the areas traditionally known as `Napa Valley' which possess generally similar viticulture characteristics different from those of the surrounding areas,” according to T.D. ATF-79.

The Coombsville petition states that a Mediterranean climate of warm, dry summers and cool, moist winters dominate the Napa Valley region. Air temperatures in the valley increase from south to north based on the dissipation of the marine fog and cooling winds from the San Pablo Bay to the south. Precipitation amounts are greater at the north end of the valley, at higher elevations, and in the Mayacmas Mountains on the west side of the valley. Sun exposure is greater on the east side of Napa Valley along the southwest face of the Vaca Range,including the Coombsville region, as compared to the western valley foothills of the Mayacmas Mountains, according to the petition.

According to T.D. ATF-79, the Napa Valley viticultural area contains varieties of both Coombs and Sobrante soils, which are prominent in the Coombsville region. It also includes other soil types, including Bale, Cole, Yolo, Reyes, and Clear Lake, T.D. ATF-79 states. The latter soil types are not prominent or are not present in the proposed Coombsville viticultural area, according to the petition. Thus, while the characteristics of the proposed Coombsville viticultural area are generally similar to those of the Napa Valley viticultural area, there are some distinguishing characteristics that may warrant its separate designation as a viticultural area.

TTB concludes that the petition to establish the 11,075-acre Coombsville American viticultural area merits consideration and public comment, as invited in this notice.

See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.

The petitioner provided the required maps, and TTB lists them below in the proposed regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If TTB establishes this proposed viticultural area, its name, “Coombsville,” will be recognized as a name of viticultural significance under 27 CFR 4.39(i)(3). The text of the new regulation clarifies this point. Consequently, wine bottlers using “Coombsville” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin.

For a wine to be labeled with a viticultural area name or with a brand name that includes a viticultural area name or other term identified as being viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with the viticultural area name or other viticulturally significant term and that name or term appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term of viticultural significance appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label.

Different rules apply if a wine has a brand name containing a viticultural area name or other viticulturally significant term that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

TTB invites comments from interested members of the public on whether the Bureau should establish the proposed viticultural area. TTB also is interested in receiving comments on the sufficiency and accuracy of the name, boundary, climate, soils, and other required information submitted in support of the petition. In addition, given the proposed Coombsville viticultural area's location within the existing Napa Valley and North Coast viticultural areas, TTB is also interested in comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed viticultural area sufficiently differentiates the proposed viticultural area from those existing viticultural areas. TTB is also interested in comments regarding whether the geographic features of the proposed viticultural area are so distinguishable from the surrounding Napa Valley and North Coast viticultural areas that the proposed Coombsville viticultural area should no longer be part of those viticultural areas. Please provide any available specific information in support of your comments.

Because of the potential impact of the establishment of the proposed Coombsville viticultural area on wine labels that include the words “Coombsville,” as discussed above under “Impact on Current Wine Labels,” TTB is particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. As noted above, four bottling wineries that currently use the “Coombsville” name on one or more of their wine labels have provided written assurance to TTB that, should the Coombsville viticultural area be approved, these label holders will comply with the regulatory requirement that at least 85 percent of any wine with “Coombsville” on the label is derived from grapes grown within the Coombsville viticultural area.

If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example by adopting a modified or different name for the viticultural area.

You may submit comments on this notice by using one of the following three methods:

•Federal e-Rulemaking Portal:You may send comments via the online comment form posted with this notice within Docket No. TTB-2011-0006 on “Regulations.gov,” the Federal e-rulemaking portal, athttp://www.regulations.gov. A direct link to that docket is available under Notice No. 119 on the TTB Web site athttp://www.ttb.gov/wine/wine_rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.”

•U.S. Mail:You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

•Hand Delivery/Courier:You may hand-carry your comments or have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Suite 200-E, Washington, DC 20005.

Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 119 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.

If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment viaRegulations.gov, please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail, please submit your entity's comment on letterhead.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

On the Federal e-rulemaking portal, Regulations.gov, TTB will post, and you may view, copies of this notice, selected supporting materials, and any electronic or mailed comments TTB receives about this proposal. A direct link to the Regulations.gov docket containing this notice and the posted comments received on it is available on the TTB Web site athttp://www.ttb.gov/wine/wine_rulemaking.shtmlunder Notice No. 119. You may also reach the docket containing this notice and the posted comments received on it through the Regulations.gov search page athttp://www.regulations.gov.

All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that the Bureau considers unsuitable for posting.

You also may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Contact TTB's information specialist at the above address or by telephone at 202-453-2270 to schedule an appointment or to request copies of comments or other materials.

TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

The Regulations and Rulings Division drafted this notice.

For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas and lists the approved American viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and a name and delineated boundary as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.12 of the TTB regulations prescribes standards for petitions for the establishment or modification of American viticultural areas. Such petitions must include the following:

• Evidence that the area within the viticultural area boundary is nationally or locally known by the viticultural area name specified in the petition;

• An explanation of the basis for defining the boundary of the viticultural area;

• A narrative description of the features of the viticultural area that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make it distinctive and distinguish it from adjacent areas outside the viticultural area boundary;

• A copy of the appropriate United States Geological Survey (USGS) map(s) showing the location of the viticultural area, with the boundary of the viticultural area clearly drawn thereon; and

• A detailed narrative description of the viticultural area boundary based on USGS map markings.

TTB received a petition from R. Paul Beveridge, owner of Wilridge Winery and Vineyard, to establish the “Naches Heights” American viticultural area in the State of Washington. The proposed Naches Heights viticultural area is located entirely within the larger Columbia Valley viticultural area (27 CFR 9.74) of Washington and Oregon. The city of Yakima lies to the southeast of the proposed viticultural area in a valley at lower elevations.

According to the petition, the proposed Naches Heights viticultural area encompasses 13,254 acres and contains 105 acres of commercial vineyards either producing or expecting to produce wine grapes in the foreseeable future. Recent plantings include 74 acres in 2009 and 15 acres in 2010, according to the petition, in addition to an earlier 16 acres of wine grape producing vines.

The “Naches Heights” name applies to an elevated plateau area in Yakima County, Washington, according to the petition and USGS maps. The USGS topographical maps of Naches, Selah, Yakima West, and Wiley City are used in the written boundary description in the petition to define the boundary of the proposed viticultural area. The area between the Naches River and Cowiche Creek is identified as “Naches Heights”on the USGS maps as well as on a public lands map (Yakima Public Lands Quadrangle map, 2001, Washington State Department of Natural Resources), according to the petition.

