Forest Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Pipeline and Hazardous Materials Safety Administration
Presidential Documents
Community Living Administration
Food and Drug Administration
Health Resources and Services Administration
Indian Health Service
Coast Guard
U.S. Customs and Border Protection
Indian Health Service
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Surface Mining Reclamation and Enforcement Office
Drug Enforcement Administration
Employment and Training Administration
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
Pipeline and Hazardous Materials Safety Administration
Comptroller of the Currency
Foreign Assets Control Office
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Federal Retirement Thrift Investment Board.
Direct final rule; correction.
The Federal Retirement Thrift Investment Board (Agency) published a direct final rule in the February 27, 2012,
Effective October 2, 2012.
Erin F. Graham, (202)–942–1605.
This document contains corrections to FRTIB regulations stemming from the direct final rule published in the February 27, 2012,
Courts, Freedom of information, Government employees.
Accordingly, 5 CFR part 1631 is amended by making the following correcting amendment:
5 U.S.C. 552.
Nuclear Regulatory Commission.
Final regulatory basis; availability of rulemaking documents.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is publishing the final regulatory basis for rulemaking to streamline non-power reactor license renewal. This final regulatory basis incorporates input from the public, licensees, certificate holders, and other stakeholders provided during the public comment period that ended July 31, 2012. This regulatory basis provides the technical basis to support proceeding with rulemaking to streamline and enhance the Research and Test Reactor (RTR) License Renewal Process. This contemplated rulemaking also recommends conforming changes to address technical issues in existing non-power reactor regulations. The NRC has developed a final technical basis for this proposed rulemaking that describes the agency's overall objectives, conceptual approaches, potential solutions, integration with agency strategic goals, and related technical and regulatory clarity issues.
Please refer to Docket ID NRC–2011–0087 when contacting the NRC about the availability of information regarding this document. You may access information related to this document by any of the following methods:
•
•
•
The Commission provided direction presented in the Staff Requirements Memorandum, SECY–08–0161 (ADAMS Accession No. ML082550140) that directed the staff to develop and submit a long-term plan for an enhanced RTR license renewal process for Commission review. “The plan should include, but not be limited to, developing a basis for redefining the scope of the process, as well as a recommendation regarding the need for rulemaking and guidance development. The staff should submit to the Commission a resource request, including staffing and contract funding needs, to formalize the review process changes and establish a stable and predictable regulatory regime for RTRs. This long term plan should consider elements of the generic analysis approach, generic siting analysis, and the extended license term * * *.”
The NRC published a draft regulatory basis on June 29, 2012 (77 FR 38742), for comment from the public, licensees, certificate holders, and other stakeholders. The public comment period that ended July 31, 2012. The NRC received two comment letters: one from the University of Florida and one from the National Institute of Standards and Technology, in electronic form via
Duane Hardesty, Project Manager, Research and Test Reactors Licensing Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–3724; email:
The NRC is issuing this notice for the availability of the final regulatory basis to streamline non-power reactor license renewal.
For the Nuclear Regulatory Commission,
Employment and Training Administration, Labor.
Final rule; delay of effective date.
The Department of Labor (Department) is delaying the effective date of the Wage Methodology for the Temporary Non-agricultural Employment H–2B Program final rule, in response to recently enacted legislation that prohibits any funds from being used to implement the Wage Rule for the first 6 months of fiscal year (FY) 2013. The Wage Rule revised the methodology by which the Department calculates the prevailing wages to be paid to H–2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H–2B status.
The effective date for the final rule amending 20 CFR part 655, published at 76 3452, January 19, 2011, effective January 1, 2012, amended to September 30, 2011, at 76 FR 45667, August 1, 2011, delayed until November 30, 2011, at 76 FR 59896 (September 28, 2011), delayed until January 1, 2012, at 76 FR 73508 (November 29, 2011), and delayed until October 1, 2012 at 76 FR 82115 (December 30, 2011), is further delayed until March 27, 2013.
William L. Carlson, Ph.D., Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue NW., Room C–4312, Washington, DC 20210; Telephone (202) 693–3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1–877–889–5627 (TTY/TDD).
The Department published the Wage Methodology for the Temporary Non-agricultural Employment H–2B Program final rule (the Wage Rule) on January 19, 2011, 76 FR 3452. The Wage Rule revised the methodology by which the Department calculates the prevailing wages to be paid to H–2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification for use in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H–2B status. The Department originally set the effective date of the Wage Rule for January 1, 2012. However, due to a court ruling that invalidated the January 1, 2012 effective date of the Wage Rule,
Both the Wage Rule and the Effective Date Rule were challenged in two separate lawsuits
Thereafter, the Department postponed the effective date of the Wage Rule again, in light of the enactment on November 18, 2011, of the Consolidated and Further Continuing Appropriations Act, 2012, which provided that “[n]one of the funds made available by this or any other Act for fiscal year 2012 may be used to implement, administer, or enforce, prior to January 1, 2012 the [Wage Rule].” Public Law 112–55, Div. B, Title V, § 546 (Nov. 18, 2011) (the November Appropriations Act). In delaying the Wage Rule's effective date, the Department stated that although the November Appropriations Act “prevent[ed] the expenditure of funds to implement, administer, or enforce the Wage Rule before January 1, 2012, it did not prohibit the Wage Rule from going into effect, which was scheduled to occur on November 30, 2011. When the Wage Rule goes into effect, it will supersede and make null the prevailing wage provisions at 20 CFR 655.10(b) of the Department's existing H–2B regulations, which were promulgated under Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H–2B Workers), and Other Technical Changes; final rule, 73 FR 78020, Dec. 19, 2008 (the H–2B
On December 23, 2011, President Obama signed into law the Consolidated Appropriations Act, 2012 (the December Appropriations Act), which provided that “[n]one of the amounts made available under this Act may be used to implement the [Wage Rule].” Similar to the November Appropriations Act, the December Appropriations Act prevented the expenditure of funds to implement the Wage Rule for the remainder of FY 2012. In light of the December Appropriations Act, the Department issued a Final Rule, 76 FR 82115, on December 30, 2011, which further delayed the effective date of the Wage Rule until October 1, 2012.
In anticipation of the enactment of H.J. Res. 117, which continues the Department's appropriations from the December Appropriations Act until March 27, 2013 “under the authority and conditions provided” in the December Appropriations Act, H.J. Res. 117, Sec. 101(a), the Department must again delay the effective date of the Wage Rule to prevent the replacement of the H–2B 2008 Rule with a new rule that the Department lacks appropriated funds to implement. As noted with the previous delays in the effective dates, if the Wage Rule were to become effective on October 1, 2012 and H.J. Res. 117 becomes law, the Department would be unable to issue prevailing wage determinations under the H–2B 2008 rule. The Department of Homeland Security (DHS), under its regulations at 8 CFR 214.2(h)(6)(iii) and (iv) requires an employer seeking H–2B workers to obtain a labor certification from the Department. Because the Department would be legally precluded from issuing prevailing wage determinations, temporary labor certifications for employers seeking H–2B workers could not be issued because the Department could not comply with its own regulations or those of DHS. As a result, the H–2B program would be held in abeyance for the first 6 months of FY 2013; therefore, the Department is extending the effective date of the Wage Rule until March 27, 2013.
The Department considers this situation an emergency warranting the publication of a final rule under the good cause exception of the Administrative Procedure Act. See 5 U.S.C. 553(b)(B) and 553(d)(3). In order to avoid an operational suspension during the first 6 months of FY 2013, the Department finds good cause to adopt this rule, effective immediately, and without prior notice and comment. See 5 U.S.C. 553(b)(B) and 553(d)(3). As such, a delay in promulgating this rule past the date of publication would be impracticable and unnecessary and would disrupt the program, leaving program users without access to the H–2B program.
Bureau of Indian Affairs, Interior.
Final rule.
The Bureau of Indian Affairs (BIA) is confirming the interim final rule published and effective on May 24, 2012, addressing heating, cooling, and lighting standards for Bureau-funded dormitory facilities. This rule was developed through negotiated rulemaking, as required by the No Child Left Behind Act of 2001. The May 24, 2012, publication stated that the BIA would review comments on the interim final rule and either confirm the rule or initiate a proposed rulemaking. BIA did not receive any adverse comments, and therefore confirms the rule without change.
Effective October 2, 2012.
Regina Gilbert, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary—Indian Affairs, 1001 Indian School Road, NW., Suite 312, Albuquerque, NM 87104; telephone (505) 563–3805; fax (505) 563–3811.
The No Child Left Behind School Facilities and Construction Negotiated Rulemaking Committee developed the interim final rule to complete the work responding to the mandates of the No Child Left Behind Act at 25 U.S.C. 2002. See the May 24, 2012, interim final rule (77 FR 30888) for additional background on the Committee. The Committee determined, by consensus, that the codes and standards identified in the “School Facilities Design Handbook” (handbook) dated March 30, 2007, respecting heating, ventilation, air conditioning, and lighting are appropriate for home-living (dormitory) situations at Bureau-funded Indian education facilities. On May 24, 2012, BIA published the interim final rule (77 FR 30888), under Docket No. BIA–2012–0001, to make the codes and standards identified in the handbook respecting heating, ventilation, air conditioning, and lighting mandatory for home-living (dormitory) situations at Bureau-funded Indian education facilities; require the Bureau to give the public notice and an opportunity to comment on any proposal to change which standard building codes are incorporated in the handbook; and make a technical change to remove reference to subpart H, which is no longer in existence, and replace it with a reference to subpart G.
We stated in the interim final rule that we would address comments received and, by a future publication in the
Educational facilities, Incorporation by reference, Indians—education, school construction.
Accordingly, the interim rule published May 24, 2012, at 77 FR 30888, is adopted as final without change.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Menominee River in Marinette Wisconsin. This zone is intended to restrict vessels from a portion of Menominee River during the launching of the Research vessel SIKULIAQ, on October 13th, 2012. This temporary safety zone is necessary to protect the surrounding public and vessels from the hazards associated with the launching of this 261 foot, research vessel.
This rule will be effective from 9:00 a.m. to 12:00 p.m. on October 13, 2012.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2012–0896 and are available online by going to
If you have questions on this temporary rule, contact or email MST1 Joseph McCollum, U.S. Coast Guard Sector Lake Michigan, at 414–747–7148 or
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with the launching of a 261 ft Research vessel.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Between 9:00 a.m. until 12:00 p.m. on October 13, 2012 the 261 foot, research vessel SIKULIAQ, will be launched from shore to the waters of Menominee River. This event will take place in Marinette, WI. The Captain of the Port, Sector Lake Michigan, has determined that this launching will pose a significant risk to public safety and property. Such hazards include the creation of a large wake as the vessel enters the water, and the collision of the launched research vessel with other vessels in the water.
With the aforementioned hazards in mind, the Captain of the Port, Sector Lake Michigan, has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the launch. This zone will be effective and enforced from 9:00 a.m. to 12:00 p.m. on October 13, 2012. The safety zone will encompass all waters of the Menominee River in the vicinity of Marinette Marine Corporation, between the Bridge Street Bridge located in position 45°06′12″ N, 087°37′34″ W and a line crossing the river perpendicularly passing through position 45°05′57″ N, 087°36′43″ W, in the vicinity of the Ansul Company (NAD 83).
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this 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 Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for three hours. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Menominee River, Marinette, WI, on October 13, 2012.
This safety zone will not have a significant economic impact on a substantial number of small entities for
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 rule. 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 the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a 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 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “
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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will 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 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This 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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Sector Lake Michigan or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port, Sector Lake Michigan is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port, Sector Lake Michigan to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Sector Lake Michigan or his on-scene representative to obtain permission to do so. The Captain of the Port, Sector Lake Michigan or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port, Sector Lake Michigan, or his on-scene representative.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel on all waters of the Chicago Sanitary and Ship Canal from Mile Marker 296.1 to Mile Marker 296.7 at various times from October 8, 2012 through October 12, 2012. This action is necessary to protect the waterways, waterway users, and vessels from hazards associated with the Army Corp of Engineers' barge safety testing operations.
During any of the below listed enforcement periods, entry into, transiting, mooring, laying-up or anchoring within the enforced area of this safety zone by any person or vessel is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.
The regulations in 33 CFR 165.930 will be enforced from 7 a.m. to 11 a.m. and from 1 p.m. to 5 p.m. on October 8 through 12, 2012.
If you have questions on this notice, call or email MST1 Joseph McCollum, Prevention Department, Coast Guard Sector Lake Michigan, telephone 414–747–7148, email address
The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone between Mile Marker 296.1 to Mile Marker 296.7 on all waters of the Chicago Sanitary and Ship Canal. Enforcement will occur from 7 a.m. until 11 a.m. and 1 p.m. until 5 p.m. on: October 8 through 12, 2012.
This enforcement action is necessary because the Captain of the Port, Sector Lake Michigan has determined that the Army Corp of Engineers' barge effects testing, involving the demonstration barrier, barriers IIA and IIB, pose risks to life and property. The combination of vessel traffic and the testing operations in the water makes the controlling of vessels through the impacted portion of the Chicago Sanitary and Ship Canal necessary to prevent injury and property loss.
In accordance with the general regulations in § 165.23 of this part, entry into, transiting, mooring, laying up or anchoring within the enforced area of this safety zone by any person or vessel is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.
This notice is issued under authority of 33 CFR 165.930 and 5 U.S.C. 552(a). In addition to this notice in the
Additionally, the Captain of the Port, Sector Lake Michigan, may notify representatives from the maritime industry through telephonic and email notifications.
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of Patchogue Bay, in Patchogue, NY for the DeStefano family wedding fireworks display. This action is necessary to provide for the safety of life on navigable waters during the event. Entering into, transiting through, remaining, anchoring or mooring within this regulated area is prohibited unless authorized by the Captain of the Port (COTP) Sector Long Island Sound.
This rule is effective from November 1, 2012 until 10:30 p.m. on November 4, 2012.
This will be enforced from 8:30 p.m. on November 3, 2012 until 10:30 p.m. on November 4, 2012.
Documents mentioned in this preamble are part of docket [USCG–2012–0571]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer Joseph Graun, Prevention Department, Coast Guard Sector Long Island Sound, (203) 468–4544,
On August 3, 2012 we published a notice of proposed rulemaking (NPRM) entitled Safety Zone; DeStefano Wedding Fireworks Display, Patchogue Bay, Patchogue, NY in the
We received no comments and no requests for a public meeting.
The legal basis for this temporary rule is 33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6 and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1 which collectively authorize the Coast Guard to define regulatory safety zones.
This temporary regulation is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks display.
We received no comments and no changes have been made to the rule.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and 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 Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The Coast Guard determined that this rulemaking is not a significant regulatory action for the following reasons: The regulated area is of limited duration and covers only a small portion of the navigable waterways. Also, mariners may request permission from the COTP Sector Long Island Sound or the designated representative to transit the zone.
Advanced public notifications will be made to the local maritime community through the Local Notice to Mariners as well as Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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 received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 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 vessels intending to enter, transit, anchor or moor within the regulated area during the enforcement period. The temporary safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the regulated area is of limited size and of short duration and mariners may request permission from the COTP Sector Long Island Sound or the designated representative to transit the zone. Notifications will be made to the maritime community through the Local Notice to Mariners and Broadcast Notice to Mariners well in advance of the event.
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 rule. 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 the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a 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 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will 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 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This 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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(1)
(i) Designated Representative. A “designated representative” is any Coast Guard commissioned, warrant or petty officer of the U.S. Coast Guard who has been designated by the COTP, Sector Long Island Sound, to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF–FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.
(ii) Official Patrol Vessels. Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP Sector Long Island Sound.
(iii) Spectators. All persons and vessels not registered with the event sponsor as participants or official patrol vessels.
(2) Vessel operators desiring to enter or operate within the regulated area should contact the COTP Sector Long Island Sound at 203–468–4401 (Sector LIS command center) or the designated representative via VHF channel 16 to obtain permission to do so.
(3) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated area during the effective dates and times, or dates and times as modified through the Local Notice to Mariners, unless authorized by COTP Sector Long Island Sound or designated representative.
(4) Upon being hailed by a U.S. Coast Guard vessel or the designated representative, by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
(5) The COTP Sector Long Island Sound or designated representative may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property.
(6) Fireworks barges used in this location will have a sign on their port and starboard side labeled “FIREWORKS—STAY AWAY”. This sign will consist of 10 inch high by 1.5 inch wide red lettering on a white background.
Department of Education.
Final regulations.
The Department of Education (Department) issues these final regulations to adjust the Department's civil monetary penalties (CMPs) for inflation, as required by the Federal Civil Penalties Inflation Adjustment Act of 1990.
These regulations are effective October 2, 2012.
Peter Wathen-Dunn, Office of the General Counsel, U.S. Department of Education, 400 Maryland Avenue SW., Room 6E207, Washington, DC 20202–2241. Telephone: (202) 401–8300.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain this document in an accessible format (e.g., Braille, large print, audiotape, or compact disc) on request to the contact person listed under
The Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Adjustment Act) (28 U.S.C. 2461 note) provides for the regular evaluation of civil monetary penalties (CMPs) to ensure that they continue to maintain their deterrent value. The Inflation Adjustment Act requires that each agency issue regulations to adjust its CMPs beginning in 1996 and at least every four years thereafter. The Department published its most recent cost adjustment to each CMP in the
A CMP is defined in the statute as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.
The formula for the amount of a CMP inflation adjustment is prescribed by law and is not subject to the exercise of discretion by the Secretary of Education (Secretary). The adjustment reflects the percentage increase in the Consumer Price Index for all urban consumers (CPI–U) published by the Department of Labor from June of the calendar year in which the amount was last adjusted, to June of the calendar year preceding the adjustment. The Inflation Adjustment Act also requires agencies to round the inflation adjustment based on the amount of the penalty when last adjusted.
• For penalties greater than $100 but less than or equal to $1,000, the adjusted amount must be rounded to the nearest $100.
• For penalties greater than $1,000 but less than or equal to $10,000, the adjusted amount must be rounded to the nearest $1,000.
• For penalties greater than $10,000 but less than or equal to $100,000, the adjusted amount must be rounded to the nearest $5,000.
• For penalties greater than $100,000 but less than or equal to $200,000, the adjusted amount must be rounded to the nearest $10,000.
• For penalties greater than $200,000, the adjusted amount must be rounded to the nearest $25,000.
The following analysis calculates new civil monetary penalties for penalty statutes in the order in which they appear in 34 CFR 36.2. The Inflation Adjustment Act provides that adjustments to an agency's CMPs apply only to violations that occur after the effective date of the adjustments. These regulations become effective upon publication in the
The Inflation Adjustment Act was passed in 1990 and required agencies to first adjust their CMPs in 1996. Although the percentage change in the CPI–U from June 1994 through June 2011 is greater than 10%, the 1996 statute that amended the Inflation Adjustment Act also limited the first adjustment of a CMP to no more than 10 percent of the original penalty. Because the Department has never adjusted the CMP for 20 U.S.C. 1228c(c)(2)(E), the Department is limited to a maximum inflation adjustment of 10%, rounded to the nearest $100. The new penalty is calculated as follows: $1,000 × 10%, which increases the penalty, when rounded to the nearest $100, to $1,100.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a significant regulatory action as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities in a material way (also referred to as “economically significant” regulations);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
Based on the number and amount of penalties imposed under the CMPs amended in this final regulation, we have determined that this final regulatory action will have none of the economic impacts described under the Executive order. These final regulations are required by statute, are not at the Secretary's discretion, and, accordingly, do not have any of the policy impacts described under the Executive order. Because this final regulatory action is not a significant regulatory action, it is not subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final regulations as required by statute. The Secretary has no discretion to consider alternative approaches as delineated in the Executive order. Based on this analysis and the reasons stated in the preamble, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice- and-comment rulemaking when the agency, for good cause, finds that notice and public comment thereon are
Rulemaking is “unnecessary” when the agency is issuing a minor rule in which the public is not particularly interested. It applies in those situations in which “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.”
These regulations merely implement the statutory mandate to adjust CMPs for inflation. The regulations reflect administrative computations performed by the Department as prescribed by the statute and do not establish or affect substantive policy. The Secretary has no discretion in determining the new penalties.
The APA also generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, because these final regulations merely implement non-discretionary administrative computations, there is good cause to make them effective on the day they are published.
The Secretary certifies that these regulations will not have a significant economic impact on a substantial number of small entities. The formula for the amount of the inflation adjustments is prescribed by statute and is not subject to the Secretary's discretion. These CMPs are infrequently imposed by the Secretary, and the regulations do not involve any special considerations that might affect the imposition of CMPs on small entities.
These regulations do not contain any information collection requirements.
This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
Based on our own review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.
You may also access documents of the Department published in the
Claims, Fraud, Penalties.
For the reasons discussed in the preamble, the Secretary amends part 36 in title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1221e–3 and 3474; 28 U.S.C. 2461 note, unless otherwise noted.
National Park Service, Interior.
Final rule.
This rule designates the Hope Camp Trail as a route for bicycle use and allows for management of bicycle use within Saguaro National Park. Further, the rule meets the provision of the National Park Service general regulation pertaining to bicycles requiring promulgation of a special regulation to designate bicycle routes outside of developed areas.
This rule is effective November 1, 2012.
Darla Sidles, Superintendent, Saguaro National Park, (520) 733–5101.
In 1933, in order to protect lands with exceptional growth of various species of cacti, including the so-called giant or saguaro cactus, President Herbert Hoover established what would later be known as Saguaro National Monument through Proclamation No. 2032 (47 Stat. 2557). In 1961 President John F. Kennedy enlarged the national monument to include certain lands in what was then known as the Tucson Mountain Park through Proclamation No. 3439 (76 Stat. 1437). In 1976 Congress designated 71,400 acres of the national monument as wilderness (Pub. L. 94–567, 90 Stat. 2692, 2693). Then, in 1991, through the Saguaro National Monument Expansion Act of 1991, Congress authorized the addition of approximately 3,540 acres of lands to the Rincon Unit of the national monument (Pub. L. 102–61, 105 Stat. 303). Finally in 1994, through the Saguaro National Park Establishment Act of 1994, Congress again expanded the park area and renamed it Saguaro National Park (Park) (Pub. L. 103–364, 108 Stat. 3467, codified at 16 U.S.C. 410zz through 410zz–3).
The Park is an important national resource visited by approximately 700,000 people annually. It encompasses approximately 91,450 acres, 71,400 acres of which are designated as wilderness. The Park has two Districts—the Rincon Mountain District east of Tucson and the Tucson Mountain District west of Tucson. Both are within Pima County, Arizona, and are separated by the city of Tucson. The Park protects a superb example of the Sonoran Desert ecosystem, featuring exceptional stands of saguaro cacti. The saguaro is the tallest cactus in the United States, and is recognized worldwide as an icon of the American Southwest.
The Hope Camp Trail is a 2.8-mile-long hiking and equestrian trail that originates at the Loma Alta Trailhead and travels east through the southwestern portion of the Park's Rincon Mountain District to the Arizona State Trust Lands boundary beyond Hope Camp. The trail generally traverses relatively even terrain and rolling hills and is lined with a variety and abundance of desert trees and shrubs. The trail is not within eligible, proposed, recommended, or designated wilderness.
Prior to the National Park Service (NPS) acquisition in the mid 1990s, the land was part of a privately-owned ranch, and the trail route was a graded dirt road used to support ranching operations. The former owner also allowed the route to be used for recreational purposes, including hiking, equestrian, and bicycle use. Shortly after acquiring the land, the NPS closed the route to motor vehicles and bicycles. The trail is currently open to hiker and equestrian use only. Although closed to vehicular traffic, the route remains approximately 14 feet wide, allowing adequate room for two-way passage of diverse user groups.
The Park's General Management Plan/Environmental Impact Statement (GMP) was completed in 2008. The GMP may be viewed online at
The purposes of the GMP are as follows:
• Confirm the purpose, significance, and special mandates of the Park.
• Clearly define resource conditions and visitor uses and experiences to be achieved at the Park.
• Provide a framework for NPS managers to use when making decisions about how to:
○ Best protect Park resources;
○ Provide quality visitor uses and experiences; and
○ Manage visitor uses and what kinds of facilities, if any, to develop in/near the Park.
• Ensure that a foundation for decision making has been developed in consultation with interested stakeholders and adopted by NPS leadership after an adequate analysis of the benefits, impacts, and economic cost of alternative courses of action.
The GMP identifies six different management zones, which are specific descriptions of desired conditions for Park resources and visitor experiences in different areas of the Park. As identified in the GMP, the Hope Camp Trail lies within the Natural Zone. Under the GMP, activities within the Natural Zone would include hiking, horseback riding, running, bicycling, and viewing flora and fauna. The zone
In November 2005, the Park initiated the development of a Comprehensive Trails Management Plan/Environmental Assessment (Plan/EA) for the Park. Internal scoping occurred with Park staff, planning professionals from the NPS Intermountain Support Office, along with representatives from the U.S. Forest Service and the Sonoran Institute. External scoping included mailing and distribution of three separate newsletters, four public open house meetings, and a 60-day public comment period. As a result of this process, four alternatives for the Park's Rincon Mountain District (including a no action alternative) were identified for public comments. Two alternatives called for converting the Hope Camp Trail into a multi-use trail, to include the use of bicycles, and two alternatives kept the trail open to hikers and equestrians only. During the public comment period on the draft Plan/EA, the NPS considered 253 pieces of correspondence, containing a total of 638 comments on the draft Plan/EA alternatives.
The objectives of the Plan/EA were to:
• Prevent impairment and unacceptable impacts on natural and cultural resources.
• Provide reasonable access to the trails network and trailheads.
• Eliminate unnecessary and parallel/duplicate trails.
• Ensure that the resulting trails network is safe and maintainable.
• Provide for a clearly designated trail system.
• Provide for a variety of trail experiences.
The Plan/EA was completed in 2009. The selected alternative and the Finding of No Significant Impact (FONSI) signed by the NPS Intermountain Regional Director on July 31, 2009, calls for converting the Hope Camp Trail to a multi-use trail, including bicycling. The Plan/EA and FONSI may be viewed online at
A 2003 rulemaking authorized bicycle use on the 2.5-mile-long Cactus Forest Trail that bisects the paved, 8-mile-long Cactus Forest Loop Drive in the Rincon Mountain District of the Park. This rulemaking does not address the Cactus Forest Trail (CFT), which remains open to bicycle use, as well as hiker and equestrian use. The CFT has recently been used to introduce underserved youth to the Park and the NPS via bicycling and educational fieldtrips as part of the “Trips for Kids” program. Currently, this is the only trail in the Park open to bicycle use.
This rule designates as a bicycle route and opens to bicycle use the approximate 2.8-mile-long Hope Camp Trail, from the Loma Alta Trailhead east to the Arizona State Trust Lands boundary, approximately .2 miles beyond Hope Camp. Park staff, volunteer organizations, and local interest groups will monitor and mitigate the environmental impacts of bicycle use on the Hope Camp Trail to ensure that the trail is maintained in good condition and that any issues of concern that may arise are immediately brought to the attention of Park management.
On March 2, 2012, the NPS published a Notice of Proposed Rulemaking for the designation of the Hope Camp Trail as a bicycle route within Saguaro National Park (77 FR 12761). The proposed rule was available for a 60-day public comment period, from March 2, 2012 through May 1, 2012.
Comments were accepted through the mail, by hand delivery, and through the Federal eRulemaking Portal:
Some of the 142 comments received supporting the proposed include:
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(a) Bicycles were allowed on this dirt road before the property was acquired by the NPS;
(b) Bicycle access on Hope Camp trail is not controversial because the area is not recommended or designated as Wilderness;
(c) Bicycle access is consistent with the 2009 Comprehensive Trails Management Plan; and
(d) The Hope Camp trail provides a vital connection between Tucson and the Arizona Trail.
Having this connectivity would allow riders to use the City of Tucson as a starting or ending destination when riding the southern sections of the Arizona Trial that head south into the Rincon Valley. The Arizona Trail Association is working to find a route that will allow cyclists to also travel north from Tucson.
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The five comments received in opposition of the proposed rule, along with the NPS response, to each follow:
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One comment received was not relevant to the rule and therefore was not considered.
Paragraph (a)(2)(ii) was added to clarify that violating a closure, condition, or restriction established by the Superintendent under paragraph (a)(2) is prohibited.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.). This certification is based on information contained in the report titled, “Cost-Benefit and Regulatory Flexibility Analyses for Designating Bicycle Trails in Saguaro National Park” that is available for review at
This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:
a. Does not have an annual effect on the economy of $100 million or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
There are no businesses in the surrounding area economically dependent on bicycle use of this trail. The park does not have any bicycle rental concessioners, and current users are predominantly individuals engaged in recreational activities.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq.) is not required.
Under the criteria in section 2 of Executive Order 12630, this rule does not have significant takings implications. A taking implications
Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. A Federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. Specifically this rule:
(a) Meets the in the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required.
Affiliated Native American tribes were contacted by letters sent in December 2008 to solicit any interests or concerns with the proposed action. No responses were received by the Park.
This rule does not contain information collection requirements, and a submission under the PRA is not required.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because we reached a FONSI. The Plan/EA and FONSI that included an evaluation of bicycling on the Hope Camp Trail may be viewed online at
This rule is not a significant energy action under the definition in Executive Order 13211. A statement of Energy Effects is not required.
The primary authors of this regulation are Robert Love, Chief Ranger, Saguaro National Park, Darla Sidles, Superintendent, Saguaro National Park, John Calhoun and A.J. North, NPS Regulations Program, Washington, DC.
National Parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the NPS amends 36 CFR part 7 as set forth below:
16 U.S.C. 1, 3, 9a, 462(k); Sec. 7.96 also issued under 36 U.S.C. 501–511, D.C. Code 10–137 (2001) and D.C. Code 50–2201 (2001).
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(i) That portion of the Cactus Forest Trail inside the Cactus Forest Drive; and
(ii) The Hope Camp Trail, from the Loma Alta Trailhead east to the Arizona State Trust Lands boundary, located approximately .2 miles beyond Hope Camp.
(2) The Superintendent may open or close designated routes, or portions thereof, or impose conditions or restrictions for bicycle use after taking into consideration public health and safety, natural and cultural resource protection, and other management activities and objectives.
(i) The Superintendent will provide public notice of all such actions through one or more of the methods listed in § 1.7 of this chapter.
(ii) Violating a closure, condition, or restriction is prohibited.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Delaware on March 14, 2012. This SIP revision pertaining to Delaware's Prevention of Significant Deterioration (PSD) and nonattainment New Source Review (NSR) programs incorporates preconstruction permitting requirements for fine particulate matter (PM
This final rule is effective on November 1, 2012.
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2012–0381. All documents in the docket are listed in the
Gerallyn Duke, (215) 814–2084, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On August 1, 2012 (77 FR 45527), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. The NPR proposed approval of a SIP revision pertaining to Delaware's Prevention of Significant Deterioration (PSD) and nonattainment New Source Review (NSR) programs which incorporates preconstruction permitting requirements for fine particulate matter (PM
The purpose of this SIP revision is to incorporate the PSD and nonattainment preconstruction permitting requirements for PM
The SIP revision consists of amendments to sections 1.0, 2.0, and 3.0 of 7 DE Admin. Code 1125, “Requirements for Preconstruction Review.” The amendments establish the major source threshold, significant emission rate and offset ratios for PM
Other specific requirements of the regulations and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.
EPA is approving the March 14, 2012 SIP submission pertaining to Delaware's PSD and nonattainment NSR programs to incorporate the preconstruction permitting requirements for PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 3, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to NSR requirements for PM
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
In Title 49 of the Code of Federal Regulations, Parts 100 to 177, revised as of October 1, 2011, make the following corrections:
(c)
(c) * * *
(2) The following materials may be offered for transportation and transported as a regulated medical waste when packaged in a rigid non-bulk packaging conforming to the general packaging requirements of §§ 173.24 and 173.24a and packaging requirements specified in 29 CFR 1910.1030 and transported by a private or contract carrier in a vehicle used exclusively to transport regulated medical waste:
(i) Waste stock or culture of a Category B infectious substance;
(ii) Plant and animal waste regulated by the Animal and Plant Health Inspection Service (APHIS);
(iii) Waste pharmaceutical materials;
(iv) Laboratory and recyclable wastes;
(v) Infectious substances that have been treated to eliminate or neutralize pathogens;
(vi) Forensic materials being transported for final destruction;
(vii) Rejected or recalled health care products;
(viii) Documents intended for destruction in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) requirements; and
(ix) Medical or clinical equipment and laboratory products provided they are properly packaged and secured against exposure or contamination. Sharps containers must be securely closed to prevent leaks or punctures.
Office of the Comptroller of the Currency, Treasury (OCC); Board of Governors of the Federal Reserve System (Board); Federal Deposit Insurance Corporation (FDIC); Farm Credit Administration (FCA); and the Federal Housing Finance Agency (FHFA).
Reopening of comment period for proposed rule.
The OCC, Board, FDIC, FCA, and FHFA (collectively, the Agencies) are reopening the comment period for the proposed rule published in the
Comments must be received on or before November 26, 2012.
Interested parties are encouraged to submit written comments jointly to all of the Agencies. Commenters are encouraged to use the title “Margin and Capital Requirements for Covered Swap Entities” to facilitate the organization and distribution of comments among the Agencies. Commenters are also encouraged to identify the number of the specific question for comment to which they are responding.
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All public comments will be made available on the Board's Web site at
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You may review copies of all comments we receive at our office in McLean, Virginia or on our Web site at
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All comments received by the deadline will be posted for public inspection without change, including any personal information you provide, such as your name, address (mailing or email), and telephone numbers, on the FHFA Web site at
On May 11, 2011, the Agencies published in the
The original comment period to the Proposed Margin Rule closed on June 24, 2011.
In October 2011, the BCBS and IOSCO established a Working Group on Margin Requirements to develop harmonized international margin standards for non-cleared swaps. On July 6, 2012, BCBS and IOSCO published a Consultative Document entitled “Margin requirements for non-centrally-cleared derivatives” (Consultative Document) that outlines possible margin requirements for non-centrally-cleared derivatives.
BCBS and IOSCO are requesting comment on the initial proposals set forth in the Consultative Document by September 28, 2012. It is expected that, after reviewing and evaluating any comments received, the BCBS and IOSCO will issue final policy recommendations for margin requirements for non-centrally-cleared derivatives. As part of the international efforts to implement consistent global standards for non-centrally-cleared derivatives, the Agencies intend to consider the final policy recommendations set forth by the BCBS and IOSCO when adopting final U.S. rules for margin for non-cleared swaps.
Accordingly, the Agencies believe it is appropriate to reopen the comment period for the Proposed Margin Rule in order to give interested persons additional time to analyze the Proposed Margin Rule in light of the Consultative Document and an opportunity to comment on the Consultative Document and Proposed Margin Rule concurrently.
Therefore, the Agencies are reopening the comment period until November 26, 2012, for all aspects of the Proposed Margin Rule.
By order of the Board of Governors of the Federal Reserve System, acting through the Secretary under delegated authority, September 18, 2012.
Dated at Washington, DC, this 29th of August 2012.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC–8–400 series airplanes. This proposed AD was prompted by reports of engine fire/overheat detector assemblies advance pneumatic detectors (APDs) failing to reset after activation due to permanent deformation of the detector switch diaphragm after being exposed to high temperatures. This proposed AD would require replacing all three APDs with new detector assemblies. We are proposing this AD to prevent a continued engine fire indication in the cockpit after the actual fire has been extinguished, which is misleading and may influence the pilot to conduct a potentially hazardous “off-airport” landing.
We must receive comments on this proposed AD by November 16, 2012.
You may send comments by any of the following methods:
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For service information identified in this proposed AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416–375–4000; fax 416–375–4539; email
You may examine the AD docket on the Internet at
Mazdak Hobbi, Aerospace Engineer, Propulsion and Services Branch, ANE–173, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516–228–7330; fax 516–794–5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF–2012–07, dated January 27, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There have been engine fires on DHC–8 Series 400 aeroplanes, where the “ENGINE FIRE, CHECK FIRE DETECT” warning and “FUEL OFF” handle lights failed to reset and remained illuminated after the fire was extinguished. An investigation has revealed that the existing engine fire/overheat detector assemblies “Advance Pneumatic Detectors (APD)” may fail to reset after activation due to permanent deformation of the detector switch diaphragm after being exposed to high temperatures.
This abnormal condition of a continued engine fire indication in the cockpit, after the actual fire has been extinguished, is misleading and may influence the pilot's decision to conduct a potentially hazardous “off-airport” landing, which is considered an unsafe condition that warrants mitigating action.
To mitigate this potentially hazardous condition, Bombardier has issued multiple service bulletins (SBs) [Bombardier Service Bulletins 84–26–08, Revision A, dated May 12, 2011; 84–26–09, Revision A, dated May 12, 2011; and 84–26–12, Revision A, dated December 13, 2011] to replace all three affected APDs with new detector assemblies that are not susceptible to the subject diaphragm deformation when exposed to excessive heat. * * *
You may obtain further information by examining the MCAI in the AD docket.
Bombardier, Inc. has issued Service Bulletins 84–26–08, Revision A, dated May 12, 2011; 84–26–09, Revision A, dated May 12, 2011; and 84–26–12, Revision A, dated December 13, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 84 products of U.S. registry. We also estimate that it would take about 63 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $5,700 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for
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 procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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.
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.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by November 16, 2012.
None.
This AD applies to Bombardier, Inc. Model DHC–8–400, –401, and –402 airplanes; certificated in any category; serial numbers 4001 through 4373 inclusive.
Air Transport Association (ATA) of America Code 26, Fire protection.
This AD was prompted by reports of engine fire/overheat detector assemblies advance pneumatic detectors (APDs) failing to reset after activation due to permanent deformation of the detector switch diaphragm after being exposed to high temperatures. We are issuing this AD to prevent a continued engine fire indication in the cockpit after the actual fire has been extinguished, which is misleading and may influence the pilot to conduct a potentially hazardous “off-airport” landing.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 6,000 flight hours or 30 months after the effective date of this AD, whichever occurs first, replace the APDs as specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD.
(1) For the nacelle of the engine primary zone: Remove any APD having part number (P/N) 10–1098 and install a new APD having P/N 10–1098–01, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84–26–08, Revision A, dated May 12, 2011.
(2) For the nacelle of the landing gear primary zone: Remove any APD having P/N 10–1097 or 10–1097–01 and install a new APD having P/N 10–1097–02, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84–26–09, Revision A, dated May 12, 2011.
(3) For the propeller engine controller: Remove any APD having P/N 10–1096, 10–1096–01, or 10–1096–02 (serial number is all numeric characters), and install a new APD having P/N 10–1096–02 (serial number is three alpha and four numeric characters), in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84–26–12, Revision A, dated December 13, 2011.
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD.
(1) Bombardier Service Bulletin 84–26–08, dated March 11, 2011.
(2) Bombardier Service Bulletin 84–26–09, dated March 11, 2011.
(3) Bombardier Service Bulletin 84–26–12, dated October 12, 2011.
The following provisions also apply to this AD:
(1) Refer to MCAI Transport Canada Civil Aviation Airworthiness Directive CF–2012–07, dated January 27, 2012; and the service bulletins identified in paragraphs (j)(1)(i), (j)(1)(ii), and (j)(1)(iii) of this AD; for related information.
(i) Bombardier Service Bulletin 84–26–08, Revision A, dated May 12, 2011.
(ii) Bombardier Service Bulletin 84–26–09, Revision A, dated May 12, 2011.
(iii) Bombardier Service Bulletin 84–26–12, Revision A, dated December 13, 2011.
(2) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416–375–4000; fax 416–375–4539;
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain Cessna Aircraft Company (Cessna) Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H airplanes. The existing AD currently requires an inspection of the engine oil pressure switch and, if applicable, replacement of the engine oil pressure switch. Since we issued that AD, we have received new reports of internal failure of the engine oil pressure switch, which could result in complete loss of engine oil with consequent partial or complete loss of engine power or fire. This proposed AD would increase the applicability of the AD and place a life-limit of 3,000 hours time-in-service on the engine oil pressure switch, requiring replacement when the engine oil pressure switch reaches its life limit. We are proposing this AD to correct the unsafe condition on these products.
We must receive comments on this proposed AD by November 16, 2012.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517–5800; fax (316) 942–9006; Internet:
You may examine the AD docket on the Internet at
Jeff Janusz, Sr. Propulsion Engineer, Wichita Aircraft Certification Office, FAA, 1801 Airport Road, Wichita, KS 67209; phone: (316) 946–4148; fax: (316) 946–4107; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On February 11, 2000, we issued AD 2000–04–01, amendment 39–11583 (65 FR 8649, February 22, 2000), for certain Cessna Aircraft Company Models 172R, 172S, 182S, 206H, and T206H airplanes. That AD requires inspection of the engine oil pressure switch to determine if the engine oil pressure switch is part-number (P/N) 77041 or P/N 83278 and replacement of any P/N 77041 engine oil pressure switch with a P/N 83278 engine oil pressure switch. That AD resulted from reports of failure of the engine oil pressure switch diaphragm. We issued that AD to prevent loss of engine oil through the failure of the engine oil pressure switch diaphragm, which could result in partial or complete loss of engine power.
Since we issued AD 2000–04–01, amendment 39–11583 (65 FR 8649, February 22, 2000), we have received new reports of internal failure of the engine oil pressure switch, which could result in complete loss of engine oil with consequent partial or complete loss of engine power or fire.
We reviewed Cessna Service Bulletin 07–79–01, dated January 29, 2007. The service information describes procedures for replacement of the engine oil pressure switch.
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 these same type designs.
This proposed AD would retain none of the requirements of AD 2000–04–01, amendment 39–11583 (65 FR 8649, February 22, 2000). This proposed AD would increase the applicability statement of the existing AD and require an inspection of the engine oil pressure switch with replacement of the engine oil pressure switch when it reaches its life limit of 3,000 hours time-in-service. We are proposing this AD to correct the unsafe condition on these products.
Applicability in this proposed AD has been expanded to include additional airplane serial numbers.
We estimate that this proposed AD affects 6,155 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 procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have 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.
(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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2000–04–01, Amendment 39–11583 (65 FR 8649, February 22, 2000), and adding the following new AD:
The FAA must receive comments on this AD action by November 16, 2012.
This AD supersedes AD 2000–04–01, Amendment 39–11583 (65 FR 8649, February 22, 2000).
This AD applies to Cessna Aircraft Company Models 172R, serial numbers (S/N) 17280001 through 17281622; 172S, S/N 172S8001 through 172S11244; 182S, S/N 18280001 through 18280944; 182T, S/N 18280945 through 18282356; T182T, S/N T18208001 through T18209096; 206H, S/N 20608001 through 20608350; and T206H, S/N T20608001 through T20609079; certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 7931, Engine Oil Pressure.
This AD was prompted by new reports of internal failure of the engine oil pressure switch, which could result in complete loss of engine oil with consequent partial or complete loss of engine power or fire. We are issuing this AD to place a life-limit on the engine oil pressure switch after which replacement would be required.
Comply with this AD within the compliance times specified, following Cessna Service Bulletin SB 07–79–01, dated January 29, 2007, unless already done.
(1) At the next scheduled oil change, annual inspection, or 100-hour inspection after the effective date of this AD, whichever occurs later, but in no case later than 12 months after the effective date of this AD, inspect the engine oil pressure switch to determine if it is part-number (P/N) 77041 or P/N 83278.
(2) If after the inspection required in paragraph (g)(1) of this AD, P/N 77041 engine oil pressure switch is installed, before further flight, replace the engine oil pressure switch with a new, zero time, P/N 83278 engine oil pressure switch. Record the engine oil pressure switch part number, date, and airplane hours TIS in the airplane log book. The recorded engine oil pressure switch TIS will be used as the benchmark for calculation of the 3,000 hour TIS limit on the engine oil pressure switch.
(3) After the effective date of this AD, do not install a P/N 77041 engine oil pressure switch on any affected airplane.
(4) If after the inspection required in paragraph (g)(1) of this AD it is confirmed that P/N 83278 engine oil pressure switch is installed, through inspection of the airplane or engine logbooks determine the TIS of the engine oil pressure switch.
(5) If after the inspection required in paragraph (g)(1) of this AD you cannot positively identify the hours TIS on the P/N 83278 engine oil pressure switch, before further flight, replace the engine oil pressure switch with a new, zero time, P/N 83278 engine oil pressure switch. Record the engine oil pressure switch part number, date, and airplane hours in the airplane log book. The recorded engine oil pressure switch TIS will be used as the benchmark for calculation of the 3,000 hour TIS limit on the engine oil pressure switch.
(6) When the engine oil pressure switch is at or greater than 3,000 hours TIS or within 50 hours TIS after the effective date of this AD, whichever occurs later, and repetitively
(1) The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Jeff Janusz, Sr. Propulsion Engineer, Wichita ACO, FAA, 1801 Airport Road, Wichita, KS 67209 phone: (316) 946–4148; fax: (316) 946–4107; email:
(2) For service information identified in this AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone: (316) 517–5800; fax (316) 942–9006; Internet:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain Airbus Model A318, A319, A320, and A321 series airplanes. The existing AD currently requires one-time and repetitive inspections of specific areas and, when necessary, corrective actions for those rudders where production rework has been identified. Since we issued that AD, we have determined that additional inspections and corrective actions are necessary to address the identified unsafe condition, and that additional airplanes with certain rudders are subject to the identified unsafe condition. This proposed AD would add airplanes with certain rudders to the AD applicability; change an inspection type for certain reinforced rudder areas; require pre-inspections and repairs if needed; and require permanent restoration of vacuum loss holes. This proposed AD would also require additional inspections for certain rudders and repair if needed; and require replacement of certain rudders with new rudders. We are proposing this AD to detect and correct extended de-bonding, which might degrade the structural integrity of the rudder. The loss of the rudder leads to degradation of the handling qualities and reduces the controllability of the airplane.
We must receive comments on this proposed AD by November 16, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone (425) 227–1405; fax (425) 227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On October 26, 2010, we issued AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)). That AD required actions intended to address an unsafe condition on the products listed above.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010–0164, dated August 5, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Surface defects were visually detected on the rudder of one A319 and one A321 in-service aeroplane.
Investigation has determined that the defects reported on both rudders corresponded to areas that had been reworked in production. The investigation confirmed that the defects were a result of de-bonding between the skin and honeycomb core.
An extended de-bonding, if not detected and corrected, may degrade the structural integrity of the rudder. The loss of the rudder leads to degradation of the handling qualities and reduces the controllability of the aeroplane.
EASA AD 2009–0141 required inspections of specific areas and, when necessary, the application of corrective actions for those rudders where production reworks have been identified.
This [EASA] AD retains the requirements of EASA AD 2009–0141 (addressing the populations of rudders affected by AOT A320–55–1038), which is superseded, and requires:
This [EASA] AD also addresses the populations of rudders affected by AOT A320–55–1039 and Airbus SB A320–55–1035, A320–55–1036 and A320–55–1037 which were not included in EASA AD 2009–0141.
Airbus has issued the following service information.
• Airbus All Operators Telex (AOT) A320–55A1038, dated April 22, 2009.
• Airbus AOT A320–55A1039, dated November 4, 2009.
• Airbus Service Bulletin A320–55–1035, Revision 01, dated July 2, 2010.
• Airbus Service Bulletin A320–55–1036, Revision 01, dated July 2, 2010.
• Airbus Service Bulletin A320–55–1037, Revision 01, dated July 2, 2010.
• Airbus Technical Disposition TD/K4/S2/27051/2009, Issue B, dated February 25, 2009.
• Airbus Technical Disposition TD/K4/S2/27086/2009, Issue E, dated September 17, 2009.
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD requires the permanent restoration of vacuum loss holes and does not allow the temporary restoration with self-adhesive patches, or temporary restoration with resin that is specified in the MCAI.
Based on the service information, we estimate that this proposed AD would affect about 721 products of U.S. registry.
The actions that are required by AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)), and retained in this proposed AD take about 11 work-hours per product, at an average labor rate of $85 per work hour. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the currently required actions on U.S. operators to be $674,135, or $935 per product.
We estimate that it would take about 11 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $674,135, or $935 per product.
In addition, we estimate that any necessary follow-on actions would take about 12 work-hours and require parts costing $10,000, for a cost of $11,020 per product. We have no way of determining the number of products that may need these actions.
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 procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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.
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.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)), and adding the following new AD:
We must receive comments by November 16, 2012.
This AD supersedes AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)).
This AD applies to the Airbus airplanes identified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD; certificated in any category; all serial numbers having a rudder with a part number (P/N) and serial number (S/N) listed in table 1, 2, 3, 4a and 4b, 5a and 5b, or 6 to paragraph (c) of this AD.
(1) Model A318–111, –112, –121, and –122 airplanes.
(2) Model A319–111, –112, –113, –114, –115, –131, –132, and –133 airplanes.
(3) Model A320–111, –211, –212, –214, –231, –232, and –233 airplanes.
(4) Model A321–111, –112, –131, –211, –212, –213, –231, and –232 airplanes.
For table 1 to paragraph (c) of this AD, only rudder P/N D554 71000 010 00 having affected rudder S/Ns TS–1069 and TS–1090, and rudder P/N D554 71000 012 00 having affected rudder S/N TS–1227, have a core
For table 3 to paragraph (c) of this AD, only rudder P/N D554–71000–008–00 having affected rudder S/N TS–1032, and rudder P/N D554–71000–010–00 having affected rudder S/N TS–1092, have a core density of 24 kg/m
Air Transport Association (ATA) of America Code 55, Stabilizers.
This AD was prompted by reports of surface defects on rudders that were the result of debonding between the skin and honeycomb core. We are issuing this AD to detect and correct extended de-bonding, which might degrade the structural integrity of the rudder. The loss of the rudder leads to degradation of the handling qualities and reduces the controllability of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
This paragraph restates the requirements of paragraph (g) of AD 2010–23–07 Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)). For rudders identified in table 1 to paragraph (c) of this AD with a honeycomb core density of 24 kg/m
(1) Within 200 days after December 10, 2010 (the effective date of AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883))): Perform a vacuum loss inspection on the rudder reinforced area.
(2) Within 20 months after December 10, 2010 (the effective date of AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883))): Perform an elasticity laminate checker inspection on the rudder trailing edge area. Repeat the inspection two times, at intervals not to exceed 4,500 flight cycles, but not sooner than 4,000 flight cycles after the last inspection.