TTB notes that a search of the USGS Geographical Names Information System (GNIS) describes Naches Heights as a summit in Yakima County, Washington. Also, a general internet search for “Naches Heights” produced many hits relating to the geographical region in which the proposed viticultural area falls.

The petition provided evidence of local usage of the name “Naches Heights,” including listings for the “Naches Heights Community Center” and the “Little Store on Naches Heights” in The DexOnline.com, Qwest, 2008 Yakima Valley telephone directory. The petition also included multiple articles from the Yakima Herald-Republic referring to “Naches Heights,” including an October 22, 2008, obituary of Albert Robert Couchman, who had worked in orchards in Naches Heights; an October 24, 2008, article about a cross-country competition entitled “Local Report: GNAC's best heading to Naches Heights”; and an October 26, 2008, article entitled “Naches Heights: Senior Marcie Mullen turned in Central Washington University's top performance in Saturday's GNAC cross country championship * * *.” In addition, the petition included a 1990 Cowiche Canyon brochure issued by the Bureau of Land Management's Spokane District that contained a drawing showing the Naches Heights geographical area, with Cowiche Canyon to the immediate west at lower elevations.

According to USGS maps submitted with the petition, the Naches Heights plateau landform is surrounded by lower elevation valleys and the lower Tieton River to the west, the Naches River to the north and east, and Cowiche Creek to the south and west. The man-made Congdon (Schuler) Canal is located along a portion of the proposed eastern boundary line, closely following the 1,300-foot elevation line. TTB notes that these landforms are distinguishable on both the aerial photographs and the USGS maps submitted with the petition.

The Columbia Valley viticultural area was established by T.D. ATF-190, published in theFederal Register(49 FR 44895) on November 13, 1984. It was described as a large, treeless basin surrounding the Yakima, Snake, and Columbia Rivers in portions of Washington and Oregon. The topography of the Columbia Valley viticultural area was described as a rolling terrain, cut by rivers and broken by long, sloping, basaltic, east-west uplifts. In addition, T.D. ATF-190 stated that the Columbia Valley viticultural area is dominated by major rivers and has a long, dry growing season. The Naches Heights petition notes that the ancient Missoula Floods carved much of the basin geography within the Columbia Valley AVA.

The proposed Naches Heights viticultural area is 0.001 percent the size of the 11.6 million-acre Columbia Valley viticultural area, within which it is situated. It is a single, elevated Tieton andesite plateau landform that ends in andesite cliffs that descend into the valleys surrounding the plateau. Although this landform is part of the Columbia Valley viticultural area, with which it generally shares a similar climate, it is geographically and geologically distinguishable from the surrounding portions of the Columbia Valley viticultural area, according to the petition. The relatively flat terrain of the plateau gently increases in elevation over the 11 miles from southeast to northwest, as shown on the USGS maps, and the entire plateau is elevated over the surrounding valleys. Unlike the rest of the Columbia Valley, no major rivers cross the plateau landscape, although it contains several intermittent streams and small ponds.

The petition states that geology, geography, and soils distinguish the proposed viticultural area from the surrounding areas.

The petition states that approximately one million years ago, the termination of andesite flow from the Cascade Mountains down the valley of the Tieton River formed the Naches Heights plateau. The proposed Naches Heights viticultural area is located on, and encompasses, a geological formation of Tieton andesite, a volcanic rock.

According to the petition, in contrast to the Naches Heights plateau, there are alluvial deposits, including those that are terraced and older, to the north, east, and south of the proposed viticultural area. To the west of the area are alluvial deposits and Grande Ronde Basalt, Ringold Formation gravels, the Ellensburg Formation, and the Cascade Mountains.

The petition states that the proposed Naches Heights viticultural area is a plateau that terminates in cliffs of andesite to the north, east, and south. The andesite cliffs distinguish the proposed viticultural area from the Naches River Valley, the Cowiche Creek Valley, and the nearby Yakima River Valley. The USGS maps show that the Naches Heights plateau is elevated in comparison to the surrounding river and creek valleys. Aerial photos submitted with the petition also show the Naches Heights plateau landform and the cliffs that surround it in contrast with the surrounding lower elevation valleys.

On the far west side of the proposed viticultural area, the andesite cliffs are subsumed by the foothills of the Cascade Mountains, according to the petition and the USGS maps. Although not distinguished by steep cliffs, the proposed western boundary line marks the end of andesite rocks and the beginning of the Cascade Mountains foothills, as shown in an aerial photo submitted with the petition. Elevations gradually rise heading west and northwest of the Naches Heights into the Cascade Mountains and the 3,578-foot Bethel Ridge. The high mountainous elevations to the west create a rain shadow effect that protects the Naches Heights plateau from Pacific winter storms.

Elevations on the Naches Heights and along the Tieton andesite cliffs also distinguish the plateau from the surrounding regions, according to the petition. As explained in the petition, cold air drains off the plateau and into the surrounding valleys, thereby reducing potential frost damage and winterkill to vineyards on the Naches Heights. The lowest elevations of the proposed viticultural area are approximately 1,200 feet, which is at the tip of the andesite flow at the far eastern edge of the proposed viticultural area. From this point, the cliffs rise to 1,400 feet, according to the USGS maps. The highest elevation of the plateau, located near the far western end of the proposed viticultural area, is approximately 2,100 feet, at which point the cliffs drop immediately to 1,600 feet. The Yakima City Hall lies to the southeast of the proposed viticultural area at 1,061 feet, a significantly lower elevation than that of the Naches Heights.

After the volcanic flow of andesite cooled and hardened to form the Naches Heights plateau, pockets of loess, or wind-blown soil, were deposited on theplateau, according to the petition. After a period of about 1 million years marked by winds and volcanic eruptions in the Cascades, deep beds of unique soils formed in the loess pockets on the plateau. The predominant soils on the plateau are Tieton loam and Ritzville silt loam (U.S. Department of Agriculture, National Resource Conservation Service, Web Soil Survey athttp://websoilsurvey.nrcs.usda.gov/). According to the petition, the only major difference between Tieton loam and Ritzville silt loam is that the latter formed in deeper pockets of loess, thus creating a very consistent soil type throughout the proposed viticultural area.

The Naches Heights plateau landform, according to the NRCS web soil survey, has generally deep loess soils with adequate drainage and deep rooting depths conducive to successful viticulture. Further, the grape vine roots are not prone to freezing, or winterkill, in the deep plateau soils.