(3) Within 200 days after December 10, 2010 (the effective date of AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883))): Perform an elasticity laminate checker inspection of the other areas (splice/lower rib/upper edge/leading edge/other specified locations). Repeat the inspection at intervals not to exceed 1,500 flight cycles or 200 days, whichever comes first.
(4) Within 20 months after December 10, 2010 (the effective date of AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883))): Perform a vacuum loss inspection of the other areas (splice/lower rib/upper edge/leading edge/other specified locations). Accomplishment of the action specified in paragraph (g)(4) of this AD terminates the requirements of paragraph (g)(3) of this AD.
This paragraph restates the requirements of paragraph (h) of AD 2010–23–07 Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)). For rudders that do not have a honeycomb core density of 24 kg/m
(1) Within 200 days after the reference date, perform a vacuum loss inspection on the rudder reinforced area.
(2) Within 20 months after the reference date, perform an elasticity laminate checker inspection on the rudder trailing edge area. Repeat the inspection two times at intervals not to exceed 4,500 flight cycles, but not sooner than 4,000 flight cycles after the last inspection.
(3) Within 200 days after the reference date, perform an elasticity laminate checker inspection of the other areas (splice/lower rib/upper edge/leading edge/other specified locations). Repeat the inspection at intervals not to exceed 1,500 flight cycles or 200 days, whichever comes first.
(4) Within 20 months after the reference date, perform a vacuum loss inspection of the other areas (splice/lower rib/upper edge/leading edge/other specified locations). Accomplishment of the actions specified in this paragraph terminates the requirements of paragraph (h)(3) of this AD.
This paragraph restates the requirements of paragraph (i) of AD 2010–23–07 Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)). In case of de-bonding found during any inspection required by paragraph (g) or (h) of this AD, before further flight, contact Airbus for further instructions and apply the associated instructions and corrective actions
This paragraph restates the requirements of paragraph (j) of AD 2010–23–07 Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)). At the applicable time specified in paragraph (j)(1) or (j)(2) of this AD, submit a report of the findings (both positive and negative) of each inspection required by paragraphs (g) and (h) of this AD. The report must include the inspection results, as specified in Airbus Technical Disposition TD/K4/S2/27086/2009, Issue E, dated September 17, 2009. For positive findings, submit the report to either the Manager, Seer1/Seer2/Seer3 Customer Services, fax +33 (0)5 61 93 28 73, email
(1) For any inspection done on or after December 10, 2010 (the effective date of AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883))): Submit the report within 30 days after the inspection.
(2) For any inspection done before December 10, 2010 (the effective date of AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883))): Submit the report within 30 days after December 10, 2010.
This paragraph restates the provisions of paragraph (k) of AD 2010–23–07, Amendment 39–16496, (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)). All rudders that have passed the inspection specified in paragraphs (g)(1), (g)(2), (g)(3), (g)(4), (h)(1), (h)(2), (h)(3), and (h)(4) of this AD before December 10, 2010 (the effective date of AD 2010–23–07), in accordance with Airbus AOT A320–55A1038, dated April 22, 2009; or Airbus Technical Disposition TD/K4/S2/27051/2009, Issue B, dated February 25, 2009; are compliant with this AD only for the areas inspected. Additional areas defined in Section 0, “Reason for Revision,” of Airbus AOT A320–55A1038, Revision 01, dated June 10, 2009; or Airbus AOT A320–55A1038, Revision 02, dated September 28, 2009; must be inspected as specified in paragraph (g) or (h) of this AD. For all areas, the repetitive inspections required by paragraph (g) or (h) of this AD remain applicable.
This paragraph restates the requirements of paragraph (l) of AD 2010–23–07, Amendment 39–16496 (75 FR 68181, November 5, 2010; corrected December 17, 2010 (75 FR 78883)). After December 10, 2010 (the effective date of AD 2010–23–07), no rudder listed in table 1 to paragraph (c) of this AD may be installed on any airplane, unless the rudder is inspected in accordance with paragraph (g) or (h) of this AD, as applicable, and all applicable actions specified in paragraph (i) of this AD are done.
If no de-bonding is found during any inspection required by paragraph (g) or (h) of this AD: Before further flight, restore the vacuum loss holes by doing a permanent restoration with resin, in accordance with Note 3 of Airbus AOT A320–55A1038, Revision 02, dated September 28, 2009. Before doing the resin injection, do a local ultrasound inspection in reinforced areas, and a thermography inspection in other areas, for damage, in accordance with Note 3 of Airbus AOT A320–55A1038, Revision 02, dated September 28, 2009. If any damage is found during any inspection required by this paragraph: Before further flight, repair the damage using a method approved by either the Manager, International Branch, ANM–116; or the EASA (or its delegated agent).
For rudders identified in table 2 to paragraph (c) of this AD, do the actions specified in paragraphs (n)(1) and (n)(2) of this AD, in accordance with Airbus AOT A320–55A1039, dated November 4, 2009, for the locations defined in that AOT. For this paragraph, “reference date” is defined as the effective date of this AD or the date when the rudder will accumulate 20,000 total flight cycles from its first installation on an airplane, whichever occurs later.
(1) Within 20 months after the effective date of this AD, or within 200 days after the reference date, whichever occurs first: Perform X-ray, and/or ELCh, and/or vacuum loss, and/or thermography inspections for damage, as applicable to rudder part number and serial number, in accordance with the instructions of paragraph 4.2.2.1.1. of Airbus AOT A320–55A1039, dated November 4, 2009.
(2) At the applicable time specified in paragraph (n)(2)(i) or (n)(2)(ii) of this AD, send the developed X-ray films and the film layout arrangement, if applicable, to Attn: SDC32 Technical Data and Documentation Services, Airbus Customer Services Directorate, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; fax (+33) 5 61 93 28 06; email
(i) If the inspection was done on or after the effective date of this AD: Submit the X-ray films and the film layout arrangement within 10 days after the inspection.
(ii) If the inspection was done before the effective date of this AD: Submit the X-ray films and the film layout arrangement within 10 days after the effective date of this AD.
(3) If any damage is found during any inspection required by paragraph (n) of this AD: Before further flight, repair the damage using a method approved by either the Manager, International Branch, ANM–116; or the EASA (or its delegated agent).
For rudders identified in table 2 to paragraph (c) of this AD: Within 1,500 flight cycles or 200 days after doing the requirements of paragraph (n)(1) of this AD, whichever occurs first, do the actions specified in paragraphs (o)(1) and (o)(2) of this AD.
(1) Perform an ELCh inspection for damage on the rudder trailing edge area, in accordance with the instructions of paragraph 4.2.2.1.2. of Airbus AOT A320–55A1039, dated November 4, 2009. In case of no finding, repeat the inspection two times, at intervals not to exceed 4,500 flight cycles but not sooner than 4,000 flight cycles after the last inspection.
(2) Perform a vacuum loss inspection for damage of the other areas (splice/lower rib/upper edge/leading edge/other specified locations), in accordance with the instructions of paragraph 4.2.2.1.2. of Airbus AOT A320–55A1039, dated November 4, 2009.
(3) If any damage is found during any inspection required by paragraph (o) of this AD: Before further flight, repair the damage using a method approved by either the Manager, International Branch, ANM–116; or the EASA (or its delegated agent).
If no damage is found during any inspection required by paragraph (o) of this AD: Before further flight, restore the vacuum loss holes by doing a permanent restoration with resin, in accordance with Note 3 of Airbus AOT A320–55A1039, dated November 4, 2009. Before doing the resin injection, do a local ultrasound inspection in reinforced areas, and a thermography inspection in other areas, for damage, in accordance with Note 3 of Airbus AOT A320–55A1039, dated November 4, 2009. If any damage is found during any inspection required by this paragraph: Before further flight, repair the damage using a method approved by either the Manager, International Branch, ANM–116; or the EASA (or its delegated agent).
For rudders identified in table 3 to paragraph (c) of this AD, do the actions specified in paragraphs (q)(1) and (q)(2) of this AD, in accordance with the instruction of Airbus AOT A320–55A1039, dated November 4, 2009, for the locations defined in that AOT. For this paragraph, “reference date” is defined as the effective date of this
(1) For rudders identified in table 3 to paragraph (c) of this AD with a honeycomb core density of 24 kg/m
(2) For rudders identified in table 3 to paragraph (c) of this AD that do not have a honeycomb core density of 24 kg/m
For rudders identified in tables 4a and 4b to paragraph (c) of this AD: At the later of the times specified in paragraphs (r)(1) and (r)(2) of this AD, perform a vacuum loss inspection on the rudder reinforced area for damage, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–55–1035, Revision 01, dated July 2, 2010 (for Model A320 airplanes); Airbus Service Bulletin A320–55–1036, Revision 01, dated July 2, 2010 (for Model A318 and A321 airplanes); or Airbus Service Bulletin A320–55–1037, Revision 01, dated July 2, 2010 (for Model A319 airplanes).
(1) Before the rudder accumulates 17,000 total flight cycles from its first installation on an airplane without exceeding 20 months from the effective date of this AD.
(2) Within 200 days after the effective date of this AD.
For rudders identified in tables 4a and 4b to paragraph (c) of this AD: Within 20 months after the effective date of this AD, perform an ELCh inspection for damage on the rudder trailing edge area, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–55–1035, Revision 01, dated July 2, 2010 (for Model A320 airplanes); Airbus Service Bulletin A320–55–1036, Revision 01, dated July 2, 2010 (for Model A318 and A321 airplanes); or Airbus Service Bulletin A320–55–1037, Revision 01, dated July 2, 2010 (for Model A319 airplanes). Repeat the inspection two times at intervals not to exceed 4,500 flight cycles, but not sooner than 4,000 flight cycles after the last inspection.
For rudders identified in tables 4a and 4b to paragraph (c) of this AD: At the later of the times specified in paragraphs (t)(1) and (t)(2) of this AD, perform an ELCh inspection for damage of the other areas (splice/lower rib/upper edge/leading edge/other specified locations) for damage, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–55–1035, Revision 01, dated July 2, 2010 (for Model A320 airplanes); Airbus Service Bulletin A320–55–1036, Revision 01, dated July 2, 2010 (for Model A318 and A321 airplanes); or Airbus Service Bulletin A320–55–1037, Revision 01, dated July 2, 2010 (for Model A319 airplanes). Repeat the inspection thereafter at intervals not to exceed 1,500 flight cycles or 200 days, whichever comes first.
(1) Before the rudder accumulates 17,000 total flight cycles from its first installation on an airplane without exceeding 20 months from the effective date of this AD.
(2) Within 200 days after the effective date of this AD.
For rudders identified in tables 4a and 4b of this AD: Within 20 months after the effective date of this AD, perform a vacuum loss inspection for damage of the lower rib, upper edge, leading edge, and other specified locations, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–55–1035, Revision 01, dated July 2, 2010 (for Model A320 airplanes); Airbus Service Bulletin A320–55–1036, Revision 01, dated July 2, 2010 (for Model A318 and A321 airplanes); or Airbus Service Bulletin A320–55–1037, Revision 01, dated July 2, 2010 (for Model A319 airplanes). Accomplishment of the actions specified in this paragraph terminates the requirements of paragraph (t) of this AD.
In case of damage found during any inspection required by paragraph (r), (s), (t), or (u) of this AD: Before further flight, repair the damage using a method approved by either the Manager, International Branch, ANM–116; or the EASA (or its delegated agent).
If no damage is found during any inspection required by paragraph (r) or (u) of this AD: Before further flight, restore the vacuum loss holes by doing a permanent restoration with resin, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–55–1035, Revision 01, dated July 2, 2010 (for Model A320 airplanes); Airbus Service Bulletin A320–55–1036, Revision 01, dated July 2, 2010 (for Model A318 and A321 airplanes); or Airbus Service Bulletin A320–55–1037, Revision 01, dated July 2, 2010 (for Model A319 airplanes). Before doing the resin injection, do a local ultrasound inspection in reinforced areas, and a thermography inspection in other areas, for damage, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–55–1035, Revision 01, dated July 2, 2010 (for Model A320 airplanes); Airbus Service Bulletin A320–55–1036, Revision 01, dated July 2, 2010 (for Model A318 and A321 airplanes); or Airbus Service Bulletin A320–55–1037, Revision 01, dated July 2, 2010 (for Model A319 airplanes). If any damage is found during any inspection required by this paragraph: Before further flight, repair the damage using a method approved by either the Manager, International Branch, ANM–116; or the EASA (or its delegated agent).
This paragraph provides credit for the inspections required by paragraphs (r), (s), (t), (u), and (w) of this AD only for the inspected area for rudders identified in tables 4a and 4b to paragraph (c) of this AD, if the area passed the inspection before the effective date of this AD using Airbus Service Bulletin A320–55–1035, dated February 17, 2010 (for Model A320 airplanes); Airbus Service Bulletin A320–55–1036, dated February 17, 2010 (for Model A318 and A321 airplanes); or Airbus Service Bulletin A320–55–1037, dated February 17, 2010 (for Model A319 airplanes). For all other inspected areas, the repetitive inspections required by paragraph (s), (t), and (w) of this AD are still required.
For rudders identified in tables 5a and 5b to paragraph (c) of this AD: Within 4,500 flight cycles but not sooner than 4,000 flight cycles after the sampling inspection, perform an ELCh inspection for damage on the rudder trailing edge area, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–55–1035, Revision 01, dated July 2, 2010 (for Model A320 airplanes); Airbus Service Bulletin A320–55–1036, Revision 01, dated July 2, 2010 (for Model A318 and A321 airplanes); or Airbus Service Bulletin A320–55–1037, Revision 01, dated July 2, 2010 (for Model A319 airplanes). Repeat the inspection within 4,500 flight cycles, but not sooner than 4,000 flight cycles after the last inspection. If any damage is found during any inspection required by paragraph (y) of this AD: Before further flight, repair the damage using a method approved by either the Manager, International Branch, ANM–116; or the EASA (or its delegated agent).
This paragraph provides credit for the inspection required by paragraph (y) of this AD only for the inspected area for rudders identified in tables 5a and 5b to paragraph (c) of this AD that have passed the inspection before the effective date of this AD using Airbus Service Bulletin A320–55–1035, dated February 17, 2010 (for Model A320 airplanes); Airbus Service Bulletin A320–55–1036, dated February 17, 2010 (for Model A318 and A321 airplanes); or Airbus Service Bulletin A320–55–1037, dated February 17, 2010 (for Model A319 airplanes). For all inspection areas, the repetitive inspections required by paragraph (y) of this AD are still required.
For rudders identified in table 6 to paragraph (c) of this AD, do the actions specified in paragraphs (aa)(1), (aa)(2), (aa)(3), and (aa)(4) of this AD, in accordance with Airbus AOT A320–55A1038, Revision 02, dated September 28, 2009. For this paragraph, “reference date” is defined as the date when the rudder will accumulate 20,000 total flight cycles from its first installation on an airplane.
(1) Within 200 days after the reference date, perform a vacuum loss inspection on the rudder reinforced area.
(2) Within 20 months after the reference date, perform an elasticity laminate checker inspection on the rudder trailing edge area. Repeat the inspection two times at intervals not to exceed 4,500 flight cycles, but not sooner than 4,000 flight cycles, after the last inspection.
(3) Within 200 days after the reference date, perform an elasticity laminate checker inspection of the other areas (splice/lower rib/upper edge/leading edge/other specified locations). Repeat the inspection at intervals not to exceed 1,500 flight cycles or 200 days, whichever comes first.
(4) Within 20 months after the reference date, perform a vacuum loss inspection of the other areas (splice/lower rib/upper edge/leading edge/other specified locations). Accomplishment of the actions specified in this paragraph terminates the requirements of paragraph (h)(3) of this AD.
In case of de-bonding found during any inspection required by paragraph (aa) of this AD: Before further flight, contact Airbus for further instructions and apply the associated instructions and corrective actions in accordance with the approved data provided.
If no de-bonding is found during any inspection required by paragraph (aa) of this AD: Before further flight, restore the vacuum loss holes by a permanent restoration with resin, in accordance with Note 3 of Airbus AOT A320–55A1038, Revision 02, dated September 28, 2009. Before doing the resin injection, do a local ultrasound inspection in reinforced areas, and a thermography inspection in other areas, for damage, in accordance with Note 3 of Airbus AOT A320–55A1038, Revision 02, dated September 28, 2009. If any damage is found during any inspection required by this paragraph: Before further flight, repair the damage using a method approved by either the Manager, International Branch, ANM–116; or the EASA (or its delegated agent).
At the applicable time specified in paragraph (dd)(1) or (dd)(2) of this AD, submit a report of the findings (both positive and negative) of each inspection required by paragraphs (n), (o), (r), (s), (t), (u), (y), and (aa) of this AD. The report must include the inspection results, as specified in Airbus Technical Disposition TD/K4/S2/27086/2009, Issue E, dated September 17, 2009. For positive findings, submit the report to either the Manager, Seer1/Seer2/Seer3 Customer Services, fax +33 (0)5 61 93 28 73, email
(1) For any inspection done on or after the effective date of this AD: Submit the report within 10 days after the inspection.
(2) For any inspection done before the effective date of this AD: Submit the report within 10 days after the effective date of this AD.
As of the effective date of this AD, no rudder listed in table 1, 2, 3, 4a, 4b, 5a, 5b, or 6 to paragraph (c) of this AD may be installed on any airplane, unless the rudder is in compliance with the requirements of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to MCAI EASA Airworthiness Directive 2010–0164, dated August 5, 2010, and the following service information, for related information.
(i) Airbus AOT A320–55A1038, dated April 22, 2009.
(ii) Airbus AOT A320–55A1038, Revision 01, dated June 10, 2009.
(iii) Airbus AOT A320–55A1038, Revision 02, dated September 28, 2009.
(iv) Airbus AOT A320–55A1039, dated November 4, 2009.
(v) Airbus Service Bulletin A320–55–1035, Revision 01, dated July 2, 2010.
(vi) Airbus Service Bulletin A320–55–1036, Revision 01, dated July 2, 2010.
(vii) Airbus Service Bulletin A320–55–1037, Revision 01, dated July 2, 2010.
(viii) Airbus Technical Disposition TD/K4/S2/27051/2009, Issue B, dated February 25, 2009.
(ix) Airbus Technical Disposition TD/K4/S2/27086/2009, Issue E, dated September 17, 2009.
(2) For service information identified in this AD, contact Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Saab AB, Saab Aerosystems Model SAAB 2000 airplanes. This proposed AD was prompted by reports of chafing on the bottom panel of the center cabin. This proposed AD would require doing a general visual inspection to determine if certain fasteners are installed, and related investigative and corrective actions. We are proposing this AD to detect and correct any chafing on the bottom panel of the center cabin, which could affect the structural integrity of the affected wing-to-fuselage connection.
We must receive comments on this proposed AD by November 16, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Saab AB, Saab Aeronautics, SE–581 88, Linköping, Sweden; telephone +46 13 18 5591; fax +46 13 18 4874; email
You may examine the AD docket on the Internet at
Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1112; fax 425–227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012–0068, dated April 25, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
On two SAAB 2000 aeroplanes, signs of chafing have been found on the bottom panel of the centre cabin between fuselage station (STA) 562 and STA 622. The investigation results have shown that the chafing is caused by certain Hi Lok fasteners, installed as a repair during production, through the upper wing skin panel.
This condition, if not detected and corrected, could affect the structural integrity of the affected wing-to-fuselage connection.
To address this potential unsafe condition, SAAB issued Service Bulletin (SB) 2000–53–057 to provide instructions for a general visual inspection to detect chafing in the area between the upper wing skin and the cabin centre bottom panel and to verify if there are Hi Lok fasteners installed with the collar up.
For the reasons described above, this [EASA] AD requires a one-time inspection of the designated area, the accomplishment of corrective action(s) [repair], depending on findings, and the reporting of all inspection results * * *.
This [EASA] AD is considered an interim action and further AD action may follow.
Saab AB, Saab Aerosystems has issued Service Bulletin 2000–53–057, dated November 22, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Saab Service Bulletin 2000–53–057, dated November 22, 2011, specifies to contact the manufacturer for repair instructions, but this proposed AD would require doing the repair using a method that we approve.
Based on the service information, we estimate that this proposed AD would affect about 10 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,400, or $340 per product.
We have received no definitive data that would enable us to provide a cost estimate for the on-condition actions specified in 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 procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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.
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.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by November 16, 2012.
None.
This AD applies to Saab AB, Saab Aerosystems Model SAAB 2000 airplanes, certificated in any category, all serial numbers.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of chafing on the bottom panel of the center cabin. We are issuing this AD to detect and correct any chafing on the bottom panel of the center cabin, which could affect the structural integrity of the affected wing-to-fuselage connection.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 12 months after the effective date of this AD, do a general visual inspection of the area between the upper part of the wing skin and the center bottom panel to determine if any Hi Lok fasteners are installed with the collar up, and do all applicable related investigative actions, in accordance with the Accomplishment Instructions of Saab Service Bulletin 2000–53–057, dated November 22, 2011.
If any chafing or damage is found during any inspection required by paragraph (g) of this AD: Before further flight, repair in accordance with a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent).
Submit a report of the findings (both positive and negative) of the inspection required by paragraph (g) of this AD to Saab AB, Saab Aerosystems, in accordance with the Accomplishment Instructions of Saab Service Bulletin 2000–53–057, dated November 22, 2011, at the applicable time specified in paragraph (h)(1) or (h)(2) of this AD. The report must include the inspection results, the airplane serial number, and the number of landings and flight hours on the airplane.
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to MCAI EASA Airworthiness Directive 2012–0068, dated April 25, 2012;
(2) For service information identified in this AD, contact Saab AB, Saab Aeronautics, SE–581 88, Linköping, Sweden; telephone +46 13 18 5591; fax +46 13 18 4874; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to all Airbus Model A330–200 and –300 series airplanes, and Model A340–200 and –300 series airplanes. The existing AD currently requires repetitive inspections to detect discrepancies of the transfer tubes and the collar of the ball nut of the trimmable horizontal stabilizer actuator (THSA), and corrective action if necessary; repetitive inspections for discrepancies of the ball screw assembly, and corrective action if necessary; repetitive greasing of the THSA ball nut, and replacement of the THSA if necessary; and modification or replacement (as applicable) of the ball nut assembly, which would end certain repetitive inspections. Since we issued that AD, we have determined the repetitive inspections of the ball screw assembly (and corrective action if necessary) and repetitive greasing is needed for additional THSA nuts. This proposed AD would remove certain inspections, revise certain actions, and add airplanes to the applicability. We are proposing this AD to prevent degraded operation of the THSA, which could result in reduced controllability of the airplane.
We must receive comments on this proposed AD by November 16, 2012.
You may send comments by any of the following methods:
•
•
•
•
For Airbus service information identified in this proposed AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1138; fax 425–227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On March 17, 2005, we issued AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005). That AD required actions intended to address an unsafe condition on the products listed above. Since we issued AD 2005–07–04, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010–0192 (corrected), dated October 11, 2010; and EASA Airworthiness Directive 2010–0193 (corrected), dated October 11, 2010; (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Several cases of transfer tube disconnection from the ball-nut of the trimmable horizontal stabilizer actuator (THSA) part number (P/N) 47172 and 47147–400 were detected on the ground during greasing and maintenance.
This condition is caused by water ingress into the ball-nut resulting in the jamming of the ball transfer circuit when the water freezes.
If the three (independent) ball circuits fail, then the THSA will operate on a fail-safe nut. This nut (which operates without balls) would then jam after several movements on the screw of the THSA.
This degraded operation is not detectable in the cockpit by the crew as long as the THSA does not jam and could damage the ball screw and the fail-safe nut.
To detect this unsafe condition, [Dirección General de Aviación Civil] DGAC France AD F–2001–356 [and F–2001–357] was issued to require repetitive inspections of the transfer tubes and their collars in order to detect at
Further to a new case of transfer tube disconnection, * * * [revised ADs] required an additional repetitive greasing task with reinforcement of the ball-nut maintenance greasing instructions.
In addition, the electrical flight control computers monitor the operation of the THSA and the jamming of this actuator could be detected and indicated by messages on the maintenance system and on the [electronic centralized aircraft monitor] ECAM. In this case a mandatory inspection of the THSA is required before the next flight.
DGAC France AD F–2002–038 [and F–2002–037] required application of a final fix (related to inspection and greasing task required by DGAC France AD F–2001–356) [and F–2001–357] for the THSA P/N 47172 by application of Airbus modification 49590/Service Bulletin (SB) A330–27–3085 [or SB A340–27–4089]. It changes the THSA P/N from 47172 to 47172–300.
Later on, DGAC France AD F–2002–414R3 replaced the DGAC AD France F–2001–356R2 and F–2002–038 [and DGAC France AD F2002–415R2 superseded DGAC France ADs F–2001–357R2 and F–2002–037] requiring:
[DGAC France AD F–2002–414R3 and F–2002–415R2 correspond to FAA AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005).]
Airbus has later introduced 4 new THSA P/N (47172–500, 47172–510, 47172–520 and 47172–530).
This [EASA] AD retains the requirements of DGAC France AD F–2002–414R3 [and F–2002–415R2], which is superseded, and requires repetitive inspections and lubrications of the new THSA P/N.
The repetitive inspection and lubrication requirements for THSA P/N 47172–520 and 47172–530 shall [also] be included in the next Airworthiness Limitation Section (ALS) Part 4 revision.
Corrective actions include replacing the THSA with a new THSA if cracks, dents, or corrosion are found, or if the feeler gage has failed at any of the four gaps. Corrective action is using a method approved by either the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the EASA (or its delegated agent) for a finding of metallic debris, loose nut, damaged or missing lock washers, pins and parts, or incorrect installation of items. AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005), specified repetitive inspections for discrepancies. This proposed AD specifies repetitive inspections for the integrity of the primary and secondary load path, and the CSPs, for certain airplanes. The unsafe condition is the degraded operation of the THSA, which could result in reduced controllability of the airplane. You may obtain further information by examining the MCAI in the AD docket.
Airbus has issued the following service information for Model A330–200 and –300 series airplanes.
• Airbus Mandatory Service Bulletin A330–27–3102, Revision 08, excluding Appendix 1, dated December 6, 2007.
• Task 27.40.00/02, Lubrication of THS Actuator Ball Screw Nut, of Airbus A330 MRBR, Revision 12, dated July 1, 2010.
• Task 274400–00001–1–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
• Task 274400–00001–1–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
• Task 274400–00001–2–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
• Task 274400–00001–2–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
• Task 274400–00001–3–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
• Task 274400–00001–3–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
• Task 274400–00001–4–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
• Task 274400–00001–4–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
• Task 274400–00002–1–E, Lubrication of the THSA Ball Nut, of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
Airbus has issued the following service information for Model A340–200 and –300 series airplanes.
• Airbus Mandatory Service Bulletin A340–27–4107, Revision 08, excluding Appendix 1, dated December 6, 2007.
• Task 27.40.00/02, Lubrication of THS Actuator Ball Screw Nut, of Airbus A340 MRBR, Revision 12, dated July 1, 2010.
• Task 274400–00001–1–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
• Task 274400–00001–1–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
• Task 274400–00001–2–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
• Task 274400–00001–2–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
• Task 274400–00001–3–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
• Task 274400–00001–3–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
• Task 274400–00001–4–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
• Task 274400–00001–4–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
• Task 274400–00002–1–E, Lubrication of the THSA Ball Nut, of Airbus of A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have revised the heading and wording for paragraph (i) of this AD to provide appropriate credit for previous accomplishment of certain actions. This change does not affect the intent of that paragraph.
Since issuance of AD 2005–07–04, Amendment 39–14028 (70 FR 16104,
Based on the service information, we estimate that this proposed AD would affect about 33 products of U.S. registry.
The actions that are required by AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005), and retained in this proposed AD take up to 36 work-hours per product, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required actions is up to $3,060 per product.
We estimate that it would take about 2 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $5,610, or $170 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in 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 procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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.
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.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005), and adding the following new AD:
We must receive comments by November 16, 2012.
This AD supersedes AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005).
This AD applies to all Airbus Model A330–201, –202, –203, –223, –223F, –243, –243F, –301, –302, –303, –321, –322, –323, –341, –342, and –343 airplanes; and Model A340–211, –212, –213, –311, –312, and –313 airplanes; certificated in any category.
Air Transport Association (ATA) of America Code 27: Flight Controls.
This AD was prompted by several reports of disconnection of the transfer tube from the ball nut of the trimmable horizontal stabilizer actuator (THSA). We are issuing this AD to prevent degraded operation of the THSA, which could result in reduced controllability of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
This paragraph restates the requirements of paragraph (g) of AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005). Except for Model A330–223F and –243F airplanes: Within 24 months after May 4, 2005 (the effective date of AD 2005–07–04), modify the ball nut of each THSA by doing paragraph (g)(1) or (g)(2) of this AD, as applicable.
(1) For THSAs having P/N 47172: Modify the ball nut of the THSA, or replace the existing THSA with a serviceable part having P/N 47172–300; in accordance with Airbus Service Bulletin A330–27–3085 (for Model A330 series airplanes) or A340–27–4089 (for Model A340–313 series airplanes), both Revision 02, both dated September 5, 2002; as applicable.
Airbus Service Bulletins A330–27–3085 and A340–27–4089, both Revision 02, both dated September 5, 2002, refer to TRW Aeronautical Systems Service Bulletin 47172–27–03, dated October 24, 2001, which is not incorporated by reference in this AD, as additional guidance for accomplishing the modification of the ball nut of the THSA.
(2) For THSAs having P/N 47147–200, –210, –213, –300, –303, –350, or –400: Modify the ball nut of the THSA, or replace the existing THSA with an improved part having P/N 47147–500; as applicable; in accordance with Airbus Service Bulletin A330–27–3093 (for Model A330 series airplanes) or A340–27–4099 (for Model A340–200 and –300 series airplanes), both Revision 01, both dated September 5, 2002; as applicable.
Airbus Service Bulletins A330–27–3093 and A340–27–4099, both Revision 01, both dated September 5, 2002, refer to TRW Aeronautical Systems Service Bulletin 47147–27–10, dated June 27, 2002, which is not incorporated by reference in this AD, as additional guidance for accomplishing the modification of the ball nut of the THSA.
This paragraph restates the requirements of paragraph (h) of AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005).
(1) Except for Model A330–223F and –243F airplanes, prior to or concurrently with accomplishing the requirements of paragraph (g)(2) of this AD, do all of the actions specified in the Accomplishment Instructions of the applicable Airbus service bulletins listed in table 1 or 2 to paragraph (h)(1) of this AD, as applicable, in accordance with those service bulletins.
Airbus Service Bulletin A330–27–3093,
Airbus Service Bulletin A340–27–4099, Revision 01, dated September 5, 2002, specifies that the actions in Airbus Service Bulletin A340–27–4059 be accomplished previously or concurrently. Airbus Service Bulletin A340–27–4059, Revision 03, dated December 5, 2001, specifies that the actions in Airbus Service Bulletins A340–27–4007, A340–27–4025, A340–27–4054, A340–27–4057, and A340–55–4021 be accomplished previously or concurrently.
(2) For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
This paragraph provides credit for the actions specified in paragraphs (i)(1) and (i)(2) of this AD.
(1) This paragraph provides credit for the requirements of paragraph (g)(1) of this AD, if those actions were performed before May 4, 2005 (the effective date of AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005)), using Airbus Service Bulletin A330–27–3085 (for Model A330 series airplanes) or A340–27–4089 (for Model A340–313 series airplanes), both Revision 01, both dated January 23, 2002 (which are not incorporated by reference in this AD), as applicable.
(2) This paragraph provides credit for the requirements of paragraphs (g)(2) of this AD, if those actions were performed before May 4, 2005 (the effective date of AD 2005–07–04, Amendment 39–14028 (70 FR 16104, March 30, 2005)), using Airbus Service Bulletin A330–27–3093 (for Model A330 series airplanes) or A340–27–4099 (for Model A340–200 and –300 series airplanes), both dated June 27, 2002 (which are not incorporated by reference in this AD), as applicable.
(1) Within 700 flight hours after the effective date of this AD or within 700 flight
(2) For airplanes identified in paragraphs (j)(2)(i), (j)(2)(ii), and (j)(2)(iii) of this AD, as applicable, lubrication of the THS actuator ball screw nut performed at threshold and repetitive interval not exceeding 1,000 flight hours, in accordance with Task 274400–00002–1–E, Lubrication of the THSA Ball Nut, of Airbus A330 Airworthiness Limitations Section (ALS) Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009 (for Model A330 series airplanes); or Task 274400–00002–1–E, Lubrication of the THSA Ball Nut, of Airbus of A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009 (for Model A340–200 and –300 series airplanes); is acceptable for compliance with requirements of paragraph (j)(1) of this AD.
(i) Airplanes on which Airbus Modifications 52269, 56056, and 55780 have been done in production.
(ii) Model A330 series airplanes on which the actions specified in Airbus Mandatory Service Bulletin A330–27–3137, dated March 20, 2007, Revision 01, dated December 6, 2007, or Revision 02, dated January 18, 2010; and Airbus Mandatory Service Bulletin A330–92–3046, Revision 04, dated July 16, 2010, or Revision 05, dated November 7, 2011; (which are not incorporated by reference in this AD) have been done in service.
(iii) Model A340–200 and –300 series airplanes on which the actions specified in Airbus Mandatory Service Bulletin A340–27–4136, dated March 20, 2007, Revision 01, dated December 6, 2007, or Revision 02, dated February 24, 2010; and Airbus Mandatory Service Bulletin A340–92–4056, Revision 03, dated July 16, 2010; (which are not incorporated by reference in this AD) have been done in service.
For all airplanes, except for those airplanes identified in paragraphs (k)(1), (k)(2), and (k)(3) of this AD: Do the applicable actions specified in paragraphs (k)(4) and (k)(5) of this AD within 700 flight hours after the effective date of this AD, and repeat the inspection thereafter at intervals not to exceed 700 flight hours.
(1) Airplanes on which the actions specified in Airbus Modifications 52269, 56056, and 55780 have been done in production.
(2) Model A330 series airplanes on which Airbus Mandatory Service Bulletin A330–27–3137, dated March 20, 2007, Revision 01, dated December 6, 2007, or Revision 02, dated January 18, 2010; and Airbus Mandatory Service Bulletin A330–92–3046, Revision 04, dated July 16, 2010, or Revision 05, dated November 7, 2011; (which are not incorporated by reference in this AD) have been done in service.
(3) Model A340–200 and –300 series airplanes on which the actions specified in Airbus Mandatory Service Bulletin A340–27–4136, dated March 20, 2007, Revision 01, dated December 6, 2007, or Revision 02, dated February 24, 2010; and Airbus Mandatory Service Bulletin A340–92–4056, Revision 03, dated July 16, 2010; have been done in service.
(4) For airplanes on which the actions specified in Airbus Mandatory Service Bulletin A330–27–3137, dated March 20, 2007, Revision 01, dated December 6, 2007, or Revision 02, dated January 18, 2010 (for Model A330 series airplanes); or Airbus Mandatory Service Bulletin A340–27–4136, dated March 20, 2007, Revision 01, dated December 6, 2007, or Revision 02, dated February 24, 2010 (for Model A340–200 and –300 series airplanes); (which are not incorporated by reference in this AD) have been done: Do the applicable detailed inspection of the ball screw assembly for integrity of the primary and secondary load path and check the checkable shear pins (CSP), and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3102, Revision 08, excluding Appendix 1, dated December 6, 2007 (for Model A330 series airplanes); or Airbus Mandatory Service Bulletin A340–27–4107, Revision 08, excluding Appendix 1, dated December 6, 2007 (for Model A340–200 and –300 series airplanes); except as required by paragraph (k)(6) of this AD. Do all applicable corrective actions before further flight.
(5) For airplanes on which the actions specified in Airbus Mandatory Service Bulletin A330–27–3137, dated March 20, 2007, Revision 01, dated December 6, 2007, or Revision 02, dated January 18, 2010 (for Model A330 series airplanes); or Airbus Mandatory Service Bulletin A340–27–4136, dated March 20, 2007, Revision 01, dated December 6, 2007, or Revision 02, dated February 24, 2010 (for Model A340–200 and –300 series airplanes); (which are not incorporated by reference in this AD) have not been done: Perform a detailed inspection of the ball screw assembly for integrity of the primary and secondary load path, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330–27–3102, Revision 08, excluding Appendix 1, dated December 6, 2007 (for Model A330 series airplanes); or Airbus Mandatory Service Bulletin A340–27–4107, Revision 08, excluding Appendix 1, dated December 6, 2007 (for Model A340 series airplanes); except as required by paragraph (k)(6) of this AD. Do all applicable corrective actions before further flight.
(6) Where Airbus Mandatory Service Bulletin A330–27–3102, Revision 08, excluding Appendix 1, dated December 6, 2007 (for Model A330 series airplanes); or Airbus Mandatory Service Bulletin A340–27–4107, Revision 08, excluding Appendix 1, dated December 6, 2007 (for Model A340 series airplanes); specify contacting Airbus for a damage assessment, this AD requires contacting the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent); for required actions before further flight, and doing the specified actions within the times given.
For airplanes identified in paragraph (k) of this AD, if one of the “PRIM X PITCH FAULT” or “STAB CTL FAULT” messages is displayed on the ECAM associated with the “PITCH TRIM ACTR (1CS)” maintenance message, do the applicable detailed inspection and all applicable corrective actions specified in paragraph (k)(4) or (k)(5) of this AD, as applicable to airplane configuration, before further flight after the message is displayed on the ECAM.
For airplanes having THSA P/N 47147–500, 47147–700, 47172–300, 47172–500, or 47172–510, accomplishing the repetitive actions specified in paragraph (m)(1) or (m)(2) of this AD, as applicable, is acceptable for compliance with the corresponding actions specified in paragraph (k)(4) or (k)(5) of this AD, as applicable.
(1) For Model A330 series airplanes, the repetitive actions specified in paragraphs (m)(1)(i) through (m)(1)(viii) of this AD.
(i) Task 274400–00001–1–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
(ii) Task 274400–00001–1–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
(iii) Task 274400–00001–2–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
(iv) Task 274400–00001–2–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
(v) Task 274400–00001–3–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
(vi) Task 274400–00001–3–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
(vii) Task 274400–00001–4–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
(viii) Task 274400–00001–4–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
(2) For Model A340–200 and -300 series airplanes, the repetitive actions specified in paragraphs (m)(2)(i) through (m)(2)(viii) of this AD.
(i) Task 274400–00001–1–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
(ii) Task 274400–00001–1–E of Airbus A340 ALS Part 4—Ageing Systems
(iii) Task 274400–00001–2–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
(iv) Task 274400–00001–2–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
(v) Task 274400–00001–3–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
(vi) Task 274400–00001–3–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
(vii) Task 274400–00001–4–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
(viii) Task 274400–00001–4–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
(1) This paragraph provides credit for the inspections and corrective actions required by paragraph (k) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (n)(1)(i) through (n)(1)(vi) of this AD (which is not incorporated by reference in this AD).
(i) Airbus Service Bulletin A330–27–3102, Revision 02, excluding Appendix 01, dated November 7, 2002.
(ii) Airbus Service Bulletin A330–27–3102, Revision 03, excluding Appendix 01, dated June 20, 2003.
(iii) Airbus Service Bulletin A330–27–3102, Revision 04, excluding Appendix 01, dated December 8, 2003.
(iv) Airbus Mandatory Service Bulletin A330–27–3102, Revision 05, excluding Appendix 01, dated July 7, 2004.
(v) Airbus Mandatory Service Bulletin A330–27–3102, Revision 06, excluding Appendix 01, dated December 16, 2005.
(vi) Airbus Mandatory Service Bulletin A330–27–3102, Revision 07, excluding Appendix 01, dated March 16, 2007.
(2) This paragraph provides credit for the inspections and corrective actions required by paragraph (k) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (n)(2)(i) through (n)(2)(vi) of this AD (which is not incorporated by reference in this AD).
(i) Airbus Service Bulletin A340–27–4107, Revision 02, excluding Appendix 01, dated September 23, 2002.
(ii) Airbus Service Bulletin A340–27–4107, Revision 03, excluding Appendix 01, dated December 4, 2002.
(iii) Airbus Mandatory Service Bulletin A340–27–4107, Revision 04, excluding Appendix 01, dated June 20, 2003.
(iv) Airbus Mandatory Service Bulletin A340–27–4107, Revision 05, excluding Appendix 01, dated December 8, 2003.
(v) Airbus Mandatory Service Bulletin A340–27–4107, Revision 06, excluding Appendix 01, dated December 16, 2005.
(vi) Airbus Mandatory Service Bulletin A340–27–4107, Revision 07, excluding Appendix 01, dated March 16, 2007.
(3) This paragraph provides credit for the actions specified in paragraph (j) of this AD, if those actions were performed before the effective date of this AD using Task 27.40.00/02, Lubrication of THS Actuator Ball Screw Nut, of Airbus A330 MRBR, Revision 11, dated June 18, 2008 (which is not incorporated by reference in this AD).
(4) This paragraph provides credit for the actions specified in paragraph (j) of this AD, if those actions were performed before the effective date of this AD using Task 27.40.00/02, Lubrication of THS Actuator Ball Screw Nut, of Airbus A340 MRBR, Revision 11, dated June 18, 2008 (which is not incorporated by reference in this AD).
The following provisions also apply to this AD:
(1) Refer to MCAI EASA Airworthiness Directive 2010–0192 (corrected), dated October 11, 2010; EASA Airworthiness Directive 2010–0193 (corrected), dated October 11, 2010; and the following service information; for related information
(i) Airbus Mandatory Service Bulletin A330–27–3102, Revision 08, excluding Appendix 1, dated December 6, 2007.
(ii) Airbus Mandatory Service Bulletin A340–27–4107, Revision 08, excluding Appendix 1, dated December 6, 2007.
(iii) Airbus Service Bulletin A330–27–3007, Revision 01, dated September 18, 1996.
(iv) Airbus Service Bulletin A330–27–3015, dated June 7, 1995.
(v) Airbus Service Bulletin A330–27–3047, Revision 01, dated November 26, 1997.
(vi) Airbus Service Bulletin A330–27–3050, dated November 15, 1996.
(vii) Airbus Service Bulletin A330–27–3052, Revision 03, dated December 5, 2001.
(viii) Airbus Service Bulletin A330–27–3085, Revision 02, dated September 5, 2002.
(ix) Airbus Service Bulletin A330–27–3093, Revision 01, dated September 5, 2002.
(x) Airbus Service Bulletin A330–55–3020, Revision 01, dated October 21, 1998.
(xi) Airbus Service Bulletin A340–27–4007, dated April 7, 1994.
(xii) Airbus Service Bulletin A340–27–4025, dated June 7, 1995.
(xiii) Airbus Service Bulletin A340–27–4054, Revision 01, dated November 26, 1997.
(xiv) Airbus Service Bulletin A340–27–4057, dated November 15, 1996.
(xv) Airbus Service Bulletin A340–27–4059, Revision 03, dated December 5, 2001.
(xvi) Airbus Service Bulletin A340–27–4089, Revision 02, dated September 5, 2002.
(xvii) Airbus Service Bulletin A340–27–4099, Revision 01, dated September 5, 2002.
(xviii) Airbus Service Bulletin A340–55–4021, Revision 01, October 21, 1998.
(xix) Task 27.40.00/02, Lubrication of THS Actuator Ball Screw Nut, of Airbus A330 MRBR, Revision 12, dated July 1, 2010.
(xx) Task 27.40.00/02, Lubrication of THS Actuator Ball Screw Nut, of Airbus A340 MRBR, Revision 12, dated July 1, 2010.
(xxi) Task 274400–00001–1–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
(xxii) Task 274400–00001–1–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
(xxiii) Task 274400–00001–1–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
(xxiv) Task 274400–00001–1–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
(xxv) Task 274400–00001–2–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
(xxvi) Task 274400–00001–2–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
(xxvii) Task 274400–00001–2–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
(xxviii) Task 274400–00001–2–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
(xxix) Task 274400–00001–3–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
(xxx) Task 274400–00001–3–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
(xxxi) Task 274400–00001–3–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
(xxxii) Task 274400–00001–3–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
(xxxiii) Task 274400–00001–4–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
(xxxiv) Task 274400–00001–4–E of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 03, dated September 9, 2011.
(xxxv) Task 274400–00001–4–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
(xxxvi) Task 274400–00001–4–E of Airbus A340 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated October 12, 2011.
(xxxvii) Task 274400–00002–1–E, Lubrication of the THSA Ball Nut, of Airbus A330 ALS Part 4—Ageing Systems Maintenance, Revision 02, dated December 16, 2009.
(xxxviii) Task 274400–00002–1–E, Lubrication of the THSA Ball Nut, of Airbus of A340 ALS Part 4—Ageing Systems Maintenance, Revision 01, dated December 15, 2009.
(2) For Airbus service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to make five general anchorage areas smaller. It also proposes administrative changes that would rename 33 CFR 110.230, reorganize it by incorporating 33 CFR 110.229, and modify the descriptions of four general anchorages. These changes will clarify to the general public the boundaries and requirements of anchorages, and enhance safety by ensuring good order and predictability within the anchorages of the Captain of the Port (COTP) Puget Sound zone.
Comments and related material must be received by the Coast Guard on or before December 3, 2012. Requests for public meetings must be received by the Coast Guard on or before November 13, 2012.
You may submit comments identified by docket number USCG–2012–0159 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Mr. Mark Ashley, Director, Vessel Traffic Service Puget Sound, Waterways Management Division, Sector Puget Sound, Coast Guard; telephone 206–217–6046, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, 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 at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
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 the
We do not now plan to hold a public meeting. But, you may submit a request for a public meeting by November 13, 2012 using one of the methods specified under
The legal basis for this rule is: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05–1; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define anchorage grounds. The 1976 Puget Sound Area Anchorages rulemaking defined 11 general and explosive anchorages within greater Puget Sound area. These areas are described using geographic points of land and bearings and ranges as the boundaries. This rule proposes to update existing anchorages to describe areas using points of latitude and longitude, which, with the advent of Global Positioning System (GPS), is much more practical and accurate for the mariner. Additionally, changes to shore side infrastructure, safety and security zones, and environmentally sensitive areas have made some of the anchorage boundaries impractical, such that the listed boundaries no longer reflect the actual anchorages as used today. This rule addresses these changes by reducing the size of specified anchorages.
This proposed rule would change the descriptions of the following anchorages to points of latitude and longitude, but does not change their actual area and location:
In addition, we propose to update the following anchorages' datum from NAD 27 to NAD 83: Cherry Point General Anchorage, Bellingham Bay General and Explosives Anchorages, Port Townsend Explosives Anchorages, and Commencement Bay General Anchorage. The datum transposition was done using the National Geodetic Survey's NADCON Program Version 2.11 found at
Finally, the following anchorage areas would remain unchanged: Anacortes General Anchorages, Cap Sante Tug and Barge General Anchorage, and Hat Island Tug and Barge General Anchorage.
This proposed rule would reduce the size of the following anchorages.
The proposed rule would rename 33 CFR 110.230 to “Anchorages, Captain of the Port Puget Sound Zone, WA” to better describe the area which is incorporated by this regulation. Additionally, the proposed rule would incorporate into § 110.230 the non-anchorage area contained in 33 CFR 110.229, and update the coordinates to datum NAD 1983. Having two separate regulations for the same COTP zone creates unnecessary redundancy and confusion that can be eliminated by incorporating all anchorages into one regulation.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order. We do not expect this proposed rule to have significant impact because it is administrative in nature and would not alter current navigational practices on the affected waterway.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.
This proposed rule would affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this portion of Puget Sound, the Strait of Juan de Fuca, and adjoining waters. Because the contemplated changes would be minimal in nature and would not alter current navigational practices on the affected waterway, the proposed rule will not have significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
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. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
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 Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
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. This rule involves administrative changes to an anchorage regulation that either do not change the size of existing anchorage areas, or make some anchorage areas smaller.
We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Anchorage grounds.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows:
1. The authority citation for part 110 continues to read as follows:
33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05–1; Department of Homeland Security Delegation No. 0170.1.
2. Remove § 110.229.
3. Revise § 110.230 to read as follows:
(a)
(1)
(i) This anchorage may only be assigned to vessels experiencing an emergency that requires anchoring. Vessel emergencies include equipment failures, cargo securing, etc. Vessels requiring a customs inspection will not be allowed to anchor in this area.
(ii) [Reserved.]
(2)
(i)
(ii)
(3)
(i)
(ii)
(4)
(5)
(6)
(7)
(i) Smith Cove West General Anchorage. All waters inside the area beginning at latitude 47°38′20.44″ N, longitude 122°24′48.56″ W; thence 207°T to latitude 47°37′51.6″ N, longitude 122°25′10.5″ W; thence 124°T to latitude 47°36′56.2″ N, longitude 122°23′07″ W; thence 000°T to latitude 47°37′59.5″ N, longitude 122°23′07″ W; thence northwest along the shoreline to the point of origin.
(ii)
(iii)
(iv)
(8)
(9)
(10)
(i)
(ii)
(iii)
(11)
(12)
(13)
(14)
(i) No vessel may anchor in this non-anchorage area at any time.
(ii) Dragging, seining, fishing, or other activities which may foul underwater installations within this non-anchorage area are prohibited.
(iii) Vessels may transit this non-anchorage area, but must proceed by the most direct route and without unnecessary delay.
The city of Port Angeles will mark this area with signs on the shoreline visible (during normal daylight) 1 mile to seaward reading, “Do not Anchor in This Area.″
(b) * * *
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the fine particulate matter (PM
Written comments must be received on or before November 1, 2012.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2012–0119 by one of the following methods:
A.
B.
C.
D.
Irene Shandruk, (215) 814–2166, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On July 18, 1997 (62 FR 38652), EPA promulgated the 1997 PM
Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1) of the CAA. In 1999, EPA and state air quality agencies initiated the monitoring process for the 1997 PM
On April 14, 2005, EPA promulgated a supplemental rule amending the agency's initial designations (70 FR 19844), with the same effective date (April 5, 2005) at 70 FR 944. As a result of this supplemental rule, PM
On September 7, 2011 (76 FR 55542), EPA determined that West Virginia had attained the 1997 PM
The 2002 base year emission inventory submitted by WVDEP on May 28, 2009 for the Huntington Area includes emissions estimates that cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. The pollutants that comprise the inventory are nitrogen oxides (NO
Table 1, below, provides a summary of the annual 2002 emissions of NO
The CAA section 172(c)(3) emissions inventory is developed by the incorporation of data from multiple sources. States were required to develop and submit to EPA a triennial emissions inventory according to the Consolidated Emissions Reporting Rule (CERR) for all source categories (i.e., point, area, nonroad mobile and on-road mobile). The review and evaluation of the methods used for the emissions inventory submitted by West Virginia are found in the Technical Support Document dated August 12, 2010, available online at
EPA is proposing to approve the 2002 base year emissions inventory portion of the SIP revision submitted by the State of West Virginia on May 28, 2009 for the Huntington Area. We have made the determination that this action is consistent with section 110 of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, pertaining to the PM
Environmental protection, Air pollution control, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the fine particulate matter (PM
Written comments must be received on or before November 1, 2012.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2010–0077 by one of the following methods:
A.