Unlike the plateau, much of the greater Columbia Valley region that surrounds the Naches Heights was covered by alluvial material deposited by the ancient Missoula Floods, according to the petition. Hence, the proposed viticultural area is surrounded mainly by gravelly alluvial soils readily distinguishable from the Tieton loam and Ritzville silt loam of Naches Heights. Harwood loam, a transitional soil formed in both loess and alluvium, is located in small areas of the southern portion of the Naches Heights that is outside the boundary line of the proposed viticultural area.

Rocks, cobbles, and shallow rooting depths are characteristics of the lower elevation valley region that surrounds the Naches Heights plateau, according to the NRCS data. In the valley region, the cold air from the surrounding mountain elevations drains onto the valley floor and ponds to create stagnant, cold air environments that make vine growth difficult during some seasons, the petition explains. Unlike the Naches Heights soils, the valley and floodplain soils, including the Weirman, Wenas, and Kittitas series, are subject to seasonal flooding and a water table close to the surface of the soil, according to NRCS data. In addition, the valley vines have shallow rooting depths that can reach the water table and be frozen during extreme cold weather. Further, seasonal flooding can affect some portions of the surrounding valley area.

TTB concludes that the petition to establish the 13,254-acre “Naches Heights” American viticultural area merits consideration and public comment as invited in this notice.

See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.

The petitioner provided the required maps, and TTB lists them below in the proposed regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If TTB establishes this proposed viticultural area, its name, “Naches Heights,” will be recognized as a name of viticultural significance under 27 CFR 4.39(i)(3). The text of the proposed regulation clarifies this point. Consequently, wine bottlers using “Naches Heights” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin.

On the other hand, TTB does not believe that any single part of the proposed viticultural area name standing alone, such as “Naches,” would have viticultural significance if the new area is established. Accordingly, the proposed part 9 regulatory text set forth in this document specifies only the full “Naches Heights” name as a term of viticultural significance for purposes of part 4 of the TTB regulations.

For a wine to be labeled with a viticultural area name or with a brand name that includes a viticultural area name or other term identified as being viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with the viticultural area name or other viticulturally significant term and that name or term appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term of viticultural significance appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a previously approved label uses the name “Naches Heights” for a wine that does not meet the 85 percent standard, the previously approved label will be subject to revocation upon the effective date of the approval of the Naches Heights viticultural area.

Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

TTB invites comments from interested members of the public on whether the Bureau should establish the proposed Naches Heights viticultural area. TTB is interested in receiving comments on the sufficiency and accuracy of the name, boundary, climatic, and other required information submitted in support of the petition. TTB is also interested in any comments on whether the evidence regarding name and distinguishing features is sufficient to warrant the establishment of this new viticultural area within the existing Columbia Valley viticultural area. In addition, TTB is interested in comments regarding whether the geographical features of the proposed viticultural area are so distinguishable from the surrounding Columbia Valley viticultural area that the proposed Naches Heights viticultural area should no longer be part of the Columbia Valley viticultural area. Please provide any available specific information in support of your comments.

Because of the potential impact of the establishment of the proposed Naches Heights viticultural area on wine labels that include the words “Naches Heights” as discussed above under “Impact on Current Wine Labels,” TTB is also particularly interested in comments regarding whether there will be a conflict between the proposed viticulturally significant term and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example by adopting a modified or different name for the viticultural area.

You may submit comments on this notice by using one of the following three methods:

•Federal e-Rulemaking Portal:You may send comments via the online comment form posted with this notice in Docket No. TTB-2011-0005 on “Regulations.gov,” the Federal e-rulemaking portal, athttp://www.regulations.gov. A direct link to that docket is available under Notice No. 118 on the TTB Web site athttp://www.ttb.gov/wine/wine_rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.”

•U.S. Mail:You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

•Hand Delivery/Courier:You may hand-carry your comments or have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Suite 200-E, Washington, DC 20005.

Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 118 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.

If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment viahttp://www.regulations.gov,please enter the entity's name in the “Organization” blank of the comment form. If you comment via mail, please submit your entity's comment on letterhead.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

On the Federal e-rulemaking portal, Regulations.gov, TTB will post, and you may view, copies of this notice, selected supporting materials, and any electronic or mailed comments TTB receives about this proposal. A direct link to the Regulations.gov docket containing this notice and the posted comments received on it is available on the TTB Web site athttp://www.ttb.gov/wine/wine_rulemaking.shtmlunder Notice No. 118. You may also reach the docket containing this notice and the posted comments received on it through the Regulations.gov search page athttp://www.regulations.gov.

All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. TTB may omit voluminous attachments or material that TTB considers unsuitable for posting.

You also may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments that TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Contact TTB's information specialist at the above address or by telephone at 202-443-2270 to schedule an appointment or to request copies of comments or other materials.

TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

N.A. Sutton of the Regulations and Rulings Division drafted this notice.

For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

Section 508 of the Rehabilitation Act requires federal agencies that develop, procure, maintain, or use electronic and information technology to “ensure, unless undue burden would be imposed on the department or agency,” that this technology allows (1) federal employees who are individuals with disabilities “to have access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities,” and (2) members of the public who are individuals with disabilities and are “seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.” 29 U.S.C. 794d(a)(1)(A). In the event that this requirement imposes an undue burden, federal agencies must provide the relevant information and data using an “alternative means.” 29 U.S.C. 794(a)(1)(B). An administrative complaint filed for an alleged violation of section 508 of the Rehabilitation Act must be filed with the agency “alleged to be in noncompliance,” and must be processed by the agency using “the complaint procedures established to implement” section 504 of the Rehabilitation Act. 29 U.S.C. 794d(f)(2). Therefore, OSHRC is proposing to amend its procedures in part 2205, which effectuates section 504, to also incorporate the requirements set forth in section 508.

Exercising its statutory authority under section 508 of the Rehabilitation Act, 29 U.S.C. 794(a)(2), the Architectural and Transportation Barriers Compliance Board (“Access Board”) has issued standards for electronic and information technology, 36 CFR part 1194. These standards define electronic and information technology for purposes of section 508 and provide the technical and functional performance criteria necessary to implement the accessibility requirements specified above. As detailed below, in amending part 2205, OSHRC relies on the definitions and requirements set forth in the Access Board's standards.