B.
C.
D.
Irene Shandruk, (215) 814–2166, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On July 18, 1997 (62 FR 38652), EPA promulgated the 1997 PM
Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1) of the CAA. In 1999, EPA and state air quality agencies initiated the monitoring process for the 1997 PM
On April 14, 2005, EPA promulgated a supplemental rule amending the agency's initial designations (70 FR 19844), with the same effective date (April 5, 2005) at 70 FR 944. As a result of this supplemental rule, PM
On November 20, 2009 (74 FR 60199), EPA determined that West Virginia had attained the 1997 PM
The 2002 base year emission inventory submitted by WVDEP on September 9, 2008 for the Parkersburg Area includes emissions estimates that cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. The pollutants that comprise the inventory are nitrogen oxides (NO
Table 1, below, provides a summary of the annual 2002 emissions of NO
The CAA section 172(c)(3) emissions inventory is developed by the incorporation of data from multiple sources. States were required to develop and submit to EPA a triennial emissions inventory according to the Consolidated Emissions Reporting Rule (CERR) for all source categories (i.e., point, area, nonroad mobile and on-road mobile). The review and evaluation of the methods used for the emissions inventory submitted by West Virginia are found in the Technical Support Document dated June 16, 2010, available online at
EPA is proposing to approve the 2002 base year emissions inventory portion of the SIP revision submitted by the State of West Virginia on September 9, 2008 for the Parkersburg Area. We have made the determination that this action is consistent with section 110 of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, pertaining to the PM
Environmental protection, Air pollution control, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to make a determination of attainment regarding the Philadelphia-Wilmington, PA-NJ-DE fine particulate (PM
Written comments must be received on or before November 1, 2012.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2012–0371 by one of the following methods:
A.
B.
C.
D.
If you have questions concerning today's proposed action related to Pennsylvania or Delaware, please contact Emlyn Vélez-Rosa, (215) 814–2038, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
In accordance with section 179(c)(1) of the CAA, 42 U.S.C. 7509(c)(1), and 40 CFR 51.1004(c), EPA is proposing to determine that the Philadelphia Area has attained the 2006 24-hour PM
On September 21, 2006, EPA retained the 1997 annual PM
Many petitioners challenged aspects of EPA's 2006 revisions to the PM
The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the CAA. On November 13, 2009, EPA published designations for the 2006 24-hour PM
On March 29, 2007, EPA issued a detailed implementation rule, codified at 40 CFR part 51, subpart Z, to assist states and tribes with the development of SIPs to demonstrate attainment with
In general, areas violating the NAAQS should meet the basic CAA requirements set forth in section 172. The 2006 24-hour PM
Under section 172(a)(2)(A) of the CAA, an area's attainment date would be the date by which attainment can be achieved as expeditiously as practicable, but no later than 5 years from the date such area was designated nonattainment, except that the Administrator may extend the attainment date to the extent the Administrator determines appropriate, for a period no greater than 10 years from the date of designation as nonattainment. Because the designation of nonattainment areas for the 2006 24-hour PM
Today's proposed rulemaking action determines that the Philadelphia Area has attained the 2006 24-hour PM
EPA previously determined that the PM
EPA has reviewed the quality-assured, quality-controlled, certified ambient air monitoring data recorded in the EPA's Air Quality System (AQS) database for PM
The 24-hour design value determined for the Philadelphia Area is the highest 3-year average of the annual 98th percentile measured at all the monitors in the Area during this time, which meets the criteria to be used for comparison to the 2006 24-hour PM
EPA addresses missing data from monitors not meeting the completeness requirement by applying three different procedures: Collocated substitution test, maximum quarter substitution test (“maximum quarter test”), and EPA's statistical procedure. In the collocated substitution test, data from a collocated monitor at the site are substituted for the missing data. In the maximum quarter test, maximum recorded values are substituted for the missing data. For each substitution test, a 24-hour design value is calculated using the substituted data and then compared to the 2006 24-hour PM
While most of the PM
As shown in Table 1, the Camden Monitor at site 34–007–0003, located in Camden County, was the highest reading monitor during 2008–2010. However, the 24-hour design value from this site reflects incomplete data during most of the 2008–2010 monitoring period due to the monitor's shutdown in September 2008. This monitor only collected data for 3 out of 12 quarters. The last valid 24-hour design value at site 34–007–0003 was 35 µg/m
EPA's review of quality-assured, quality-controlled, certified ambient air monitoring data collected in the Philadelphia Area during 2008–2010 and 2009–2011 indicates that the Area has attained the 2006 24-hour PM
If EPA's proposed determination of attainment based on quality-assured data during 2008–2010 and 2009–2011 is made final, the requirements for the Philadelphia Area to submit an attainment demonstration and associated RACM, RFP plan, contingency measures, and any other planning requirements related to attainment of the 2006 24-hour PM
Finalizing this proposed determination would not constitute a redesignation of the Philadelphia Area to attainment of the 2006 24-hour PM
The action described is a proposed determination regarding the Philadelphia Area's attainment only with respect to the 2006 24-hour PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the fine particulate matter (PM
Written comments must be received on or before November 1, 2012.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2012–0422 by one of the following methods:
A.
B.
C.
D.
Irene Shandruk, (215) 814–2166, or by email at
Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On July 18, 1997 (62 FR 38652), EPA promulgated the 1997 PM
Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1) of the CAA. In 1999, EPA and state air quality agencies initiated the monitoring process for the 1997 PM
On April 14, 2005, EPA promulgated a supplemental rule amending the agency's initial designations (70 FR 19844), with the same effective date (April 5, 2005) at 70 FR 944. As a result of this supplemental rule, PM
On October 11, 2011 (76 FR 62640), EPA determined that West Virginia had attained the 1997 PM
The 2002 base year emission inventory submitted by WVDEP on November 4, 2009 for the Charleston Area includes emissions estimates that cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. The pollutants that comprise the inventory are nitrogen oxides (NO
Table 1, below, provides a summary of the annual 2002 emissions of NO
The CAA section 172(c)(3) emissions inventory is developed by the incorporation of data from multiple sources. States were required to develop and submit to EPA a triennial emissions inventory according to the Consolidated Emissions Reporting Rule (CERR) for all source categories (i.e., point, area, nonroad mobile and on-road mobile). The review and evaluation of the methods used for the emissions inventory submitted by West Virginia are found in the Technical Support Document dated August 12, 2010, available online at
EPA is proposing to approve the 2002 base year emissions inventory portion of the SIP revision submitted by the State of West Virginia on November 4, 2009 for the Charleston Area. We have made the determination that this action is consistent with section 110 of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, pertaining to the PM
Environmental protection, Air pollution control, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to amend its Vessel Inspection Alternatives regulations to add the International Energy Efficiency (IEE) Certificate to the list of certificates that a recognized classification society may issue on behalf of the Coast Guard. We make this proposal because Annex VI of the International Convention for the Prevention of Pollution by Ships, 1973, as modified by the Protocol of 1978, has been amended to address energy efficiency for ships, and these amendments call for the issuance of IEE Certificates starting January 1, 2013. This proposed rule would enable recognized classification societies to apply to the Coast Guard to issue IEE Certificates to vessel owners and help to ensure that the demand for IEE Certificates is met.
Comments and related material must either be submitted to our online docket via
You may submit comments identified by docket number USCG–2012–0861 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Mr. Wayne Lundy, Systems Engineering Division, Coast Guard; telephone 202–372–1379, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG–2012–0861), 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 or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone 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 to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
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 the
We do not plan to hold a public meeting. But you may submit a request for one to the docket using one of the methods specified under
The Act to Prevent Pollution from Ships (APPS), 33 U.S.C.
On July 15, 2011, in resolution MEPC.203(62), the International Maritime Organization's (IMO) Marine Environment Protection Committee (MEPC) adopted amendments to MARPOL Annex VI. Those amendments, which were accepted July 1, 2012, and come into force January 1, 2013, contain energy efficiency provisions for new and existing ships. These amended regulations call for the issuance of an International Energy Efficiency (IEE) Certificate to document compliance with Annex VI's new Chapter 4, Regulations on Energy Efficiency for Ships. See amended Annex VI Regulations 5.4 and 6.4. Since the mid-1990s, under authority of 46 U.S.C. 3103, 3306, 3316, and 3703, and
Recognized classification societies assist the Coast Guard and help to ensure that U.S.-flagged ships that qualify for an international certificate are able to obtain it promptly. As we stated in 1996, to avoid duplication of effort between the Coast Guard and classification societies that results in extra costs to U.S. vessel owners, it is best to take full advantage of inspections done by classification societies:
Starting January 2013, U.S.-flagged ships that are 400 gross tonnage or more as measured under 46 U.S.C. 14302, Convention Measurement System, (hereafter 400 GT ITC or more) may be subject to detention or delay in foreign ports if they do not have an IEE certificate to document compliance with Annex VI. See amended Annex VI Regulation 19.
Section 8.320 of 46 CFR allows the Coast Guard to delegate issuance of an international convention certificate to a recognized classification society only if the certificate is listed in § 8.320(b). The IEE Certificate is not currently listed in § 8.320(b).
Our proposed amendment to 46 CFR 8.320(b) would add the International Energy Efficiency (IEE) Certificate to the list of certificates that may be issued by a recognized classification society on behalf of the Coast Guard. This proposed change would initiate the process that would allow recognized classification societies to issue IEE Certificates on behalf of the Coast Guard. Any recognized classification society that wishes to issue IEE Certificates on the Coast Guard's behalf would be required to request a delegation of authority from the Coast Guard pursuant to the procedures in 46 CFR part 8. See 46 CFR 8.230 for criteria that must be met to become a recognized classification society. In response, the Coast Guard would evaluate the application, and review the applicant's relevant class rules and classification society procedures, before deciding whether to issue a delegation of authority to a recognized classification society. As noted above, we propose this amendment to § 8.320(b) to allow the Coast Guard to enlist the assistance of recognized classification societies to ensure that U.S.-flagged ships that are 400 GT ITC or more that engage in one or more voyages to ports or offshore terminals under the jurisdiction of other contracting parties to the MARPOL Protocol will be able to promptly obtain an IEE certificate.
Also, the Presidential Memorandum of May 20, 2009 titled “Preemption,” states that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” The memorandum also required agencies to include preemption provisions in the codified regulations when regulatory preambles discussed its intention to preempt State law through the regulation. Furthermore, it directed that these preemption provisions must be justified under the legal principles governing preemption, including those outlined in Executive Order (EO) 13132 on Federalism. Consistent with this May 2009 Presidential Memorandum, EO 13132, and our Federalism discussion below, we have proposed inserting a specific statement regarding preemption in the purpose section, § 8.300, of Part 8's subpart C, International Convention Certificate Issuance, and renaming that section heading “Purpose and Preemption.”
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this proposed rule has not been reviewed by the Office of Management and Budget. A draft regulatory assessment follows:
Under the authority of 33 U.S.C. 1903, 1904, and 46 U.S.C. 3103, 3306, 3316, and 3703, the Coast Guard proposes to amend 46 CFR 8.320, to enable the Coast Guard to delegate the activity of issuing IEE Certificates to a recognized classification society which would act on behalf of the Coast Guard. The intent of this proposed rule is only to allow for the delegation of IEE Certification to recognized class societies and thus create options for industry in obtaining these certificates; it does not impose mandatory actions on the U.S. maritime industry.
Although requesting the delegation of authority to conduct IEE surveys, inspections, and certifications is voluntary, classification societies may incur minor costs associated with this process. The Coast Guard may incur costs associated with the evaluation of these requests and the issuance of delegations of authority to recognized classification societies.
The Coast Guard estimates that this proposed rule would potentially affect seven classification societies which may request a delegation of authority to issue IEE Certificates. The Coast Guard used an Office of Management and Budget (OMB)-approved collection of information (1625–0041) to estimate the costs and burden.
The Coast Guard estimates that it will take classification society employees
In addition, the Coast Guard estimates that it will incur a one-time cost to review and approve the requests for delegation. Based on the OMB-approved collections of information discussed above, the Coast Guard estimates that it will take about 5 hours to review, approve, and issue an order to delegate authority, at an average cost of $360 per event (3.5 hours for reviewing/approving and 1.5 hours for issuing at $72 per hour for a lieutenant (O–3)). The Coast Guard estimates a total one-time Government cost of $2,500 (rounded) based on OMB-approved collection of information estimates.
The Coast Guard estimates the total one-time cost of this proposed rule to be approximately $5,500 (non-discounted) for classification societies and the Government combined.
This proposed rule may result in several benefits to the U.S. maritime industry. First, it may result in a reduction of potential wait time for IEE Certificates. In the absence of delegation of authority to classification societies, vessel owners and operators may experience delays while the Coast Guard processes and issues IEE Certificates. Combined with the Coast Guard's other activities and responsibilities, such a process may result in an unnecessary and burdensome wait for vessels. The Coast Guard also might have to redirect resources that could be used for other missions, resulting in a less efficient use of Government resources. Finally, this proposed rule may mitigate potential consequences to U.S.-flagged vessels due to non-compliance with the Convention, including costly vessel detentions in foreign ports.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this proposed rule will, if promulgated, 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.
Affected classification societies are classified under one of the following North American Industry Classification System codes for water transportation: 488330—Navigational Services to Shipping, 488390—Other Support Activities for Water Transportation, or 541611—Administrative Management and General Management Consulting Services.
The only predominate U.S. classification society is the American Bureau of Shipping (ABS). ABS is a privately owned non-profit organization that is dominant in its field (Source: 2011 Hoovers,
The Coast Guard expects that this proposed rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. As described in section V.A. of this preamble, “Regulatory Planning and Review,” the anticipated cost of this proposed rule, per class society, would be less than $500. This proposed rule is not mandatory, and classification societies, regardless of size, would choose to participate only if the benefits are greater than the costs.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. 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 to the Docket Management Facility at the address under
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 proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Wayne Lundy, Systems Engineering Division, Coast Guard, telephone 202–372–1379 or email
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520) because the Coast Guard expects that the number of applications would be fewer than 10 in any given year.
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
As noted above, APPS implements the MARPOL Protocol. APPS also directs the Secretary to “designate those persons authorized to issue on behalf of the United States the certificates required by the MARPOL Protocol.” 33 U.S.C. 1904. By enacting this specific provision, it was the intent of Congress to give the Coast Guard, as delegated by the Secretary, the exclusive authority to regulate within this field. Therefore, we have determined that this rule 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 expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under
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 a risk to safety that might disproportionately affect children.
This proposed rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Tribal governments, on the relationship between the Federal Government and Tribal governments, or on the distribution of power and responsibilities between the Federal Government and Tribal governments.
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, supplemented by Executive Order 13563, 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 (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This proposed rule involves the delegation of authority, the inspection and documentation of vessels, and congressionally-mandated regulations designed to improve or protect the environment.
This action falls under section 2.B.2, figure 2–1, paragraphs (34)(b) and (d), of the Instruction, and under section 6(b) of the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (67 FR 48243, July 23, 2002). We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Administrative practice and procedure, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Vessels.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 46 CFR part 8 as follows:
1. The authority citation for part 8 is revised to read as follows:
33 U.S.C. 1903, 1904, 3803 and 3821; 46 U.S.C. 3103, 3306, 3316, and 3703; Department of Homeland Security Delegation No. 0170.1 and Aug. 8, 2011 Delegation of Authority, Anti-Fouling Systems.
2. Revise § 8.300 to read as follows:
This subpart establishes options for vessel owners and operators to obtain required international convention certification through means other than those prescribed elsewhere in this chapter. The regulations in this subpart have preemptive effect over any State or local regulation within the same field.
3. Amend § 8.320 as follows:
a. In paragraph (b)(12), remove the word “and”;
b. In paragraph (b)(13), remove the period at the end of the sentence and add, in its place, the text “; and”; and
c. Add paragraph (b)(14) to read as follows:
(b) * * *
(14) MARPOL 73/78 International Energy Efficiency Certificate.
Forest Service, USDA.
Notice of availability.
In accordance with Section 3(b) of the Wild and Scenic Rivers Act, the USDA Forest Service, Washington Office, is transmitting the final amended boundary of the White Salmon Wild and Scenic River “Lower Segment” to Congress.
Information may be obtained by contacting the following office: Columbia River Gorge National Scenic Area, 902 Wasco Avenue, Suite 200, Hood River, OR 97031–3117, (541) 308–1700.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The White Salmon Wild and Scenic River “Lower Segment” boundary is available for review at the following offices: USDA Forest Service, Recreation, Yates Building, 14th and Independence Avenues SW., Washington, DC 20024; USDA Forest Service, Pacific Northwest Region, 333 SW. First Avenue, Portland, Oregon 97208–3623.
The Columbia River Gorge National Scenic Area Act (Pub. L. 99–663) of November 17, 1986, designated the White Salmon River, Washington, as a Wild and Scenic River, to be administered by the Secretary of Agriculture. As specified by law, the boundary will not be effective until ninety (90) days after Congress receives the transmittal.
Forest Service, USDA.
Notice.
Deciding Officers in the Eastern Region will publish notice of decisions subject to administrative appeal in the legal notice section of the newspapers listed in the Supplementary Information section of this notice. The public shall be advised through
Use of these newspapers for purposes of publishing legal notice of decisions subject to appeal and notices of proposed actions shall begin on or after the date of this publication.
Deciding Officers in the Eastern Region will give legal notice of decisions subject to appeal under 36 CFR part 217 and 36 CFR 215 in the following newspapers which are listed by Forest Service administrative unit. The timeframe for comment on a proposed action shall be based on the date of publication of the notice of the proposed action in the principal newspaper. The timeframe for appeals shall be based on the date of publication of the legal notice of the decision in the principal newspaper for both 36 CFR parts 215 and 217.
Where more than one newspaper is listed for any unit, the first newspaper listed is the principal newspaper that will be utilized for publishing the legal notices of decisions. Additional newspapers listed for a particular unit are those newspapers the Deciding Officer expects to use for purposes of providing additional notice. The timeframe for appeal shall be based on the date of publication of the legal notice of the decision in the principal newspaper. The following newspapers will be used to provide notice.
Patricia Rowell, 414–297–3439.
On August 3, 2012, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the McAllen Foreign Trade Zone, Inc., grantee of FTZ 12, requesting subzone status subject to the existing activation limit of FTZ 12, on behalf of TST NA TRIM, LLC, in Hidalgo, Texas.
The application was processed in accordance with the FTZ Act and Regulations, including notice in the
Import Administration, International Trade Administration, Department of Commerce.
On January 22, 2008, the Department of Commerce (the Department) signed the current suspension agreement on fresh tomatoes with growers/exporters of Mexican tomatoes accounting for substantially all (
Effective October 2, 2012.
Judith Wey Rudman, Julie Santoboni, or Anne D'Alauro, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482–0192, (202) 482–3063, or (202) 482–4830, respectively.
On August 21, 2012, the Department published a notice of initiation of changed circumstances review to examine the petitioners' request to terminate the suspended investigation.
On September 4, 2012, we received comments from the Florida Tomato Exchange (FTE) and the Florida Tomato Growers Exchange (FTGE), Village Farms, Windset Farms and Houwelings Nurseries Oxnard Inc. (collectively, “domestic producers”); CAADES Sinaloa, A.C., Consejo Agricola de Baja California, A.C., Asociacion Mexicana de Horticultura Protegida, A.C., Union Agricola Regional de Sonora Productores de Hortalizas Frutas y Legtunbres, and Confederacion Nacional de Productores de Hortalizas, (collectively, “Mexican tomato growers/exporters”); San Vincente Camalu S.P.R. de R.I.; NatureSweet Ltd.; McEntire Produce; the Fresh Produce Association of the Americas; Wal-Mart; Grant County Foods, LLC; the Government of Mexico; and the Texas International Produce Association. For additional background information, please see “Decision Memorandum: Preliminary Results of Changed Circumstances Review and Intent to Terminate the Suspended Investigation” (Preliminary Decision Memorandum) from Lynn Fischer Fox, Deputy Assistant Secretary for Policy and Negotiations, to Paul Piquado, Assistant Secretary for Import Administration, dated concurrently with these results and hereby adopted by this notice.
The merchandise subject to the suspended investigation is all fresh or chilled tomatoes (fresh tomatoes) which have Mexico as their origin, except for those tomatoes which are for processing. The merchandise subject to the suspended investigation is currently classified under the following subheadings of the Harmonized Tariff Schedules of the United States (HTSUS), according to the season of importation: 0702 and 9906.07.01 through 9906.07.09. Although the HTSUS numbers are provided for convenience and customs purposes, the written description of the scope of the suspended investigation, available at
When examining the domestic industry's interest in an order or suspended investigation, both the Tariff Act of 1930, as amended (the Act), and the Department's regulations require that “substantially all” domestic producers express a lack of interest in the order or suspension agreement for revocation of an order or termination of a suspended investigation.
On September 4, 2012, the domestic producers expressing a lack of interest in continuing the suspended investigation provided information regarding the percentage of domestic production that they represent. The domestic producers submitted signed declarations from 80 U.S. tomato producers accounting for slightly over 90 percent of U.S. production in 2011, based on information from the U.S. Department of Agriculture's Economic Research Service “Vegetables and Pulses Yearbook Data” (Yearbook). In their September 4, 2012, comments, the Mexican tomato growers/exporters argued that the USDA data historically used by the petitioners does not capture total U.S. fresh tomato production. We have considered the arguments raised by interested parties and find that the USDA Yearbook is an objective and reliable source for 2011 U.S. tomato production for purposes of determining industry support in these preliminary results. While we recognize that there are limitations with the USDA data, as discussed in the Preliminary Decision Memorandum, we do not find that these limitations are sufficiently significant as to preclude us from using it to calculate industry support in this instance.
We have considered the information provided by the domestic producers and the September 4, 2012, comments of interested parties and find that, for purposes of these preliminary results, the domestic producers expressing a lack of interest in the suspended investigation account for substantially all,
In light of the above, the Department is preliminarily notifying the public of its intent to terminate the suspended investigation on fresh tomatoes from Mexico.
The Department will consider new factual information from interested parties submitted on the record within 15 days of publication of this notice in the
Interested parties are invited to comment on the preliminary results of this review. The Department will consider case briefs filed by interested parties within 30 days after the date of publication of this notice in the
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, filed electronically using Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). An electronically filed document requesting a hearing must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Time within 30 days after the date of publication of this notice.
The Department will issue the final results of this changed circumstances review, which will include the results of its analysis raised in any such written comments, as soon as is practicable, but not later than 270 days after the date on which this review was initiated.
If the suspended investigation is terminated in the final results of this review, the suspension agreement will also terminate, effective on the date of publication of the notice of final results of the changed circumstances review in the
These preliminary results of review and notice are in accordance with sections 751(b) of the Act and 19 CFR 351.216, 351.221(c)(3), and 351.222.
Import Administration, International Trade Administration, Department of Commerce.
Patrick Edwards or Angelica Mendoza, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, at (202) 482–8029 or (202) 482–3019, respectively.
In response to a request by the American Honey Producers Association (AHPA) and the Sioux Honey Association (SHA), the petitioning parties in the original less-than-fair-value investigation (collectively, petitioners), the Department of Commerce (the Department) is initiating changed circumstances reviews of the antidumping (AD) and countervailing (CVD) duty orders on honey from Argentina. The domestic producers have expressed no further interest in the relief provided by the AD and CVD orders. Interested parties are invited to comment on this notice of initiation.
On December 10, 2001, the Department published the antidumping and countervailing duty orders on honey from Argentina.
Based on a review of petitioners' July 24, 2012, CCR Request, we requested that petitioners resubmit its filing to provide supplemental information and data regarding domestic U.S. honey production. Accordingly, petitioners provided the requested information on August 22, 2012.
The merchandise covered by the orders is honey from Argentina. The products covered are natural honey, artificial honey containing more than 50 percent natural honey by weight, preparations of natural honey containing more than 50 percent natural honey by weight, and flavored honey. The subject merchandise includes all grades and colors of honey whether in liquid, creamed, comb, cut comb, or chunk form, and whether packaged for retail or in bulk form. The merchandise is currently classifiable under subheadings 0409.00.00, 1702.90.90, and 2106.90.99 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are
Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), the Department will conduct a changed circumstances review upon receipt of a request from an interested party or receipt of information concerning an antidumping or countervailing duty order which shows changed circumstances sufficient to warrant a review of the order.
Based on the information petitioners provided in their CCR Request and Supplemental CCR Request, the Department has determined that changed circumstances sufficient to warrant the reviews exist.
In accordance with section 751(b) of the Act and 19 CFR 351.216, 351.221, and 351.222, based on an affirmative statement of no interest by the domestic parties in continuing the AD and CVD orders with respect to honey from Argentina, as described above, we are initiating these changed circumstances administrative reviews.
If, as a result of these reviews, we revoke the
Interested parties are invited to comment on the initiation of these changed circumstances reviews. Parties who submit argument in these proceedings are requested to submit with the argument (1) a statement of the issue, and (2) a brief summary of the argument. All written comments may be submitted by interested parties not later than 5 p.m. Eastern Standard Time within 14 days after the date of publication of this notice in accordance with 19 CFR 351.303, and filed electronically using Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS).
The Department will publish in the
This notice of initiation is in accordance with section 751(b)(1) of the Act, 19 CFR 351.216(b) and (d), and 19 CFR 351.221(b)(1).
National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of Membership of the NOAA Performance Review Board.
In accordance with 5 U.S.C. 4314(c)(4), NOAA announces the appointment of members who will serve on the NOAA Performance Review Board (PRB). The NOAA PRB is responsible for reviewing performance appraisals and ratings of Senior Executive Service Professional members and making written recommendations to the appointing authority on retention and compensation matters, including performance-based pay adjustments, awarding of bonuses, and reviewing recommendations for potential Presidential Rank Award nominees. The appointment of new members to the NOAA PRB will be for a period of two (2) years.
Omar Williams, Executive Resources Program Manager, Workforce Management Office, NOAA, 1305 East-West Highway, Silver Spring, Maryland 20910, (301) 713–6301.
The names and positions of the members for the 2012 NOAA PRB are set forth below:
Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
Notice of Approval of the Rookery Bay, Florida and Kachemak Bay, Alaska National Estuarine Research Reserve Management Plan Revisions.
Notice is hereby given that the Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce approves the Rookery Bay, Florida and the Kachemak Bay, Alaska National Estuarine Research Reserve Management Plan Revisions. The revised management plans outline the administrative structure; the research, education, training, and stewardship goals of the reserve; and the plans for future land acquisition and facility development to support reserve operations.
The Rookery Bay Reserve takes an integrated approach to management, linking research, education, training and stewardship functions to address high priority issues within the 110,000 acre Reserve including land use changes affecting freshwater inflow, loss of native biodiversity, lack of public awareness and community involvement in stewardship, incompatible use by visitors, and ecological impacts of catastrophic change events. The Reserve's Environmental Learning Center provides excellent visitor education experiences and a connecting pedestrian bridge connects visitors to a boardwalk and interpretive trails.
The Kachemak Bay Reserve takes an integrated approach to management by linking research, education, and training functions within the 372,000 acre Reserve to address high priority issues including climate change and harvested species, such as salmon and shellfish. The Reserve will continue research on coastal dynamics, monitoring of invasive species and harmful algal blooms, and will transfer information to coastal decision makers.
The Rookery Bay, Florida Reserve Management Plan can be found at
Erica Seiden at (301) 563–1172 or Laurie McGilvray at (301) 563–1158 of NOAA's National Ocean Service, Estuarine Reserves Division, 1305 East-West Highway, N/ORM5, 10th floor, Silver Spring, MD 20910.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Mystic Aquarium, Mystic, Connecticut 06355 [Responsible Party: Stephen Coan], has applied in due form for a permit to collect, import, export, and receive marine mammal parts for scientific research.
Written, telefaxed, or email comments must be received on or before November 1, 2012.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376; and
Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930; phone (978) 281–9328; fax (978) 281–9394.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713–0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Joselyd Garcia-Reyes or Amy Sloan, (301) 427–8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The objective of this application is to support multiple ongoing research programs at the Mystic Aquarium, including studies of diet and nutrition, disease, immune function, environmental stressors, toxicology and health of marine mammals. Mystic Aquarium requests the annual collection, receipt, import and export of samples from 5,000 individual cetaceans and 5,000 individual pinnipeds under NMFS jurisdiction for continued research on these species.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops.
On August 8, 2012, NMFS published a final rule that will require, among other things, Federal Atlantic swordfish, shark, and tunas dealers (except for dealers reporting Atlantic bluefin tuna) to report receipt of Atlantic sharks, swordfish, and bigeye, albacore, yellowfin, and skipjack (BAYS) tunas through one centralized electronic reporting system starting on January 1, 2013. This electronic reporting system will allow dealers to submit Atlantic sharks, swordfish, and BAYS tuna data on a more real-time basis and more efficiently, and will reduce duplicative data submissions from different regions. This notice announces the dates and locations of several training workshops to introduce the new reporting system to HMS dealers. These workshops will be held in the Gulf of Mexico and Atlantic regions and are open to any interested parties.
Training workshops for the new electronic dealer system will be held from October through December 2012. See
Workshops will be held in Barnegat Light, NJ; Ocean Pines, MD; Gulf Shores and Coden, AL; Charleston, SC; Portland, ME; Gloucester, MA; Manteo, NC, and Dickinson, TX. See
Delisse Ortiz or Karyl Brewster-Geisz at (301) 427–8503 (phone); or Jackie Wilson at (240) 338–3936, or (301) 713–1917 (fax); or
Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801
On August 8, 2012 (77 FR 47303), we published a final rule in the
In order to give sufficient time for dealers to adjust to implementation of the new system and the additional requirements, we delayed implementation of the new HMS electronic reporting system for all federally-permitted HMS dealers until January 1, 2013. Additionally, we are conducting outreach to HMS dealers to train them how to use the new system and help ease the transition from the current paper format to the new HMS electronic reporting system. To date, we conducted 11 training workshops in the Caribbean, Gulf of Mexico and Atlantic regions in order to introduce the new reporting system to HMS dealers. In this notice, we announce the date and location for one webinar and nine additional training workshops in the Gulf of Mexico and Atlantic regions in order to continue introducing HMS dealers to the new electronic system. We may announce additional workshops at a future date.
These workshops will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Delisse Ortiz at (301) 425–8503 or Jackie Wilson at (240) 338–3936 at least 7 days prior to the workshop date. The public is reminded that NMFS expects participants at the workshop to conduct themselves appropriately. At the beginning of each workshop, a representative of NMFS will explain the ground rules (e.g., alcohol is prohibited from the hearing room; each attendee will have an opportunity to ask questions; and attendees should not interrupt one another). Attendees are expected to respect the ground rules; if they do not, they will be asked to leave the workshop.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to United Launch Alliance (ULA), to take marine mammals, by Level B harassment, incidental to conducting
Effective September 26, 2012, through September 25, 2013.
To obtain an electronic copy of the authorization, application, and associated Environmental Assessment (EA) and Finding of No Significant Impact (FONSI), write to the previously mentioned address, telephone the contact listed here (see
Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address.
Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 427–8401.
Section 101(a)(5)(D) of the MMPA (MMPA; 16 U.S.C. 1361
Authorization shall be granted for the incidental taking of small numbers of marine mammals if we, NMFS, find that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking; other means of effecting the least practicable adverse impact on the species or stock and its habitat; and requirements pertaining to the mitigation, monitoring and reporting of such takings.
We have defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the Marine Mammal Protection Act established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the Act establishes a 45-day time limit for our review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, we must either issue or deny the authorization and must publish a notice in the
Except with respect to certain activities not applicable here, the Marine Mammal Protection Act defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
We received an application on May 7, 2012, from United Launch Alliance requesting the taking, by Level B harassment only, of small numbers of marine mammals, incidental to conducting
These activities (
Acoustic and visual stimuli generated by the use of heavy equipment during the
We have outlined the purpose of the program in a previous notice for the proposed Authorization (77 FR 38587, June 28, 2012). ULA's proposed activities have not changed between the proposed IHA notice and this final notice announcing the issuance of the Authorization. For a more detailed description of the authorized action, including a discussion of associated noise sources from the harbor operations, refer to the notice of the proposed IHA (77 FR 38587, June 28, 2012) and the application for a more detailed description of the authorized action.
This is ULA's tenth request for an Authorization and they have requested take of Pacific harbor seals; California sea lions; and Northern elephant seals by Level B harassment only. To date, we have issued nine, 1-year, Incidental Harassment Authorizations to them for the same activities from 2002 to 2011, with the last Authorization expiring on June 6, 2012 (76 FR 33721, June 9, 2011).
The activities will take place in or near the VAFB harbor located on the central coast of California at 34°33′ N, 120°36′ W in the northeast Pacific Ocean. The harbor is approximately 2.5 miles (mi) (4.02 kilometers (km)) south of Point Arguello, CA, and approximately 1 mi (1.61 km) south of the nearest marine mammal rookery.
We published a notice of receipt of the ULA application and proposed IHA in the
The marine mammal species most likely to be harassed incidental to conducting
Other cetaceans that have the potential to transit in the vicinity of the Base's harbor include the short-beaked common dolphin (
Acoustic and visual stimuli generated by: The use of heavy equipment during the
The effects of the harbor activities would be limited to short-term startle responses and localized behavioral changes and have the potential to temporarily displace the animals from a haul out site. We would expect the pinnipeds to return to a haulout site within 60 minutes of the disturbance (Allen
None of ULA's operations would occur on pinniped rookeries; therefore, we do not expect mother and pup separation or crushing of pups to occur. For a more detailed discussion of the sound levels produced by the equipment, behavioral reactions of marine mammals to loud noises or looming visual stimuli, and some specific observations of the response of marine mammals to this activity gathered during previous monitoring, we refer the reader to the notice of the proposed IHA (77 FR 38587, June 28, 2012), the application, and associated documents.
We do not anticipate that the proposed operations would result in any temporary or permanent effects on the habitats used by the marine mammals in the proposed area, including the food sources they use (
In order to issue an incidental take authorization under section 101(a)(5)(D) of the Marine Mammal Protection Act, we must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
ULA has based the mitigation measures described herein, to be implemented for harbor operations, on the following:
(1) Protocols used during previous operations as required by us; and
(2) Previous Authorization applications and Authorizations issued by us.
To reduce the potential for disturbance from visual and acoustic stimuli associated with the activities,
(1) If activities occur during nighttime hours, United Launch Alliance will turn on lighting equipment before dusk. The lights would remain on for the entire night to avoid startling pinnipeds.
(2) Initiate operations before dusk.
(3) Keep construction noises at a constant level (
(4) If activities cease for longer than 30 minutes and pinnipeds are in the area, United Launch Alliance would initiate a gradual start-up of activities to ensure a gradual increase in noise levels.
(5) A qualified marine mammal observer would visually monitor the harbor seals on the beach adjacent to the harbor and on rocks for any flushing or other behaviors as a result of United Launch Alliance's activities (see Proposed Monitoring).
(6) The
(7) As United Launch Alliance explores alternate dredge methods, the dredge contractor may introduce quieter techniques and equipment.
We have carefully evaluated the applicant's proposed mitigation measures and have considered a range of other measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
(1) the manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
(2) the proven or likely efficacy of the specific measure to minimize impacts as planned; and
(3) the practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by us or recommended by the public, we have determined that the mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
ULA will sponsor a marine mammal monitor during the present project, in order to implement the mitigation measures thus satisfying the monitoring requirements of the IHA. ULA's monitoring activities will consist of:
(1) Designating a qualified and biologically trained observer monitoring the area for pinnipeds during all harbor activities. During nighttime activities, the monitor would use a night vision scope.
(2) Conducting baseline observation of pinnipeds in the project area prior to initiating project activities.
(3) Conducting and recording observations on pinnipeds in the vicinity of the harbor for the duration of the activity occurring when tides are low enough (less than or equal to 2 ft (0.61 m) for pinnipeds to haul out.
(4) Conducting post-construction observations of pinniped haul-outs in the project area to determine whether animals disturbed by the project activities return to the haul-out.
United Launch Alliance will notify us two weeks prior to initiation of each activity. After the completion of each activity, they will submit a draft final monitoring report to us within 120 days to the Director of the Office of Protected Resources at our headquarters. If United Launch Alliance receives no comments from us on the draft Final Monitoring Report, we would consider the draft Final Monitoring Report to be the Final Monitoring Report.
The final report would provide dates, times, durations, and locations of specific activities, details of pinniped behavioral observations, and estimates of numbers of affected pinnipeds and impacts (behavioral or other). In addition, the report would include information on the weather, tidal state, horizontal visibility, and composition (species, gender, and age class) and locations of haul-out group(s).
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization (if issued), such as an injury (Level A harassment), serious injury or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
United Launch Alliance shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with them to determine what is necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act compliance. They may not resume their activities until notified by us via letter, email, or telephone.
In the event that United Launch Alliance discovers an injured or dead marine mammal, and the observer determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that United Launch Alliance discovers an injured or dead marine mammal, and the observer determines that the injury or death is not associated with or related to the authorized activities (
Except with respect to certain activities not pertinent here, the Marine Mammal Protection Act defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
We anticipate take by Level B harassment only as a result of the harbor maintenance and
For this IHA, NMFS has authorized the take of 1,161 Pacific harbor seals, 86 California sea lions, and 43 northern elephant seals. Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area due to wave inundation of the haulout area, we expects no injury, serious injury, or mortality to occur, and no takes by injury or mortality are authorized.
We have defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, we consider:
(1) The number of anticipated injuries, serious injuries, or mortalities;
(2) The number, nature, and intensity, and duration of Level B harassment (all relatively limited); and
(3) The context in which the takes occur (
(4) The status of stock or species of marine mammals (
(5) Impacts on habitat affecting rates of recruitment/survival; and
(6) The effectiveness of monitoring and mitigation measures.
As mentioned previously, we estimate that three species of marine mammals could be potentially affected by Level B harassment over the course of the Authorization. For each species, these numbers are small relative to the population size. These incidental harassment numbers represent 0.03 percent of the U.S. stock of California sea lion, 3.8 percent of the California stock of Pacific harbor seal, and 0.03 percent of the California breeding stock of northern elephant seal.
For reasons stated previously in this document, United Launch Alliance's specified activities are not likely to cause long-term behavioral disturbance, abandonment of the haulout area, serious injury, or mortality because:
(1) The effects of the harbor activities are expected to be limited to short-term startle responses and localized behavioral changes. Minor and brief responses, such as short-duration startle or alert reactions, are not likely to constitute disruption of behavioral patterns, such as migration, nursing, breeding, feeding, or sheltering.
(2) The likelihood that marine mammal detection by trained, visual observers is high at close proximity the harbor;
(3)
(4) The relatively slow operational speed of the
(5) There is no potential for large-scale movements leading to serious injury or mortality near the south Base harbor because, historically, the number of harbor seals hauled out near the site is less than 30 individuals;
(6) The specified activities do not occur near rookeries;
(7) The availability of alternate areas near the harbor for pinnipeds to avoid the resultant noise from the maintenance and vessel operations. Results from previous monitoring reports that support our conclusions that the pinnipeds returned to the haul-out site during periods of low tide after the disturbance and do not permanently abandon a haul-out site during the conduct of harbor maintenance and
We do not anticipate that any injuries, serious injuries, or mortalities would occur as a result of ULA's proposed activities, and we do not propose to authorize injury, serious injury or mortality. These species may exhibit behavioral modifications, including temporarily vacating the area during the proposed harbor maintenance and
We have determined, provided that ULA carries out the previously described mitigation and monitoring measures, that the impact of conducting harbor activities related to the Delta IV/Evolved Expendable Launch Vehicle at Vandenberg Air Force Base, CA, September 2012, through September 2013, may result, at worst, in a temporary modification in behavior and/or low-level physiological effects (Level B harassment) of small numbers of certain species of marine mammals.
Based on the analysis contained here of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, have determined that the total taking from the proposed activities will have a negligible impact on the affected species or stocks; and that impacts to affected species or stocks of marine mammals would be mitigated to the lowest level practicable.
Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses Section 101(a)(5)(D) of the Marine Mammal Protection Act also requires us to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There are no relevant subsistence uses of marine mammals in the study area (northeastern Pacific Ocean) that implicate section 101(a)(5)(D) of the Marine Mammal Protection Act.
This action will not affect species listed under the Endangered Species Act that are under our jurisdiction. The U.S. Fish and Wildlife Service issued a Biological Opinion in August 2001, which concluded that the program was not likely to jeopardize the continued existence of the southern sea otter. The activities covered by our Incidental Harassment Authorization are analyzed in that Biological Opinion, and this Authorization does not modify the action in a manner not previously analyzed.
In 2001, the U.S. Air Force (Air Force) prepared an Environmental Assessment for Harbor Activities Associated with the Delta IV Program at Vandenberg Air Force Base. In 2005, we prepared an Environmental Assessment augmenting the information contained in the Air Force's EA and issued a Finding of No Significant Impact on the issuance of an Incidental Harassment Authorization for United Launch Alliance's harbor activities in accordance with section 6.01 of the NOAA Administrative Order 216–6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999). United Launch Alliance's proposed activities and impacts for 2012–2013 are within the scope of our 2005 Environmental Assessment and Finding of No Significant Impact. We have again reviewed the 2005 Environmental Assessment and determined that there are no new direct, indirect or cumulative impacts to the human and natural environment associated with the Incidental Harassment Authorization requiring evaluation in a supplemental Environmental Assessment and we, therefore, we reaffirm the 2005 Finding of No Significant Impact.
As a result of these determinations, NMFS has issued an IHA to ULA to take marine mammals, by Level B harassment only, incidental to conducting
Commodity Futures Trading Commission; Securities and Exchange Commission.
Request for comment; reopening of comment period.
The Commodity Futures Trading Commission (the “CFTC”) and the Securities and Exchange Commission (the “SEC” and, together with the CFTC, the “Commissions”) are reopening the comment period for a study to determine whether stable value contracts (“SVCs”) fall within the definition of a swap. The study is required by Section 719(d) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The original comment period for the study closed on September 26, 2011. The Commissions did not complete the study pending adoption of final rules further defining the terms “swap” and “security-based swap.” The Commissions are considering the study in light of the recent adoption of these final rules. Accordingly, the Commissions are reopening for 30 days the time period in which to provide the Commissions with comments.
Comments should be received on or before November 1, 2012.
Comments may be submitted by any of the following methods:
•
•
•
•
Please submit your comments using only one method. “
The CFTC reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse, or remove any or all of your submission from
• Use the SEC's Internet comment form (
• Send an email to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
CFTC: Stephen A. Kane, Research Economist, Office of the Chief Economist, (202) 418–5911,
Pursuant to section 719(d)(1)(A) of the Dodd-Frank Act, the Commissions jointly must conduct a study to determine whether SVCs fall within the definition of a swap.
If the Commissions determine that SVCs fall within the definition of a swap, they jointly must determine if an exemption for SVCs from the definition of a swap is appropriate and in the public interest and issue regulations implementing such determination.
On August 18, 2011, the Commissions requested comment regarding the study of SVCs required by Section 719(d) of the Dodd-Frank Act.
Given the regulatory developments since the initial request for comment was issued, specifically the adoption of final rules further defining the terms “swap” and “security-based swap,”
Are the proposed rules and the interpretive guidance set forth in the [Proposed Definitions] useful, appropriate, and sufficient for persons to consider when evaluating whether SVCs fall within the definition of a swap? If not, why not? Would SVCs satisfy the test for insurance provided in the [Proposed Definitions]? Why or why not? Is additional guidance necessary with regard to SVCs in this context? If so, what further guidance would be appropriate? Please explain.
By the Commodity Futures Trading Commission.
By the Securities and Exchange Commission.
Commodity Futures Trading Commission.
Notice of intent to renew.
The Commodity Futures Trading Commission (CFTC) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before December 3, 2012.
Send comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, to the addresses below. Please refer to OMB Control No. 3038–0091 in any correspondence.
Comments may also be submitted by any of the following methods:
The agency's Web site, at
Please submit your comments using only one method and identity that it is for the renewal of 3038–0091.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Martin B. White, Office of the General Counsel, Commodity Futures Trading Commission, 1155 21st Street NW., Washington, DC 20581, (202) 418–5129; Fax: (202) 418–5567; email:
With respect to the following collection of information, the CFTC invites comments on:
Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the CFTC's regulations were published on December 30, 1981. See 46 FR 63035 (Dec. 30, 1981). The
The Commission estimates the average burden of this collection of information as follows:
The recordkeeping and disclosure requirements of sections 22.2(g) and 22.11 are expected to apply to approximately 100 entities on a daily basis. The recordkeeping requirement of section 22.5 is expected to apply to approximately 100 entities on an approximately annual basis. Based on experience with analogous recordkeeping and disclosure requirements for FCMs in futures transactions, the recordkeeping and disclosure required by section 22.2(g) is expected to require about 100 hours annually per entity, for a total burden of approximately 10,000 hours.
The disclosure required by section 22.11 involves information that FCMs that intermediate swaps generate and
The recordkeeping required by section 22.12 involves information that Collecting FCMs and DCOs will receive pursuant to section 22.11 or that they generate and use in the usual and customary ordinary course of their business. It is expected that the required recordkeeping will be performed using automated data systems that Collecting FCMs and DCOs maintain and use in the usual and customary ordinary course of their business but that certain additional functionality will need to be added to these systems to perform the required disclosure. Because of the novel character of section 22.12, it is not possible to make a precise estimate of the paperwork burden. The necessary modifications to, and maintenance of, systems may require a range of between 20 and 40 hours of work annually. It is expected that the required recordkeeping will be performed by approximately 100 entities. The total annual burden for section 22.11 therefore is estimated at 2,000 to 4,000 hours.
Section 22.16 would apply to the same estimated 100 entities as sections 22.2(g), 22.5(a), and 22.11. The required disclosure would have to be made once each time a swaps customer begins to be cleared through a particular DCO or collecting FCM and each time a DCO or collecting FCM through which a customer's swaps are cleared changes it polices on the matters covered by the disclosure. It is expected that each disclosure would require about 0.2 hours of staff time by staff. It is uncertain what average number of swaps customers FCMs will have, and what average number of disclosures will be required for each customer annually. Assuming an average of 500 customers per FCM and two disclosures per customer per year, the estimated total annual burden would be 200 hours.
There are estimated to be no capital costs or operating and maintenance costs associated with this collection.
The Rehabilitation Act of 1973, as amended (the Act), requires each state to submit to the Commissioner of the Rehabilitation Services Administration a State Plan for the Vocational Rehabilitation (VR) Services program and the State Supported Employment (SE) Services program that meets the requirements of Sections 101(a) and 625 of the Act.
Interested persons are invited to submit comments on or before December 3, 2012.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that Federal agencies provide interested parties an early opportunity to comment on information collection requests. The Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Environmental Protection Agency (EPA).
Notice.
The EPA Office of the Science Advisor announces a public meeting of the Human Studies Review Board to advise the Agency on the EPA scientific and ethical reviews of research with human subjects.
This public meeting will be held on November 1, 2012, from approximately 1 p.m. to approximately 4:30 p.m. Eastern Time. Comments may be submitted on or before noon (Eastern Time) on Thursday, October 25, 2012.
Submit your written comments, identified by Docket ID No.
Any member of the public who wishes to receive further information should contact Jim Downing at telephone number (202) 564–2468; fax: (202) 564–2070; email address:
This action is directed to the public in general. This Notice may, however, be of particular interest to persons who conduct or assess human studies, especially studies on substances regulated by the EPA, or to persons who are, or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act or the Federal Insecticide, Fungicide, and Rodenticide Act. This notice might also be of special interest to participants of studies involving human subjects, or representatives of study participants or experts on community engagement. Since many entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult Jim Downing or Lu-Ann Kleibacker, listed under
In addition to using regulations.gov, you may access this
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data that you used to support your views.
4. Provide specific examples to illustrate your concerns and suggest alternatives.
5. To ensure proper receipt by the EPA, be sure to identify the Docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
You may participate in this meeting by following the instructions in this section. To ensure proper receipt by the EPA, it is imperative that you identify Docket ID number EPA–HQ–ORD–2012–0718 in the subject line on the first page of your request.
The HSRB is a Federal advisory committee operating in accordance with the Federal Advisory Committee Act 5 U.S.C. App. 2 § 9. The HSRB provides advice, information, and recommendations to the EPA on issues related to scientific and ethical aspects of human subjects research. The major objectives of the HSRB are to provide advice and recommendations on: (1) Research proposals and protocols; (2) reports of completed research with human subjects; and (3) how to strengthen EPA's programs for protection of human subjects of research. The HSRB reports to the EPA Administrator through the Agency's Science Advisor.
a. A completed study report from the Antimicrobial Exposure Assessment Task Force II (AEATF) in which the dermal and inhalation exposure of professional janitorial workers was monitored as they poured liquid antimicrobial pesticide products from conventional or reduced-splash containers into different sizes and types of source containers. EPA seeks the advice of the HSRB on the scientific soundness of this completed research and on its appropriateness for use in estimating exposure that results from pouring liquid antimicrobial pesticide products. EPA also seeks the advice of the HSRB on whether available information supports a determination that the study was conducted in substantial compliance with subparts K and L of 40 CFR part 26.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 17, 2012.
A. Federal Reserve Bank of New York (Ivan Hurwitz, Vice President) 33 Liberty Street, New York, New York 10045–0001:
1.
B. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690–1414:
1.
C. Federal Reserve Bank of San Francisco (Kenneth Binning, Vice President, Applications and Enforcement) 101 Market Street, San Francisco, California 94105–1579:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 27, 2012.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street, NE., Atlanta, Georgia 30309:
1.
B. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 27, 2012.
A. Federal Reserve Bank of New York (Ivan Hurwitz, Vice President) 33 Liberty Street, New York, New York 10045–0001:
1.
Federal Trade Commission.
Proposed consent agreements.