Turning to the specific amendments, OSHRC proposes adding a sentence to § 2205.101 (“Purpose”) indicating that part 2205 effectuates section 508 and summarizing the purpose of thatsection. OSHRC also proposes adding a clause to § 2205.102 (“Application”) indicating that part 2205 applies to the agency's “development, procurement, maintenance, and use of electronic and information technology,” and a new section at § 2205.135 (“Electronic and information technology requirements”) that thoroughly explains the agency's responsibilities under section 508. The proposed additions are consistent with language used by the Access Board. 36 CFR 1194.1, .2. Additionally, in § 2205.103 (“Definitions”), OSHRC proposes (1) adding a definition describing the source material for section 508—a similar sentence already exists describing the source material for section 504; (2) adding the definitions of “Electronic and Information technology” and “Information technology” set forth by the Access Board, 39 CFR 1194.4; and (3) revising the definition of “Complete complaint” to indicate its coverage of violations alleged under section 508, as well as section 504. Further, OSHRC proposes adding language to § 2205.111 (“Notice”) to extend the notice requirements to section 508.

OSHRC also proposes revising the procedures in § 2205.170 (“Compliance procedures”) to provide more detailed instructions for filing and processing complaints and appeals alleging violations of section 504, and to incorporate instructions for those who allege violations of section 508. As noted, section 508 directs agencies to use the same procedures for processing section 508 complaints as they use for section 504 complaints. The EEOC, however, recently explained in its own notice of rulemaking that “[t]he part 1614 process is reserved for complaints alleging employment discrimination,” and that an allegation under section 508 of “discrimination in access to electronic and information technology * * * is outside the scope of part 1614.” Therefore, the proposed revisions to § 2205.170(a) and (b) make clear that part 1614 is not applicable to section 508 complaints, but that OSHRC's procedures specifically set forth in its regulations are applicable to both section 504 and 508 complaints.

In addition to amendments resulting from section 508, OSHRC is proposing the following deletions, and corrections and amendments to part 2205. As to the proposed deletions, several provisions include compliance deadlines that have already expired. Section 2205.110 requires that OSHRC complete, by August 24, 1987, a self-evaluation of policies and practices that do not or may not meet the requirements of the regulation. It further requires that a description of areas examined, problems identified, and modifications made be kept on file for at least three years. Also, paragraph (c) of § 2205.150 requires OSHRC to “comply with the obligations established under [paragraphs (a) and (b)] by October 21, 1986, except that where structural changes in facilities are undertaken, such changes shall be made by August 22, 1989, but in any event as expeditiously as possible”; and paragraph (d) of that provision requires OSHRC to “develop, by February 23, 1987, a transition plan setting forth the steps necessary to complete [structural changes to facilities]” in the event that such changes are required. Because the latest of these given time frames has long passed, § 2205.110 and paragraphs (c) and (d) of § 2205.150 should be deleted.

Also, the cross-references in several provisions are outdated. The fourth definition of “qualified handicapped person,” found at § 2205.103, cross-references 29 CFR 1613.702(f), and two other provisions—§§ 2205.140 and .170(b)—cross-reference 29 CFR part 1613. Part 1613, however, was superseded by part 1614 in 1992. Federal Sector Equal Employment Opportunity, 57 FR 12634 (Apr. 10, 1992) (final rule). The current version of § 1614.203(b) cross-references and adopts all definitions in part 1630, and the definition of “qualified individual with a disability” is at 29 CFR 1630.2(m). Therefore, the cross-reference in § 2202.103 should be changed to 29 CFR 1630.2(m), and the cross-reference to part 1613 in §§ 2205.140 and .170(b) should be changed to part 1614. Further, § 2205.151 cross-references 41 CFR 101-19.600 to 101-19.607, which previously set forth the standard for the Architectural Barriers Act, 42 U.S.C. 4151-4157. In 2002, the regulatory provisions pertaining to the standard were re-designated as 41 CFR 102-76.60 to 102-76.95. Real Property Policies, 67 FR 76882 (Dec. 13, 2002) (final rule). Section 2205.151 should therefore be amended to reflect this re-designation.

Additionally, only the acronym for “telecommunication devices for deaf persons” should be used in § 2205.160, as both the phrase and acronym already appear in § 2205.103; the head of the agency should be referred to as the “Chairman” throughout the part, as this term is used in the OSH Act itself, 29 U.S.C. 661(a); and, in § 2205.103, additional legislative history should be added to the definition of “Section 504.” Finally, the 1992 amendments to the Rehabilitation Act, Public Law 102-569, 106 Stat. 4344, which replaced the term “handicap” with the term “disability,” requires that OSHRC, in turn, similarly amend all such references in part 2205.

Executive Orders 12866 and 13132, and the Unfunded Mandates Reform Act of 1995:OSHRC is an independent regulatory agency and, as such, is not subject to the requirements of E.O. 12866, E.O. 13132, or the Unfunded Mandates Reform Act, 2 U.S.C. 1501et seq.

Regulatory Flexibility Act:OSHRC certifies under the Regulatory Flexibility Act, 5 U.S.C. 605(b), that these rules, if adopted, would not have a significant economic impact on a substantial number of small entities, because it applies exclusively to a federal agency and individuals accessing the services of a federal agency. For this reason, a regulatory flexibility analysis is not required.

Paperwork Reduction Act of 1995:OSHRC has determined that the Paperwork Reduction Act, 44 U.S.C. 3501et seq.,does not apply because these rules do not contain any information collection requirements that require the approval of OMB.

Congressional Notification:This proposed rule is not a major rule under the Congressional Review Act, 5 U.S.C. 804(2).

For the reasons set forth in the preamble, OSHRC proposes that Chapter XX, Part 2205 of Title 29, Code of Federal Regulations, is revised to read 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-2011-0277), 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-2011-0277” 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 preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0277” 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.

On August 13, 2011 from 8:30 a.m. to 12 p.m. The Organization to Support the Arts, Infrastructure, and Learning on Lake Gaston, also known as O'SAIL, will sponsor “The Crossing” on the waters of Lake Gaston, adjacent to Enterprise, North Carolina. The swim event will consist of approximately 200 swimmers entering Lake Gaston at the Morning Star Marina on the north bank of Lake Gaston, east of the Eaton Ferry Bridge, and swimming south along the eastern side of Eaton Ferry Bridge to the Waterview Restaurant. A fleet of spectator vessels are expected to gather near the event site to view the competition. To provide for the safety of the participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during this event.

In an effort to enhance safety of event participants the channel in the vicinity of Eaton Ferry Bridge will remain closed during event on August 13, 2011 from 8:30 a.m. to 12 p.m. The Coast Guard will temporarily restrict access to this section of Lake Gaston during the event.