The consent agreements in these matters settle alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaints and the terms of the consent orders—embodied in the consent agreements—that would settle these allegations.
Comments must be received on or before October 25, 2012.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Tracy Thorleifson (206–220–4481) or Julie Mayer (206–220–4475), FTC, Northwest Region, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreements containing consent orders to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, have been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreements, and the allegations in the complaints. An electronic copy of the full text of each consent agreement package can be obtained from the FTC Home Page (for September 25, 2012), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 25, 2012. Write “DesignerWare, LLC”; “Timothy Kelly and Ronald P. Koller”; “Aspen Way Enterprises, Inc.”; “Watershed Development Corp.”; “Showplace, Inc.”; “J.A.G. Rents, LLC”; “Red Zone, Inc.”; “B. Stamper Enterprises, Inc.”; or “C.A.L.M. Ventures, Inc.” and “File No. 112 3151” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which is * * * privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it on one of the following web-based forms:
If you file your comment on paper, write “DesignerWare, LLC”; “Timothy Kelly and Ronald P. Koller”; “Aspen Way Enterprises, Inc.”; “Watershed Development Corp.”; “Showplace, Inc.”; “J.A.G. Rents, LLC”; “Red Zone, Inc.”; “B. Stamper Enterprises, Inc.”; or “C.A.L.M. Ventures, Inc.” and “File No. 112 3151” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H–113 (Annex D), 600 Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“Commission” or “FTC”) has accepted, subject to final approval, consent agreements from the following respondents: DesignerWare, LLC; Timothy Kelly, and Ronald P. Koller, individually and as officers of DesignerWare, LLC; Aspen Way Enterprises, Inc.; Watershed Development Corp.; Showplace, Inc., d/b/a Showplace Rent-to-Own; J.A.G. Rents, LLC, d/b/a ColorTyme; Red Zone, Inc., d/b/a ColorTyme; B. Stamper Enterprises, Inc., d/b/a Premier Rental Purchase; and C.A.L.M. Ventures, Inc., d/b/a Premier Rental Purchase.
The proposed consent orders have been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreements and the comments received, and will decide whether it should withdraw from any of the agreements and take appropriate action or make final the agreements' proposed orders.
Timothy Kelly and Ronald Koller founded and co-owned DesignerWare, LLC, a small software company that designed and licenses a single product, PC Rental Agent. Mr. Koller ended his association with DesignerWare in March 2012. PC Rental Agent is exclusively marketed to rent-to-own (“RTO”) stores. RTO stores rent to consumers a variety of household items, including personal computers. PC Rental Agent is designed to assist RTO stores in tracking and recovering rented computers. Its chief function is a “kill switch,” a program that can be used by a store to render a computer inoperable if the consumer renter is late or defaults on payments or if the computer is stolen. PC Rental Agent also offers a wiping feature that permits RTO stores to quickly erase the hard drives of computers prior to re-renting them to consumers.
Through PC Rental Agent, which RTO store licensees installed on rented computers, DesignerWare also provided access to “Detective Mode.” Detective Mode was a software application embedded in the PC Rental Agent program. At the request of an RTO store, DesignerWare would remotely complete the Detective Mode installation process on an individual computer and activate “the Detective.” Detective Mode would surreptitiously log the computer user's keystrokes, capture screenshots, and take pictures with the computer's webcam and send the data to DesignerWare's servers. Neither DesignerWare nor the RTO stores who have used Detective Mode disclosed to computer users that they were being monitored in this manner. Although DesignerWare recommended that Detective Mode be installed and activated only to locate and identify the person in possession of a lost or stolen computer, DesignerWare did not monitor its own collection of or limit RTO stores' access to Detective Mode information to ensure that the information was obtained and used only for designated purposes.
DesignerWare sent the information captured by Detective Mode to an email account designated by each RTO store. Although DesignerWare's employees did not themselves view Detective Mode data, without DesignerWare licensing PC Rental Agent and making Detective Mode available to the RTO stores, as well as providing them with access to its web portal and providing servers to support both PC Rental Agent and Detective Mode, this collection and disclosure of consumers' private information would not be possible.
RTO stores also used Detective Mode to send fake “software registration” forms to consumers to deceive them into providing their contact and location information. DesignerWare created several different fake registration forms that its servers displayed on consumers' computers. An RTO store could use this feature of Detective Mode by requesting that DesignerWare activate it. No actual software was registered as a result of a consumer providing the requested information. Rather, Detective Mode captured the information entered in the prompt boxes and sent it to DesignerWare, who then emailed the data to the RTO store, all unbeknownst to the consumer. DesignerWare discontinued use of Detective Mode in January 2012.
In September 2011, DesignerWare added another feature to PC Rental Agent: the capacity to track the physical location of rented computers via WiFi hotspot locations. The information derived from WiFi hotspot contacts can frequently pinpoint a computer's location to a single building and, when aggregated, can track the movements and patterns of individual computer users over time. DesignerWare makes this information easily available to the RTO stores by cross-referencing a list of publicly available WiFi hotspots with the street addresses for the particular hotspots viewed or accessed by rented computers. DesignerWare applied its location tracking upgrade of PC Rental Agent to every computer on which PC Rental Agent was installed, without obtaining consent from, or providing notice to, the computers' renters. DesignerWare recommends that RTO stores only use this tracking data in connection with recovering stolen property, but it does not monitor or limit the RTO stores' access to such location information.
Aspen Way Enterprises, Watershed Development, Showplace, J.A.G. Rents, Red Zone, B. Stamper Enterprises, and C.A.L.M. Ventures are RTO stores that have licensed PC Rental Agent from DesignerWare. These RTO stores have used information transmitted by DesignerWare when attempting to collect from computer renters who are late in paying or have otherwise breached their rental contracts. Using Detective Mode, these RTO stores have received from DesignerWare webcam photos of computer users (and anyone else within view of the camera), computer users' keystrokes, and screenshots of their computer activities. This information has revealed private and confidential details about computer users, such as their passwords for access to email accounts, social media Web sites, and financial institutions. Other confidential information was also captured, including medical records, private emails to doctors, employment applications containing Social Security numbers, bank and credit card statements, and discussions of defense strategies in a pending lawsuit. Through Detective Mode, DesignerWare and the RTO stores also secretly photographed the private conduct of consumers in their homes. This included pictures of children, household visitors, individuals not fully clothed, and couples engaged in intimate activities.
The collection and disclosure of such private and confidential information about consumers causes or is likely to cause substantial injury to consumers. Consumers are likely to be substantially injured by the exposure to strangers of personal, financial account access, and medical information. Consumers are actually harmed by DesignerWare's unwarranted invasion into their homes and lives and its capture and disclosure of the private details of individual and family life, including, for example, images of visitors, children, family interactions, partially undressed individuals, and couples engaged in sexual activities. Sharing data like that collected by Detective Mode with third parties can cause consumers financial and physical injury, and impair their peaceful enjoyment of their homes. Because Detective Mode functions secretly, consumers cannot reasonably avoid this harm, which is neither trivial nor speculative. Moreover, there are no
DesignerWare also sent consumers' contact information to the RTO stores. DesignerWare gathered this information from computer users who completed the deceptive “software registration” forms sent through Detective Mode. The RTO stores used this information to find, require payment for, or repossess a rented computer.
The Commission's complaint against DesignerWare, Kelly, and Koller (collectively, “DesignerWare Respondents”) alleges that the company and its principals engaged in unfair and deceptive conduct and provided the means and instrumentalities to engage in unfairness, all in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45. The first count of the complaint focuses on actions taken by DesignerWare that caused or were likely to cause substantial injury to consumers. Count I alleges that the DesignerWare Respondents engaged in unfair conduct by installing monitoring software on rented computers, gathering personal, financial, and health information about consumers from computers, and disclosing that information to RTO store licensees. Count I also alleges as unfair the DesignerWare Respondents' installation of geophysical location tracking software on rented computers without consent from the computer renters, the tracking of computers' geophysical locations without notice to computer users, and the disclosure of that information to the RTO stores.
Count II alleges that the DesignerWare Respondents provided the means to third parties—the RTO stores—to violate Section 5. The first part of the count charges the DesignerWare Respondents with providing RTO stores with the means and instrumentalities to engage in unfairness by furnishing them with software that could monitor consumers by recording their keystrokes, capturing screenshots of information displayed on a computer, and taking pictures of the computer user, and further could track the geophysical location data of rented computers without the consent of the computer renter or notice to the computer user. The second part of Count II alleges that the DesignerWare Respondents provided the means and instrumentalities to RTO stores to engage in unfair collection practices by providing them with the data gathered via PC Rental Agent and Detective Mode. Count II focuses on actions taken by DesignerWare that were integral to the harm to consumers caused or likely to be caused by the RTO stores. Here, without PC Rental Agent and Detective Mode and without access to DesignerWare's servers to execute their commands to rented computers, collect consumers' confidential information and transmit it to them, the RTO stores could not unfairly monitor their computer renters or use improperly gathered information in connection with collections.
Count III of the complaint charges the DesignerWare Respondents with deceptively gathering—and disclosing—consumers' personal information collected from the fake software registration forms that Detective Mode caused to appear on consumers' rented computers.
Each of the Commission's complaints against the seven RTO stores contains substantially similar allegations regarding the stores' violations of the FTC Act. The complaints charge that the RTO stores unfairly gathered consumers' personal information by installing monitoring software on rented computers and engaged in unfair collection practices by using the improperly gathered information to collect on consumer rental contracts. The complaints further allege that the RTO stores deceptively gathered consumers' personal information by activating the Detective Mode feature that sends the fake software registration forms to consumers' rented computers.
The proposed orders contain strong injunctive relief designed to remedy the unlawful conduct by DesignerWare, its principals, and the RTO stores. The orders define “monitoring technology and geophysical location tracking technology” so that the technological applications covered by the order are clearly described. “Monitoring technology” means any hardware, software, or application utilized in conjunction with a computer that can cause the computer to (1) capture, monitor, or record, and (2) report information about user activities by recording keystrokes, clicks, or other user-generated actions; capturing screenshots of the information displayed on a computer monitor or screen; or activating the camera or microphone function of a computer to take photographs or record audio or visual content through the computer's webcam or microphone. The definition of “geophysical location tracking” includes the reporting of GPS coordinates, WiFi hotspots, or telecommunications towers—all technologies that allow for a relatively precise location of the item tracked. In addition, a “covered rent-to-own transaction” is defined as one in which a consumer agrees to purchase or rent a computer, where the rental agreement provides for payments over time and an option to purchase the computer.
The proposed orders with DesignerWare and its principals, Kelly and Koller, are separate, but contain identical injunctive provisions. Section I of the proposed orders with DesignerWare and its principals bans them from using—as well as licensing, selling, or otherwise providing third parties with—monitoring technology in connection with any covered RTO transaction. Section II prohibits them from using geophysical location tracking technology to gather information from any computer without providing clear and prominent notice to and obtaining affirmative express consent from the computer's renter at the time the computer is rented. This section also requires clear and prominent notice to computer users immediately prior to each time tracking technology is activated. In addition, Section II mandates that DesignerWare and its principals require their licensees to obtain consent and provide notice prior to initiating any location tracking. However, DesignerWare and its principals do not need to provide notice to a computer user prior to activating geophysical location tracking technology if (1) there is a reasonable basis to believe that the computer has been stolen and (2) a police report has been filed.
Section III of the proposed orders with DesignerWare and its principals prohibits the deceptive collection of consumer information via fake software registration notices. Section IV requires that any data that was collected through any monitoring or tracking software without the requisite notice and consent be destroyed and that any properly collected data be encrypted when transmitted. Section V bars DesignerWare and its principals from making misrepresentations about the privacy or security of any personal information gathered from or about consumers.
Sections VI through IX of both orders contain reporting and compliance provisions. Section VI of the proposed DesignerWare order requires the company to disseminate the order now and in the future to all current and future principals, officers, directors, and managers, and to persons with responsibilities relating to the subject matter of the order. This section also requires DesignerWare to secure a signed and dated statement acknowledging receipt of the order from
Section VI of the proposed order with the DesignerWare principals requires respondents to distribute it to all current and future principals, officers, directors, and managers of any company that either respondent controls that engages in any covered RTO transaction as well as to all current and future employees, agents, and representatives having responsibilities relating to the subject matter of this order. It also requires the respondents to secure a signed and dated statement acknowledging receipt of the order from all persons who receive a copy. Section VII of the proposed order with the DesignerWare principals requires them to submit compliance reports to the Commission within sixty (60) days, and periodically thereafter as requested. In addition, this section requires them to notify the Commission of changes in their business or employment for three (3) years.
Under Section VIII of the proposed orders with both DesignerWare and its principals, respondents must retain documents relating to their compliance with the order for a five (5) year period. Finally, Section IX of both proposed orders is a provision “sunsetting” the orders after twenty (20) years, with certain exceptions.
The proposed orders against the RTO stores (which are identical to each other) contain similar injunctive provisions to those in the proposed orders with DesignerWare and its principals. Section I of each of the proposed orders bans the RTO stores from using monitoring technology in connection with any covered RTO transaction. Section II prohibits the stores from using geophysical location tracking technology to gather information from any computer without providing clear and prominent notice to the computer's renter and obtaining affirmative express consent from the computer's renter at the time the computer is rented. This section also requires clear and prominent notice to a computer user immediately prior to each time such technology is activated. The proposed RTO store orders also suspend the notice requirement if (1) there is a reasonable basis to believe that the computer has been stolen and (2) a police report has been filed. Section III of each of the proposed orders prohibits the deceptive collection of consumer information via fake software registration notices.
Section IV bars the stores from collecting or attempting to collect a debt, money, or property pursuant to a consumer rental contract by using any information or data that was improperly obtained from a computer by monitoring technology. Section V requires that any data collected through any monitoring or tracking software without the requisite notice and consent be destroyed, and that any properly collected data be encrypted when transmitted. As fencing in, Section VI bars misrepresentations about the privacy or security of any personal information gathered from or about consumers.
Sections VII through X of the proposed RTO store orders contain reporting and compliance provisions. Section VII requires distribution of the order now and in the future to all current and future principals, officers, directors, and managers, and to persons with responsibilities relating to the subject matter of the order. It also requires the RTO stores to secure signed and dated statements acknowledging receipt of the order from all persons who receive a copy of the order. Section VIII requires the RTO stores to submit compliance reports to the Commission within sixty (60) days, and periodically thereafter as requested, and ensures notification to the Commission of changes in corporate status. Under Section IX, the RTO stores must retain documents relating to order compliance for a five (5) year period. Finally, Section X is a provision “sunsetting” the order after twenty (20) years, with certain exceptions.
The purpose of this analysis is to facilitate public comment on the proposed orders. It is not intended to constitute an official interpretation of the proposed complaints or orders or to modify the terms of the orders in any way.
By direction of the Commission, Commissioner Rosch abstaining.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the President's Advisory Council on Faith-based and Neighborhood Partnerships announces the following three conference calls:
Administration for Community Living, HHS.
Notice.
The Administration Intellectual and Developmental Disabilities (AIDD), Administration for Community Living (ACL) is announcing that the proposed collection of
Submit written comments on the collection of information by November 1, 2012.
Submit written comments on the collection of information to
Brianne Burger, 202.618.5525.
In compliance with 44 U.S.C. 3507, ACL has submitted the following proposed collection of information to OMB for review and clearance. Federal statute and regulation require each State Protection and Advocacy (P&A) System to prepare and solicit public comment on a Statement of Goals and Priorities (SGP) for the P&A for Developmental Disabilities (PADD) program for each coming fiscal year. While the P&A is mandated to protect and advocate under a range of different federally authorized disabilities programs, only the PADD program requires an SGP. Following the required public input for the coming fiscal year, the P&As submit the final version of this SGP to the Administration on Intellectual and Developmental Disabilities (AIDD). AIDD will aggregate the information in the SGPs into a national profile of programmatic emphasis for P&A Systems in the coming year. This aggregation will provide AIDD with a tool for monitoring of the public input requirement. Furthermore, it will provide an overview of program direction, and permit AIDD to track accomplishments against goals/targets, permitting the formulation of technical assistance and compliance with the Government Performance and Results Act of 1993. ACL estimates the burden of this collection of information as follows:
Estimated Total Annual Burden Hours: 2,508.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) is announcing the availability of a draft guidance for industry entitled “Initial Completeness Assessments for Type II API DMFs Under GDUFA.” Under the Generic Drug User Fee Amendments of 2012 (GDUFA), holders of certain drug master files, namely, Type II active pharmaceutical ingredient (API) drug master files (DMFs) that are referenced in generic drug applications, or in amendments or prior approval supplements to these applications, will be required to undergo an initial completeness assessment in accordance with FDA criteria. This guidance is intended to clarify the criteria FDA will use in the initial completeness assessment.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by December 3, 2012.
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist the office in processing your requests. See the
Submit electronic comments on the draft guidance to
Jaewon Hong, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993–0002, 1–866–405–5367 or 301–796–6707.
Section 744B(a)(2)(D)(ii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 379j–42(a)(2)(D)(ii)) (FD&C Act), which was added by GDUFA, Title III, Food and Drug Administration Safety and Innovation Act (Pub. L. 112–144), states that, on or after October 1, 2012, a Type II API DMF will be deemed available for reference in an abbreviated new drug application (ANDA), ANDA amendment, or ANDA prior approval supplement (PAS), if the required fee has been paid
Fee amounts and the due date for the fee will be announced in a separate
For DMFs that fail the initial completeness assessment, FDA will issue a letter notifying the holder of the DMF that the DMF is incomplete and identifying missing elements in the DMF that must be addressed. Once the DMF is amended, FDA will re-evaluate it for completeness. This draft guidance describes the criteria that FDA will use in its initial completeness assessment of Type II API DMFs to be referenced in generic drug submissions.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on initial completeness assessments of Type II API DMFs to be referenced in generic drug submissions. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice of Requirement.
The Food and Drug Administration (FDA) is notifying generic drug facilities, and certain sites and organizations identified in a generic drug submission, that they must provide identification information to FDA. This information is required to be submitted to the FDA annually under the Generic Drug User Fee Act Amendments of 2012 (GDUFA) included in the Food and Drug Administration Safety and Innovation Act (FDASIA). This notice is intended to help organizations ascertain if they need to self-identify with the FDA, determine what information they are required to submit, and familiarize themselves with the means and format for submitting the required information.
For fiscal year 2013, identification information must be submitted by December 3, 2012. For each subsequent fiscal year, identification information must be submitted, updated, or reconfirmed on or before June 1 of the preceding fiscal year.
Electronic tools for submitting the required information may be found at the following Web sites:
•
•
Step-by-step instructions for electronically creating, validating, and submitting self-identification information are available at
Jaewon Hong, Center for Drug Evaluation and Research (HFD–300), Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993–0002, 1–866–405–5367 or 301–796–6707.
On July 9, 2012, GDUFA (FDASIA, Title III) (Pub. L. 112–144, Title III) was signed into law by the President. GDUFA requires that generic drug facilities, and certain sites and organizations identified in a generic drug submission, provide identification information annually to FDA. This notice specifies who is required to self-identify, the type of information to be submitted, the means and format for submission of this information, and the penalty for failing to comply. Additional information is contained in the draft guidance for industry entitled “Self-Identification of Generic Drug Facilities, Sites and Organizations” available at
The following types of generic industry facilities, sites, and organizations are required to be identified to FDA:
1. Facilities identified, or intended to be identified in at least one generic drug submission that is pending or approved to produce a finished dosage form (FDF) of a human generic drug or an active pharmaceutical ingredient (API) contained in a human generic drug. Thus, facilities engaged in manufacturing or processing a generic API or FDF must be identified. For purposes of self-identification and payment of fees, GDUFA defines API and FDF manufacturers differently from the way they have been defined historically. The GDUFA definitions are included in the draft guidance for industry entitled “Self-Identification of Generic Drug Facilities, Sites and Organizations,” available at
2. Sites and organizations that package the FDF of a human generic drug into the primary container/closure system and label the primary container/closure system. Sites and organizations that package the FDF of a human generic drug into the primary container/closure system and label the primary
3. Sites that are identified in a generic drug submission and pursuant to a contract with the applicant remove the drug from a primary container/closure system and subdivide the contents into a different primary container/closure system (contract repackagers).
4. Bioequivalence (BE)/bioavailability (BA) sites that are identified in a generic drug submission and conduct clinical BE/BA testing (i.e., clinical research organizations), bioanalytical testing of samples collected from clinical BE/BA testing, and/or in vitro BE testing.
5. Sites that are identified in a generic drug submission and perform testing of one or more attributes or characteristics of the FDF or the API pursuant to a contract with the applicant to satisfy a current good manufacturing practice testing requirement (excluding sites that are testing for research purposes only).
The information required to be submitted is identified in GDUFA SPL Industry Technical Specification Information document available at
A facility or site that has previously registered with FDA (under section 510 of the Federal Food, Drug, and Cosmetic Act or section 351 of the Public Health Service Act), can verify its DUNS number(s) and FEI(s) on FDA's registration site for drug establishments available at
The new electronic self-identification process will be familiar to many business entities who have previously submitted information to FDA electronically. Self-identification files should be formatted in the same electronic messaging standard used for drug registration and listing information and for the content of labeling for abbreviated new drug applications (ANDAs). This standard known as Health Level Seven SPL allows information to be exchanged, searched, and combined with other data sources in a manner that supports health information technology initiatives to improve patient care.
The required information may be submitted using any of the following tools to generate a self-identification SPL file:
1. eSubmitter tool, a free stand-alone application available at
2. Xforms, a free tool for generating SPL files available at
3. Software tools developed internally by generic manufacturers utilizing the SPL technical specifications. Additional information is available at
4. Other commercially available applications (e.g., vendor tools).
Once a self-identification SPL file is created and finalized, transmit the file to FDA through the ESG, FDA's electronic information portal. More information on ESG procedures and process is available on the Electronic Submission Gateway Web site (
Under GDUFA, if a facility fails to self-identify, all FDF or API products manufactured at the facility and all FDFs containing APIs manufactured at the facility will be deemed misbranded. It is a violation of Federal law to ship misbranded products in interstate commerce or to import them into the United States. Such a violation can result in prosecution of those responsible, injunctions, or seizures of the misbranded products. Products that are deemed misbranded because of failure of the facility to self-identify are subject to being denied entry into the United States.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “Acute Bacterial Otitis Media: Developing Drugs for Treatment.” This guidance addresses FDA's current thinking regarding the overall development program and clinical trial designs for drugs to support an indication for the treatment of acute bacterial otitis media (ABOM). This guidance finalizes the revised draft guidance of the same name issued on January 18, 2008.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the guidance to
Joseph G. Toerner, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6244, Silver Spring, MD 20993–0002, 301–796–1300.
FDA is announcing the availability of a guidance for industry entitled “Acute Bacterial Otitis Media: Developing Drugs for Treatment.” The purpose of this guidance is to assist sponsors in the overall clinical development of drugs to support an indication for the treatment of ABOM, defined in the guidance as “the recent or acute onset of inflammation of the middle ear caused by a bacterial pathogen.” This guidance finalizes the revised draft guidance issued on January 18, 2008, which in turn revised the draft guidance for industry entitled “Acute Otitis Media—Developing Antimicrobial Drugs for Treatment” issued in 1998. Changes from the revised draft guidance are incorporated in the appropriate sections of the guidance and are based on comments received to the docket for the draft guidance. In addition, developments in scientific and medical information and technology in the treatment of ABOM are included in this guidance. This guidance fulfills the statutory requirement described in the Food and Drug Administration Amendments Act of 2007 that directed FDA to update the guidance within 5 years.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on developing drugs for the treatment of ABOM. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR parts 312 and 314 have been approved under 0910–0014 and 0910–0001, respectively. The collections of information referred to in the guidance for clinical trial sponsors entitled “Establishment and Operation of Clinical Trial Data Monitoring Committees” have been approved under 0910–0581.
Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at either
The Health Resources and Services Administration (HRSA) periodically publishes abstracts of information collection requests under review by the Office of Management and Budget (OMB), in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). To request a copy of the clearance requests submitted to OMB for review, email
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
The annual estimate of burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to the desk officer for HRSA, either by email to
Health Resources and Services Administration (HRSA), HHS.
Notice of Noncompetitive Program Expansion Supplements to Develop, Implement, and Evaluate Educational Curricula in Medication Administration and Management; Care Coordination and Follow Up; and Behavioral Health and Social Support for Home Health Aides.
The Health Resources and Services Administration (HRSA) will offer noncompetitive program expansion supplements of $100,000 to 10 Nursing Assistant and Home Health Aide (NAHHA) Program grantees to develop, implement, and evaluate enhanced training programs to build competency in medication administration and management, care coordination and follow up, and behavioral health and social support for home health aides. Approximately $1,000,000 is available in fiscal year (FY) 2012. The NAHHA grantees have the capability, expertise, experience and infrastructure to expeditiously and effectively implement this enhanced training program. Their existing curricular efforts have built-in opportunities to offer continuing/expanded training, and these skills represent ones that have been identified by program participants and employers as highly desirable areas for training.
Grantees of record are:
Public Health Service Act, Title VIII, Section 831, 42 U.S.C. 296p, as amended by the Affordable Care Act (Pub. L. 111–148).