The Coast Guard proposes to establish Special Local Regulations that will restrict vessel movement on the specified waters of Lake Gaston, Enterprise, NC. During the Marine Event no vessel will be allowed to transit the waterway unless the vessel is given permission from the Patrol Commander to transit.

The Special Local Regulation will encompass the waters of Lake Gaston under the Eaton Ferry Bridge, latitude 36°31′06″ North, longitude 077°57′37″ West, and within 100 yards of the eastern side of Eaton Ferry Bridge. All vessels are prohibited from transiting this section of the waterway while the regulation is in effect. Entry into the regulated area will not be permitted except as specifically authorized by the Captain of the Port or a designated representative. To request permission to transit the area, mariners may contact Coast Guard Sector North Carolina at (252) 247-4570. The regulated area will be enforced from 8:30 a.m. to 12 p.m. on August 13, 2011. This proposed restriction on vessel movement on and access to this waterway is aimed at protecting the safety of the swimmers participating in the event.

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 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, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that those Orders.

Although this regulation will restrict access to the area, the effect of this rule will not be significant because the regulated area will be in effect for a limited time, from 8:30 a.m. to 12 p.m., on August 13, 2011. The Coast Guard will give advance notification via maritime advisories so mariners can adjust their plans accordingly, and the regulated area will apply only to the section of Lake Gaston in the immediate vicinity of the Eaton Ferry Bridge. 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 vessels intending to transit the specified portion of Lake Gaston from 8:30 a.m. to 12 p.m. on August 13, 2011.

This rule 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 3 and one-half hours from 8:30 a.m. to 12 p.m. The regulated area applies only to the section of Lake Gaston in the vicinity of the Eaton Ferry Bridge and traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the swim course. The Patrol Commander will allow non-participating vessels to transit the event area once all swimmers are safely clear of navigation channels and vessel traffic areas. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

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 (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If 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, Coast Guard 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 ExecutiveOrder 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, under figure 2-1, paragraph 34(h) of the Instruction, that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated underADDRESSES. This proposed rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. This special local regulation is necessary to provide for the safety of the general public and event participants from potential hazards associated with movement of vessels near the event area. 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 100 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-2011-0264), 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-2011-0264” 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 preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0264” 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.

Currently, 33 CFR 165.929 lists eighty-three different locations in the Captain of the Port Lake Michigan zone at which safety zones have been permanently established. Each of these eighty-three safety zones correspond to an annually recurring marine event. On April 1, 2011, the Coast Guard refined the internal boundaries of its Ninth District, resulting in changes to the Captain of the Port Lake Michigan zone. Consequently, eleven of the aforementioned eighty-three safety zones are now located within Captain of the Port Sault Ste. Marie zone. In addition to the boundary change initiated by the Coast Guard, the details of four of the annually recurring events have changed. Finally, the Captain of the Port, Sector Lake Michigan has determined that three additional recurring marine events require the implementation of permanent safety zones.

This proposed rule will amend the regulations found in 33 CFR 165.929, Annual Events requiring safety zones in the Captain of the Port Lake Michigan zone. Specifically, this proposed rule will revise § 165.929 in its entirety. The revision will include the deletion of eleven of the safety zones; the modification of the name, location, and enforcement periods of four other safety zones; and the addition of three new safety zones. These safety zones are necessary to protect vessels and people from the hazards associated withfirework displays, boat races, and other marine events. Such hazards include obstructions to the navigable channels, explosive dangers associated with fireworks, debris falling into the water, high speed boat racing, and general congestion of waterways. Although this proposed rule will remain in effect year round, the safety zones within it will be enforced only immediately before, during, and after each corresponding marine event.

The Captain of the Port, Sector Lake Michigan, will notify the public when the safety zones in this proposal will be enforced. In keeping with 33 CFR 165.7(a), the Captain of the Port, Sector Lake Michigan, will use all appropriate means to notify the affected segments of the public. This will include, as practicable, publication in theFederal Register, Broadcast Notice to Mariners and/or Local Notice to Mariners. The Captain of the Port, Sector Lake Michigan, will, as practicable, issue a Broadcast Notice to Mariners notifying the public when any enforcement period is cancelled.

Entry into, transiting, or anchoring within each of the proposed safety zones is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative. All persons and vessels permitted to enter one of the safety zones established by this proposed rule shall comply with the instructions of the Captain of the Port, Sector Lake Michigan, or his or her designated representative. The Captain of the Port, Sector Lake Michigan, or his or her designated representative may be contacted via VHF Channel 16.

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

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

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners and operators of vessels intending to transit or anchor in any one of the below established safety zones while the safety zone is being enforced. These safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: Each safety zone in this proposed rule will be in effect for only a few hours within any given 24 hour period. Each of the safety zones will be in effect only once per year. Furthermore, these safety zones have been designed to allow traffic to pass safely around each zone. Moreover, vessels will be allowed to pass through each zone at the discretion of the Captain of the Port, Sector Lake Michigan, or his or her designated representative.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact BM1 Adam Kraft, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7154. 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 calls 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 will not affect the 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 proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this preliminary determination is available in the docket where indicated underADDRESSES. This proposed rule involves the establishment, disestablishment, and changing of safety zones, and thus, paragraph 34(g) of figure 2-1 in Commandant Instruction M16475.lD applies. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

This proposal addresses the following local rules: PCAPCD Rule 245, “Surface Coating of Metal Parts and Products” and VCAPCD Rule 74.12, “Surface Coating of Metal Parts and Products,” In the Rules and Regulations section of thisFederal Register,we are approving these local rules in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.

In the “Rules and Regulations” Section of today'sFederal Register, we are publishing a direct final Notice of Partial Deletion for the remaining portions of Operable Unit 9 (OU9), the Residential Populated Areas, of the California Gulch Superfund Site (Site) without prior Notice of Intent for Partial Deletion because EPA views this as a noncontroversial revision and anticipates no adverse comment. We have explained our reasons for this partial deletion in the preamble to the direct final Notice of Partial Deletion, and those reasons are incorporated herein. If we receive no adverse comment(s) on this partial deletion action, we will not take further action on this Notice of Intent for Partial Deletion. If we receive adverse comment(s), we will withdraw the direct final Notice of Partial Deletion and it will not take effect. We will, as appropriate, address all public comments in a subsequent final Notice of Partial Deletion based on this Notice of Intent for Partial Deletion. We will not institute a second comment period on this Notice of Intent for Partial Deletion. Any parties interested in commenting must do so at this time.

For additional information, see the direct final Notice of Partial Deletion which is located in the Rules section of thisFederal Register.

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 spot-tailed earless lizard from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on:

(1) The biology, range, and population trends of the species and of both its subspecies, 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 Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531et seq.), which 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.(3) Information related to the specific threats to the spot-tailed earless lizard and both subspecies of the spot-tailed earless lizard.

If, after the status review,we determine that listing the spot-tailed earless lizard or either of its subspecies is warranted, we will propose critical habitat (see definition 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 spot-tailed earless lizard, 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 scientificjournal 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://www.regulations.gov,or you may make an appointment during normal business hours at the U.S. Fish and Wildlife Service, Austin Ecological Services 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 January 21, 2010, we received a petition dated January 13, 2010, from Wild Earth Guardians, requesting that the spot-tailed earless lizard be listed as threatened or 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 petitioner, as required by 50 CFR 424.14(a). In a July 19, 2010, letter to the petitioner, 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. This finding addresses the petition.

There have been no previous Federal actions related to this species.

The spot-tailed earless lizard (Holbrookia lacerata) is a small lizard that averages 11.5 to 15.2 centimeters (cm) (4.5 to 6.0 inches (in)) from the nose to the end of the tail, and has been described as the most conspicuously spotted of all earless lizards (Conant and Collins 1991, p. 101).

The spot-tailed earless lizard is divided into two distinct subspecies, based on morphological (physical) differences and geographic separation (Conant and Collins 1991, p. 101; Dixon 2000, p. 27). The northern spot-tailed earless lizard subspecies,Holbrookia laceratalacerata,has two rows of dark blotches down each side of its back. The dark blotches are often so close together that they appear to be two dark rows down each side of the lizard's back. This subspecies has on average 13 femoral pores, which are openings containing a wax-like material found on the underside of the thighs and are used to leave a scent trail when they rub their legs on the ground. The southern spot-tailed earless lizard,Holbrookia laceratasubcaudalis,has 2 distinct rows of dark blotches down each side of its back and an average of 16 femoral pores under each hind leg.

We accept the characterization ofHolbrookia laceratalacerate andHolbrookia laceratasubcaudalisas subspecies of the petitioned species,H. lacerata,because they were properly described in peer-reviewed literature and are recognized as subspecies by knowledgeable herpetologists:H. l. laceratasince 1880, andH. l. subcaudatasince 1956 (ITIS 2009, p. 1).

In addition to the two subspecies having distinct morphological characteristics (Dixon 2000, p. 27), they are separated geographically along the Balcones Escarpment, which is a geologic fault zone in central Texas (Axtell 1968, p. 56.1). It seems that the Balcones Escarpment serves as a barrier to genetic exchange (Axtell 1968, p. 56.1; Hammersonet al.2007, p. 4). The northern subspecies historically occurred throughout the Edwards Plateau (a geographic region in west-central Texas), while the southern subspecies historically occurred through south Texas into parts of Mexico's States of Coahuila, Nuevo Leon, and Tamaulipas (Axtell 1968, p. 56.1; Conant and Collins 1991, p. 101; Dixon 2000, p. 73; Texas Parks and Wildlife Department (TPWD) 2005a, p. 1; Hammersonet al.2007, p. 2). In central and southern Texas, the spot-tailed earless lizard occurs across 75 counties (TPWD 2005a, p. 1). The TPWD's Comprehensive Wildlife Conservation Strategy (2005b, pp. 1093-1094) suggests that the spot-tailed earless lizard is declining in Texas, especially along the periphery of its range, but does not refer to any specific studies or surveys. Also, the petitioner did not provide any information, and we could not find any readily available in our files, regarding the current species' status or distribution in Mexico. Because population and distribution information is limited throughout the species' range, research is needed to verify the suggested decline in Texas and to determine the species' current distribution.

The spot-tailed earless lizard is found in a variety of habitats, but typically they use habitat with sparse vegetation or bare ground (Axtell 1968, p. 56.1). Spot-tailed earless lizards inhabit flat and open prairies or meadows, sand dunes, chaparral-shrubland, mixed woodland areas, and graded roads in Texas (Axtell 1968, p. 56.1; TPWD 2005b, p. 1093), as well as the desert habitats of northern Mexico (Axtell 1968, p. 56.1). The lizard tends to burrow in soil, fallen logs, and other ground debris, and avoid obstructions, such as waterways, buildings, and pavement (Axtell 1968, p. 56.1).

The TPWD (2005a, p. 1093) described differences in habitat associations between the two spot-tailed lizard subspecies. The northern spot-tailed earless lizard apparently prefers caliche soils (hardened deposit of calcium carbonate found in arid regions that cements together other materials,including gravel, sand, clay, and silt) of the Edwards Plateau in moderately open prairie-brushland, oak-juniper woodlands, and mesquite associations. The southern spot-tailed earless lizard is most often found in flatter areas in association with dark clay, clay-loam soils, and in mesquite-prickly-pear associations.

In conclusion, the spot-tailed earless lizard's present population status is largely unknown. The TPWD suggests that the species may be declining along the periphery of its range, but more surveys are needed to determine the species' current distribution. To ensure that the status review is comprehensive and up to date, we are soliciting information on the species' status and distribution throughout its range.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations 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 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 threats to the spot-tailed earless lizard, as presented in the petition and documented in 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 petitioner asserts that the conversion of native habitat to cropland and nonnative grasses for livestock, as well as habitat fragmentation by road construction and development, are threats to the spot-tailed earless lizard.

In support of the conversion of native habitat to cropland and nonnative grasses for livestock, the petitioner cited NatureServe (2009, pp. 1-2) and TPWD's Conservation Wildlife Strategy (2005a, p. 1094), which mentioned that the eastern portion of the species' historical range is now used for agricultural production.

Also, in support of its assertion that the species is threatened by habitat fragmentation from road construction and development, the petitioner presented data adapted from the U.S. Census Bureau showing that the total human population of the counties included within the spot-tailed earless lizard's historical range increased by 33 percent between 1990 and 2008, to over 6.2 million people (U.S. Census Bureau 2009). Additionally, the petitioner stated that 5 counties in Texas (Williamson, Hays, Comal, Kendall, and Guadalupe) within the lizard's historical range are among the 100 fastest growing counties in the United States (U.S. Census Bureau 2009, pp. 1-5).

In reference to the petitioner's claims concerning the conversion of native habitat to cropland and nonnative grasses for livestock, the information presented appears to be reliable.The petitioner cited TPWD's Comprehensive Wildlife Conservation Strategy, which noted that the spread of nonnative grasses is a problem in Texas (TPWD 2005b, p. 88). However, the petitioner provided no information indicating how the spread of nonnative grasses may be acting on the species. Also, the petitioner provided no information on the conversion of native habitat to cropland, the extent to which this may be occurring within the range of the species, or how this might impact the spot-tailed earless lizard. Therefore, the petitioner has not provided substantial information indicating that conversion of native habitat to cropland or nonnative grasses for livestock may be a threat to the spot-tailed earless lizard, and our files do not contain any information to support the petitioner's claims.

In reference to the petitioner's claim that habitat fragmentation by road construction and development is a threat to the species, the information appears reliable. The petitioner referenced human population growth in conjunction with habitat fragmentation by road construction, but provided no information indicating how this potential threat may be acting on the species. Also, we have no information available in our files indicating that the spot-tailed earless lizard's movements are inhibited by roads or that roads are acting as barriers to the lizard. Based on the above, the petitioner has not provided substantial information indicating that habitat fragmentation by road construction and development may be a threat to the spot-tailed earless lizard.

We believe that crossing highways may result in mortality to individual lizards; however, there is no evidence indicating that road-related mortalities are having an impact on the species'status. We believe the impact of road-related mortality is minimal because of the species' small home range size. In a similar species, Jones and Droge (1980, pp. 127-132) found that the mean home range of the lesser earless lizard (Holbrookia maculata) was less than 1 acre (0.4 hectare). Therefore, it's likely that the spot-tailed earless lizard would have to be living right next to a road for the possibility of a road-related mortality to occur. We have no information readily available in our files and the petitioner provided no information indicating that road-related mortalities may have an impact on the species' overall status. Based on the above, the petitioner has not provided substantial information indicating that road-related mortalities may be a threat to the spot-tailed earless lizard.

In summary, we find that the petition, along with information readily available in our files, has not presentedsubstantial information that the spot-tailed earless lizard may warrant listing due to the present or threatened destruction, modification, or curtailment of its habitat or range.

The petition states that the extent of impacts due to this factor is currently unknown and suggests that the Service should investigate whether collection of the spot-tailed earless lizard for scientific purposes or for the pet trade is a threat to this species.

We currently have no information readily available in our files that suggests that overutilization for commercial, recreational, scientific, or educational purposes may be a threat to this species.Therefore, we find that the petition, along with information available in our files, has not presented substantial information that the spot-tailed earless lizard may warrant listing due to this factor.

The petitioner asserts that the redimported fire ant (Solenopsisinvicta) (fire ant), a nonnative species, is a threat to the spot-tailed earless lizard. In support of this threat, the petitioner cited Hammersonet al.(2007, p. 6), which stated that the existence of fire ants in the spot-tailed earless lizard's habitat is a threat to the species. Also, the petitioner provided a map showing that the current range of the fire ant covers the entire current spot-tailed earless lizard rangein Texas (USDA 2006, p. 1).The petitioner states that fire ants prey on reptiles and their eggs, and are reportedly contributing to the decline of native species (Reaganet al.2000, pp. 475-478; Allenet al.2004, pp. 88-103). Fire ants also prey on hatchlings and adult animals (Wojciket al.2001, pp. 16-23).

Additionally, the petitioner noted that habitat disturbances can lead to invasions by fire ants across specific locations (Zettleret al.2004, p. 517). Fire ant colonies multiply in disturbed and early-succession areas, such as woody debris in clearcut areas (Toddet al.2008, p. 540). Thus, clear cutting in spot-tailed earless lizard woodland habitat could trigger fire ant invasions. Further, the petitioner provided support by citing Toddet al.(2008, p. 540), which noted that spot-tailed earless lizards burrow into fallen logs and other ground debris, and use these substrates as escape habitat or cover in harsh environmental conditions, but these habitats can function as a trap for the lizards in areas where fire ants have invaded.

In reference to the petitioner's claims that the fire ant is a threat to the spot-tailed earless lizard, the petitioner provided no information and we have none readily available in our files concerning the spread of the fire ant over the spot-tailed earless lizard's range in Mexico. However, information readily available in our files supports the petitioner's claim that the current range of the fire ant covers the entire current spot-tailed earless lizard range in Texas.

Information in our files also indicates that fire ant predation may be a factor that is negatively impacting the overall status of the spot-tailed earless lizard. The fire ant is an aggressive and indiscriminate predator that can have devastating and longlasting impacts on native populations and communities (Vinson and Sorenson 1986, p. 17; Porter and Savignano 1990, p. 2095). The petitioner provided references that support the claim that fire ants predate on eggs, hatchlings, and adults of a variety of species, including lizards (Wojciket al.2001, pp. 19-20). Although there is no direct information on the decline of the spot-tailed earless lizard due to fire ant predation, the information presented about other reptiles, in addition to the aggressive and indiscriminate predatory nature of the fire ant, leads us to believe there may be negative impacts to the spot-tailed earless lizard. It is likely that fire ants are preying on adults, hatchlings, and eggs of spot-tailed earless lizards. Therefore, information provided by the petitioner and readily available in our files constitutes substantial information indicating that fire ants may be a threat to the spot-tailed earless lizard.

Regarding the petitioner's claim that habitat disturbances can lead to invasions by fire ants across specific locations, the information provided appears reliable. A study by Toddet al.(2008, pp. 542-545) found that fire ant abundance increases with disturbances to native species habitat. Porteret al.(1988, p. 916) reported that the invasion of fire ants is known to be aided by any disturbance that clears a site of heavy vegetation and disrupts the native ant community. Therefore, it is likely that disturbances such as a clear cutting can trigger fire ant invasions.

In summary, there is substantial information on the adverse effects of fire ants on native fauna in general, including reptiles, and substantial information that fire ants may pose a threat to the spot-tailed earless lizard through direct predation on adults, hatchlings, and eggs. In addition, there is substantial information that fire ants occur across a large part of the spot-tailed earless lizard's range. Therefore, we find that the information provided in the petition, along with information readily available in our files, has presented substantial information indicating that the species may warrant listing due to predation, primarily by the fire ant.

The petitioner asserts that the spot-tailed earless lizard has no regulatory protection. Yet, the petitioner also cites NatureServe (2009, p. 2) and states that one to two spot-tailed earless lizard populations are appropriately protected and managed. Other citations provided by the petitioner include the IUCN's Red List Ranks (Hammerson et al. 2007) and TPWD's Wildlife Conservation Strategy (TPWD 2005b).

In reference to the petitioner's claim that the lack of regulatory protection is a threat to the spot-tailed earless lizard, the petitioner provided no information indicating how this potential impact may be acting on the species. We have identified the fire ant as a potential threat, but we are not aware of any regulatory mechanism that would address this potential threat. Therefore, we find that neither the petition nor information readily available in our files presented substantial information that the species may warrant listing due to the inadequacy of existing regulator mechanisms.

The petitioner asserts that pollutants, obstructions to movement, and climate change are threats to the spot-tailed earless lizard. In support of pollutants being a threat, the petitioner stated that the most severe threat to the spot-tailed earless lizard's survival is the use of agricultural pesticides and herbicides (NatureServe 2009, p. 1). Also, thepetitioner pointed out that environmental pollutants are likely major threats to reptiles around the globe and gave examples of the adverse effects of carbaryl (a chemical in the carbonate family used chiefly as an insecticide) on locomotion, energy use, and overall fitness of terrestrial lizards (DuRant 2006, pp. 39-41; DuRantet al.2007a, pp. 446-447; DuRantet al.2007b, pp. 20-23) and atrazine's (an organic compound used as an herbicide) possible effect as an endocrine disruptor in reptiles (Deb 2005, p. 401).

In support of obstructions to movement being a threat, the petitioner asserted that spot-tailed earless lizards that try to cross highways usually do not survive (NatureServe 2009, p. 1). In addition, the petitioner alleges that buildings, pavement, human structures, rivers, ponds, and lakes are barriers to the lizard's movement, but no other evidence or references are provided to indicate whether the spot-tailed earless lizard is exposed to the barriers or whether the species responds to these barriers in a way that causes actual impacts to the species.

In regards to climate change being a threat to the spot-tailed earless lizard, the petitioner cited studies on the potential adverse effects of climate change. For example, the petitioner claims that climate change is expected to cause more extreme and frequent weather events that include droughts, heavy rainfall, and heat waves (Karlet al.2009, p. 126). The petitioner further states that climate-driven changes are likely to combine with other human-induced stresses to increase the vulnerability of natural ecosystems to pests, invasive species, and loss of native species (Karlet al.2009, p. 126). Fischlinet al.(2007, pp. 224-226) proposed that the productivity, structure, and carbon balance of grassland ecosystems are extremely sensitive to climatic shifts. Root and Schneider (2002, pp. 29-30) addressed how climate is likely to affect animals with habitat associations in particular vegetation types. The ranges of animals relying on plant communities could become compressed, and in some instances, both the plants and the animals could become extinct (Root and Schneider 2002, pp. 29-30).

In reference to the petitioner's claim that pollutants may be a threat to the spot-tailed earless lizard, the information appears reliable. References cited in the petition on the effects of carbonate are studies on the western fence lizard (Sceloporusoccidentalis), which is in the same family as the spot-tailed earless lizard (DuRant 2006, pp. 39-41; DuRantet al.2007a, pp. 446-447; DuRantet al.2007b, pp. 20-23). Because the lizards are in the same family, it is plausible to assume that if the spot-tailed earless lizard is exposed to carbonate pollutants, similar results to exposure to the pesticides would likely occur. Also, the reference to atrazine is only a very general reference to reptiles (Deb 2005, p. 401), but it does suggest that the pesticide could act as an endocrine disruptor in the spot-tailed earless lizard. However, the petition does not provide information on the current or historical use of these pesticides or any other agricultural pesticides within the spot-tailed earless lizard's range, and we have no information readily available in our files indicating the extent of use of these pollutants in the species' range, or if these pollutants may be having an impact on the spot-tailed earless lizard. Consequently, the petitioner has not provided substantial information indicating that pollutants may be a threat to the spot-tailed earless lizard.

In reference to the petitioner's claim that obstruction to movements is a threat to the spot-tailed earless lizard, the petitioner did not provide reliable data to support their claim. We previously addressed the petitioner's claims regarding roads as a threat under Factor A above. Concerning other barriers to movement, the petitioner provided no information indicating how these potential impacts may be acting on the species. Therefore, the petitioner has not provided substantial information indicating that obstruction to movement may be a threat to the species.

In reference to the petitioner's claim that climate change is a threat to the spot-tailed earless lizard, the information appears to be reliable. However, the petitioner provided references to studies that discussed climate change in general terms, that discussed the potential impacts of climate change in areas outside of the spot-tailed earless lizard's range, and that discussed the potential impacts of climate change on unrelated species. No information was provided by the petitioner indicating whether the spot-tailed earless lizard might be sensitive to environmental changes resulting from climate change, and no information was provided regarding the extent of potential exposure of the spot-tailed earless lizard to climate change impacts. The petitioner cited Root and Schneider (2002, pp. 29-30) who addressed how climate is likely to affect animals with habitat associations in particular vegetation types. However, the spot-tailed earless lizard is found in a variety of habitats across a broad geographic range (Axtell 1968, p. 56.1; Conant and Collins 1991, p. 101; Dixon 2000, p. 73; TPWD 2005a, p. 1; Hammersonet al.2007, p. 2). Also, it is hypothesized that plant and animal communities are generally expected to shift toward the poles or increase in altitude with increasing global temperatures and drought conditions (Parmesanet al.2000, p. 443; Cameron and Scheel 2001, p. 676; Root and Schneider 2002, pp. 22-23; Karlet al.2009, pp. 72, 132). We believe that increasing global temperatures and drought conditions may have little impact on spot-tailed earless lizards, because the species is physiologically and behaviorally well adapted to warm, arid landscapes. Therefore, based on the above information, the petitioner has not provided substantial information indicating that the environmental changes associated with climate change may be a threat to the spot-tailed earless lizard.

In summary, we find that the petition, along with information readily available in our files, did not present substantial information that the spot-tailed earless lizard may warrant listing due to other natural or manmade factors.

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 both the northern and southern subspecies of the spot-tailed earless lizard throughout their entire ranges may be warranted. This finding is based on information provided under factor C, the potential threat from fire ant predation.

Because we have found that the petition presents substantial information indicating that listing the spot-tailed earless lizard may be warranted, we are initiating a status review to determine whether listing the spot-tailed earless lizard 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 isconducted 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 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.govand upon request from the Austin Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACT).

The primary authors of this notice are staff members of the Austin Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACT).

The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.).