Kirk Koyama, Health Resources and Services Administration, Division of Nursing, 5600 Fishers Lane, Room 9–61, Rockville, Maryland 20857, or email
Indian Health Service, HHS.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, which requires 60 days for public comment on proposed information collection projects, the Indian Health Service (IHS) is publishing for comment a summary of a proposed information collection to be submitted to the Office of Management and Budget (OMB) for review.
The total estimated burden for this collection of information is 174,375 hours. There are no capital costs, operating costs and/or maintenance costs to respondents.
Science and Technology Directorate, DHS.
60-day notice and request for comment.
The Department of Homeland Security (DHS) is soliciting public comment on the following forms: (1) Registration as a Seller of an Anti-Terrorism Technology (DHS Form 10010); (2) Request for a Pre-Application Consultation (DHS Form 10009); (3) Notice of License of Qualified Anti-Terrorism Technology (DHS Form 10003); (4) Notice of Modification of Qualified Anti-Terrorism Technology (DHS Form 10002); (5) Application for Transfer of SAFETY Act Designation and Certification (DHS Form 10001); (6) Application for Renewal Of SAFETY Act Protections of a Qualified Anti-Terrorism Technology (DHS Form 10057); (7) Application for SAFETY Act Developmental Testing and Evaluation Designation (DHS Form 10006); (8) Application for SAFETY Act Designation (DHS Form 10008); (9) Application for SAFETY Act Certification (DHS Form 10007); (10) SAFETY Act Block Designation Application (DHS Form 10005); and (11) SAFETY Act Block Certification Application (DHS Form 10004).
Comments are encouraged and will be accepted until December 3, 2012.
You may submit comments, identified by docket number DHS–2012–0043, by one of the following methods:
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DHS S&T provides a secure Web site, accessible through
The SAFETY Act program promotes the development and use of anti-terrorism technologies that will enhance the protection of the nation and provides risk management and litigation management protections for sellers of Qualified Anti-Terrorism Technology (QATT) and others in the supply and distribution chain. The Department of Homeland Security Science & Technology Directorate (DHS S&T) currently has approval to collect information for the implementation of the SAFETY Act program until March 31, 2013. With this notice, DHS S&T seeks approval to renew this information collection for continued use after this date. The SAFETY Act program requires the collection of this information in order to evaluate and qualify Anti-Terrorism Technologies, based on the economic and technical criteria contained in the Regulations Implementing the Support Anti-Terrorism by Fostering Effective Technologies Act (the Final Rule), for protection in accordance with the Act, and therefore encourage the development and deployment of new and innovative anti-terrorism products and services. The Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act (6 U.S.C. .441) was enacted as part of the Homeland Security Act of 2002, Public Law 107–296 establishing this requirement. This notice and request for comments is required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35).
DHS S&T currently has approval to collect information utilizing the Registration of a Seller as an Anti-Terrorism Technology (DHS Form 10010), Request for a Pre-Application Consultation (DHS Form 10009), Notice of License of Qualified Anti-Terrorism Technology (DHS Form 10003), Notice of Modification of Qualified Anti-Terrorism Technology (DHS Form 10002), Application for Transfer of SAFETY Act Designation and Certification (DHS Form 10001), Application for Renewal Of SAFETY Act Protections of a Qualified Anti-Terrorism Technology (DHS Form 10057), Application for SAFETY Act Developmental Testing and Evaluation Designation (DHS Form 10006), Application for SAFETY Act Designation (DHS Form 10008), Application for SAFETY Act Certification (DHS Form 10007), SAFETY Act Block Designation Application (DHS Form 10005), SAFETY Act Block Certification Application (DHS Form 10004) until 31 March 2013 with OMB approval number 1640–0001.
The Department is committed to improving its information collection and urges all interested parties to
DHS is particularly interested in comments that:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Suggest ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Suggest ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
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Privacy Office, DHS.
Committee Management; Notice of Federal Advisory Committee Meeting.
The DHS Data Privacy and Integrity Advisory Committee will meet on November 7, 2012, in Washington, DC. The meeting will be open to the public.
The DHS Data Privacy and Integrity Advisory Committee will meet on Wednesday, November 7, 2012, from 1 p.m. to 5 p.m. Please note that the meeting may end early if the Committee has completed its business.
The meeting will be held at the Ronald Reagan Building, 1300 Pennsylvania Avenue NW., Room B 1.5–10, Washington, DC 20004.
For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, contact Shannon Ballard, Designated Federal Officer, DHS Data Privacy and Integrity Advisory Committee, as soon as possible.
To facilitate public participation, we invite public comment on the issues to be considered by the Committee as listed in the “
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If you wish to attend the meeting, please plan to arrive at the Ronald Reagan Building no later than 12:45 p.m., so as to allow extra time to be processed through security, and bring a photo I.D. The DHS Privacy Office encourages you to register for the meeting in advance by contacting Shannon Ballard, Designated Federal Officer, DHS Data Privacy and Integrity Advisory Committee, at
Shannon Ballard, Designated Federal Officer, DHS Data Privacy and Integrity Advisory Committee, Department of Homeland Security, 245 Murray Lane SW., Mail Stop 0655, Washington, DC 20528, by telephone (202) 343–1717, by fax (202) 343–4010, or by email to
Notice of this meeting is given under the
During the meeting, the Acting Chief Privacy Officer will provide the Committee an update on the activities of the DHS Privacy Office.
During the meeting, the Committee plans to discuss and may vote on two draft subcommittee recommendation reports to the Department providing guidance on privacy protections for the collection and use of biometrics and for cybersecurity pilot programs. These draft reports will be posted on the Committee's Web site (
DHS requests that you voluntarily submit this information under its following authorities: the
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Amspec Services LLC, as a commercial gauger and laboratory.
Notice is hereby given that, pursuant to 19 CFR 151.12 and 19 CFR 151.13, Amspec Services LLC, 4370 Oakes Road Unit 732, Davie, FL 33314, has been approved to gauge and accredited to test petroleum and petroleum products, organic chemicals and vegetable oils for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquires regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344–1060. The inquiry may also be sent to
The accreditation and approval of Amspec Services LLC, as commercial gauger and laboratory became effective on June 21, 2012. The next triennial inspection date will be scheduled for June 2015.
Christopher Mocella, Laboratories and Scientific Services, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, 202–344–1060.
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Crew Member's Declaration (Form 5129). This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This information collection was previously published in the
Written comments should be received on or before November 1, 2012.
Interested persons are invited to submit written comments on this information collection to the Office of Information and Regulatory Affairs,
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street, NW., 5th Floor, Washington, DC 20229–1177, at 202–325–0265.
CBP invites the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L. 104–13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, 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 collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-Day notice and request for comments; Extension of an existing collection of information.
As part of its continuing effort to reduce paperwork and respondent burden, CBP invites the general public and other Federal agencies to comment on an information collection requirement concerning Deferral of Duty on Large Yachts Imported for Sale. This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13).
Written comments should be received on or before December 3, 2012, to be assured of consideration.
Direct all written comments to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229–1177.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229–1177, at 202–325–0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual cost burden to respondents or record keepers from the collection of information (total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this document CBP is soliciting comments concerning the following information collection:
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day Notice and request for comments; Extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Exportation of Used Self-Propelled Vehicles. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours. This document is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Written comments should be received on or before November 1, 2012.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229–1177, at 202–325–0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13; 44 U.S.C. 3505(c)(2)). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual costs burden to respondents or record keepers from the collection of information (a total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this document CBP is soliciting comments concerning the following information collection:
Abstract: The U.S. Customs and Border Protection (CBP) regulations require an individual attempting to export a used self propelled vehicle to furnish documentation to CBP at the port of export. Exportation of a vehicle is permitted only upon compliance with these requirements. The required documentation includes, but is not limited to, a Certificate of Title or a Salvage Title, the Vehicle Identification Number (VIN), a Manufacturer's Statement of Origin, etc. CBP will accept originals or certified copies of Certificate of Title. The purpose of this information is to help ensure that stolen vehicles or vehicles associated with other criminal activity are not exported.
Collection of this information is authorized by 19 U.S.C.1627a which provides CBP with authority to impose export reporting requirements on all used self-propelled vehicles. It is also authorized by Title IV, Section 401 of the Anti-Car Theft Act of 1992, 19 U.S.C. 1646(c) which requires all persons or entities exporting a used self-propelled vehicle to provide to CBP, at least 72 hours prior to export, the VIN and proof of ownership of each automobile. This information collection is provided for by 19 CFR Part 192. Further guidance regarding these requirements is provided at:
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing information collection.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Application for
Written comments should be received on or before November 1, 2012.
Interested persons are invited to submit written comments on this information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for U.S. Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 799 9th Street NW., 5th Floor, Washington, DC 20229–1177, at 202–325–0265.
CBP invites the general public and affected Federal agencies to submit written comments and suggestions on proposed and/or continuing information collection requests pursuant to the Paperwork Reduction Act (Pub. L.104–13). Your comments should address one of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies/components estimate of the burden of the proposed collection of information, 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 collections of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological techniques or other forms of information.
Fish and Wildlife Service, Interior.
Notice of availability.
We, the Fish and Wildlife Service (Service), announce the availability of the final comprehensive conservation plan (CCP) and finding of no significant impact for the environmental assessment for St. Johns National Wildlife Refuge (NWR) in Brevard County, Florida. In the final CCP, we describe how we will manage this refuge for the next 15 years.
You may obtain a copy of the CCP by writing to: Ms. Layne Hamilton, c/o Merritt Island National Wildlife Refuge Complex, P.O. Box 2683, Titusville, FL 32781. Alternatively, you may download the document from our Internet Site:
Ms. Layne Hamilton, at 321/861–0667 (telephone).
With this notice, we finalize the CCP process for St. Johns NWR. We started the process through a notice in the
St. Johns NWR is a unit of and administered through the Merritt Island National Wildlife Refuge Complex.
St. Johns NWR was established in August 1971, to provide protection for threatened and endangered species and to enhance native diversity. The refuge contains two units totaling approximately 6,422 acres. The southern or Bee Line Unit occurs about a mile west of Port St. John, Florida, while the northern or State Road 50 Unit occurs about 5 miles to the north, roughly 5 miles west of Titusville, Florida. St. Johns NWR is closed to public use, except for those uses permitted through the special use permit process. St. Johns NWR contains some of the last vestiges of inland salt pan habitat known in Florida—a habitat dominated by cordgrass, but disconnected from tidewaters. Saltwater upwellings, along with periodic fires and floods, maintain this unique habitat, which exists as part of a network of preserves within the Upper St. Johns River Basin, including natural areas managed by the State of Florida and Brevard County.
The refuge was home to the last remaining families of the dusky seaside sparrow (
We announce our decision and the availability of the final CCP and FONSI for St. Johns NWR in accordance with the National Environmental Policy Act (NEPA) (40 CFR 1506.6(b)) requirements. We completed a thorough analysis of impacts on the human environment, which we included in the draft comprehensive conservation plan and environmental assessment (Draft CCP/EA).
The CCP will guide us in managing and administering St. Johns NWR for the next 15 years. Alternative C is the foundation for the CCP.
The compatibility determinations for research, environmental education and interpretation, wildlife observation and photography, bicycling, commercial photography, and commercial tours and guiding are included in the CCP.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Administration Act.
We made copies of the Draft CCP/EA available for a 30-day public review and comment period via a
After considering the comments we received and based on our professional judgment, we selected Alternative C for implementation. This alternative will focus on enhancing all native wildlife and habitat diversity on the refuge. We will determine our role in regional and national species conservation plans. Concerning the suite of residing, wintering, and summering birds on the refuge, Alternative C will represent an expansion of management. Through prescribed burning and utilizing ecological indicators, we will promote an ecologically based fire return interval to maintain early successional ecological stages of all fire-maintained habitats. In addition, the hydrologic setting will be restored to as close to pre-drainage conditions as possible to benefit refuge wildlife. Under Alternative C, we will expand management of wood storks and State-listed wading birds. In conjunction with State-listed wading bird nesting surveys, we will opportunistically remove fill and dike features from peninsulas in the State Road 50 Unit borrow ponds, to provide additional artificial islands. On behalf of the northern crested caracara, Alternative C will maintain open habitat with a minimum of woody vegetation. We will also evaluate the use of mowing, grazing, and/or other forms of vegetation control to help maintain open prairie for crested caracara at the Bee Line Unit, while minimizing impacts to secretive marsh birds. Through discussions with the State, we will stay abreast of Cape Sable seaside sparrow reintroduction.
Under Alternative C, management of hydrology, including groundwater, surface water, and water quality, will be expanded. We will coordinate with the St. Johns River Water Management District (SJRWMD) to develop a better understanding of the hydrology of the refuge. To help fill in the information gaps, and by utilizing experts, we will develop a hydrologic study to understand the relationships of water quality, water quantity, and timing of flows within and across the refuge. We will increase control of invasive/feral animals and will reduce invasive plants to a maintenance level. We will coordinate with local cooperative invasive species management areas to develop an early detection and alert network to help control invasive animals. We will use permittees and partners for the feral hog control effort, but may also use public hunts if, after evaluation, hunting is determined to be an effective tool to control feral hog populations. Under Alternative C, management of all vegetation communities on the refuge will expand. We will focus habitat management on maintaining and supporting a wide array of native wildlife using the refuge. Overall, however, in Alternative C, the relative percentages and composition of major habitat types on the refuge will not change; the aim will be to increase the quality rather than quantity of the various habitat types. Management of mammals will expand. We will strive to maintain emergent marsh and open waters for a diversity of mammals, such as white-tailed deer and round-tailed muskrat. We will also conduct a mammal inventory during the 15-year life of the CCP.
With regard to climate change, we will partner with SJRWMD in adaptive management efforts to manage habitats, ecosystems, and wildlife affected by climate change. We will investigate opportunities to participate in regional climate change initiatives to better understand the role climate change may have on refuge resources, and will adapt management based on discovery of climate change-related impacts.
Under the preferred alternative, we will work with partners to consolidate and secure ownership in the checkerboard area of the Bee Line Unit to create functional management areas. We will consider fee-title acquisitions based on a willing-seller approach, land swaps, management agreements, and conservation easements to protect these sites. We will work with Brevard County to vacate or abandon rights-of-way, as well as add right-of-way access to accommodate public use. Additionally, the preferred alternative identifies a minor expansion proposal of less than 10 percent (625 acres) of the refuge's approved acquisition boundary, to connect lands and develop natural-area corridors to the State Road 50 Unit. We will increase our law enforcement staff and coordinate with governmental partners and landowners to increase the number of patrols to deter and prevent destructive illegal activities. With regard to cultural, historical, and archaeological resources, we will continue to implement Section 106 of the National Historic Preservation Act to provide protection for these resources. In addition, we will complete and begin
One of the centerpieces of the preferred alternative includes expanding visitor services and public use. To expand opportunities for interpretation, we will work with partners to evaluate a range of access alternatives for the refuge. Working with Brevard County, we will seek to develop facilities such as a trailhead and kiosk from the county's Fay Lake Park to our Bee Line Unit, and will consider developing an interpretive trail and kiosk on the State Road 50 Unit. We will explore opportunities, based on potential and varied acquisition opportunities from willing sellers, to provide public access to the State Road 50 Unit from the county's Fox Lake Park Sanctuary through the Fox Lake tract. In conducting outreach, this alternative will expand with a wildlife and habitat diversity focus and will include messaging that targets ethical behavior. Alternative C will expand environmental education efforts. We will work with partners to develop curriculum-based environmental education programs related to wildlife and climate change. We will also work with local schools to conduct on-site environmental education. In addition, we will open the refuge to wildlife observation and photography, and will provide facilities to enhance the visitor experience (e.g., marked foot trails, kiosks at trailheads, and a safe parking area). We will establish foot traffic on existing dikes and roads and will evaluate potential connectivity to regional trail networks. The refuge and any future trails will remain subject to closure for administrative purposes. Commercial photography and tours/guides will be available on a case-by-case basis, permitted through the special use permit process. Access for uses determined to be appropriate and compatible will be by walking, hiking, and bicycling. Bicycling that does not support appropriate and compatible uses, such as mountain biking and off-trail biking, will not be considered an appropriate form of access. Staff will work with partners to evaluate the potential for a primitive weapons' hunt (e.g., bow and muzzle-loader) and for a youth hunt. Species to be considered for hunts will include white-tailed deer and feral hogs.
Administration will expand under the preferred alternative. When the preferred alternative is fully implemented, it will provide for new shared positions with Merritt Island NWR, including a law enforcement officer, maintenance worker, and a ranger. A full-time biological technician will be hired, for a total of 2.5 new positions. The volunteer program will expand as we will utilize volunteers for environmental education and interpretation activities and programs, trail maintenance, outreach, wildlife surveys, expanded exotic control, and cleanups. Facilities and equipment will be added and we will consider developing kiosks, trails, and associated parking to provide safe and secure access from existing county parks to refuge lands. We will also add one or two vehicles and more equipment for exotic plant control activities.
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd
Fish and Wildlife Service, Interior.
Notice of availability.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of our final comprehensive conservation plan (CCP) and finding of no significant impact (FONSI) for the environmental assessment (EA) for Lee Metcalf National Wildlife Refuge Complex (refuge), Stevensville, MT. In this final CCP, we describe how we will manage this refuge for the next 15 years.
You may view or obtain copies of the final CCP and FONSI/EA by any one of the following methods.
Laura King, 406–644–2211, ext. 210;
With this notice, we finalize the CCP process for Lee Metcalf National Wildlife Refuge. We started this process through a notice in the
Lee Metcalf National Wildlife Refuge was established February 4, 1964, and has two purposes:
(1) “[F]or use as an inviolate sanctuary, or for any other management purpose, for migratory birds” (Migratory Bird Conservation Act); and
(2) “for (a) incidental fish and wildlife oriented recreational development, (b) the protection of natural resources, [and] (c) the conservation of endangered species or threatened species” (Refuge Recreation Act).
This refuge is located in Ravalli County, one of the fastest growing counties in the State of Montana, 2 miles north of Stevensville and 25 miles south of Missoula. Although it is one of the nation's smaller refuges, encompassing 2,800 acres, it is one of the few remaining undeveloped areas in the Bitterroot Valley. The refuge lies along the meandering Bitterroot River and is comprised of wet meadow and gallery and riverfront forest habitats and has created and modified wetlands.
Riverfront forest includes early succession tree species such as black cottonwood and sandbar willow that are present near the active channel of the Bitterroot River and next to floodplain drainages. Gallery forest is dominated by cottonwood and ponderosa pine and is present on higher floodplain elevations along natural levees. Over 140,000 visitors come to this refuge annually to view and photograph wildlife, archery deer hunt, walk the refuge trails, or participate in interpretive programs in the indoor and outdoor classrooms. The Refuge provides habitat for raptors, including ospreys, and numerous songbird and waterbird species.
We announce our decision and the availability of the FONSI for the final CCP for Lee Metcalf National Wildlife Refuge in accordance with National
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Refuge Administration Act.
We solicited comments on the draft CCP and the EA for Lee Metcalf National Wildlife Refuge from March 28, 2012 to April 30, 2012 (77 FR 18852; March 28, 2012). During the review period a public meeting was held in Stevensville, Montana, on April 9, 2012. In additional to comments received at this meeting, 33 individual letters and emails were received. The Service reviewed all comments and made two modifications to the final CCP, in addition to clarifying or expanding existing information or recommendations. The responses to all substantive public comments can be found in the appendix of the final CCP.
The draft CCP and final EA included the analyses of three alternatives. After considering the comments we received, we have selected Alternative B for implementation, with the following modifications (beyond clarifying or expanding existing information or recommendations):
• The Kenai Nature Trail will be kept along its current path. However, visitors will have the option of remaining on a more level walking surface on a path above a steeper portion of the trail.
• We will determine if there are viable options for reducing the erosion along the Wildlife Viewing Area, a popular area for visitors. The decision to move forward will be based on cost, the effectiveness on reducing erosion, and impacts on the resource, including the Bitterroot River system.
The U.S. Fish and Wildlife Service would expand and improve the refuge's compatible wildlife-dependent public use programs, in particular the wildlife observation, environmental education, and interpretation programs. The visitor contact area would be expanded into a visitor center with new displays and a combination conference room and environmental education classroom. The refuge would work with Ravalli County staff to designate the county road in the refuge as an auto tour route, which would include pulloffs and some form of interpretation. A seasonal hiking trail would be added, and current trails would be improved for wildlife observation and photography. Interpretation and environmental education programs would be expanded using added staff and volunteers. All public use programs would provide visitors with a consistent message about the purposes and values of the refuge and the mission of the National Wildlife Refuge System.
The refuge staff would be expanded by 3.5 individuals to include an assistant refuge manager (one full-time equivalent), a full-time and a career-seasonal biological science technician (1.5 full-time equivalents), and a visitor services specialist (one full-time equivalent) who would serve as a visitor center manager and volunteer coordinator. Increased research and monitoring, staff, funding, infrastructure, and partnerships would be required to accomplish the goals, objectives, and strategies associated with this alternative. Additional staff and funding would be added depending on the regional priorities for those funds allocated to the U.S. Fish and Wildlife Service for management of lands and waters within the Refuge System.
Fish and Wildlife Service, Interior.
Notice.
We, the U.S. Fish and Wildlife Service, announce a public teleconference/web-based meeting of
You may participate in the teleconference/web-based meeting from your home computer or phone or in person at one of the following locations:
• U.S. Fish and Wildlife, Arcata Office, 1655 Heindon Road, Arcata, CA 95521 Telephone (707) 822–7201; or
• TRRP Office, 1313 South Main Street, Weaverville, CA 96093 Telephone (530) 623–1800.
Elizabeth W. Hadley, Redding Electric Utility, 777 Cypress Avenue, Redding, CA 96001; telephone: 530–339–7327; email:
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we announce that the Trinity Adaptive Management Working Group (TAMWG) will hold a teleconference/web-based meeting.
The TAMWG affords stakeholders the opportunity to give policy, management, and technical input concerning Trinity River (California) restoration efforts to the Trinity Management Council (TMC). The TMC interprets and recommends policy, coordinates and reviews management actions, and provides organizational budget oversight.
• Draft FY 13 Budget,
• Science Program,
• Overview of Peer Review Report,
• Implementation Program,
• Administration, and
• Reconsideration of September 10, 2012, TAMWG meeting issues (see Sept. 10, 2012, agenda at
The final agenda will be posted on the Internet at
Interested members of the public may submit relevant information or questions for the TAMWG to consider during the teleconference. Written statements must be received by the date listed in “Public Input,” so that the information may be available to the TAMWG for their consideration prior to this teleconference. Written statements must be supplied to Elizabeth Hadley in one of the following formats: One hard copy with original signature, and one electronic copy with original signature, and one electronic copy via email (acceptable file formats are Adobe Acrobat PDF, MS Word, PowerPoint, or rich text file).
Registered speakers who wish to expand on their oral statements, or those who wished to speak but could not be accommodated on the agenda, may submit written statements to Elizabeth Hadley up to 7 days after the teleconference.
As time permits, the public may also speak after each agenda item after the chair opens the floor for comment period. No registration beyond initial meeting registration is required for this.
Summary minutes of the teleconference will be maintained by Elizabeth Hadley (see
Bureau of Indian Affairs, Interior.
Notice.
This notice announces that the Bureau of Indian Affairs (BIA) as lead agency, in cooperation with the Pueblo of Jemez, intends to cancel all work on an Environmental Impact Statement (EIS) for the BIA Federal action of approving a 70.277 acre fee-to-trust transfer and casino project located within Doña Ana County, New Mexico.
This cancellation is effective October 2, 2012.
William Walker, Regional Director, (505) 563–3103 or Priscilla Wade, Regional Environmental Protection Specialist, (505) 563–3417, Bureau of Indian Affairs, Southwest Regional Office, 1001 Indian School Road NW., Albuquerque, New Mexico 87104.
The BIA is canceling work on the EIS because the Department of the Interior has denied the application to take the land into trust on September 1, 2011. The Notice of Intent to prepare the Draft EIS, which included a description of the proposed action, was published in the
This notice is published pursuant to section 1503.1 of the Council of Environmental Quality Regulations (40 CFR parts 1500 through 1508) and Department of the Interior Regulations (43 CFR part 46), implementing the procedural requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4371
Bureau of Land Management, Interior.
Notice of filing of plats of survey.
The Bureau of Land Management (BLM) will file the plat of survey of the lands described below in the BLM Montana State Office, Billings, Montana, on November 1, 2012.
Protests of the survey must be filed before November 1, 2012 to be considered.
Protests of the survey should be sent to the Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669.
Marvin Montoya, Cadastral Surveyor, Branch of Cadastral Survey, Bureau of Land Management, 5001 Southgate Drive, Billings, Montana 59101–4669, telephone (406) 896–5124 or (406) 896–5009,
This survey was executed at the request of the Regional Director, Bureau of Indian Affairs, Rocky Mountain Region, Billings, Montana, and was necessary to determine boundaries of Federal (Bureau of Land Management) and trust lands.
The lands we surveyed are:
The plat, in one sheet, representing the dependent resurvey of the south boundary of the Fort Belknap Indian Reservation, through Township 25 North, Range 24 East, Principal Meridian, Montana, was accepted September 18, 2012.
We will place a copy of the plat, in one sheet, and related field notes we described in the open files. They will be available to the public as a matter of information. If the BLM receives a protest against this survey, as shown on this plat, in one sheet, prior to the date of the official filing, we will stay the filing pending our consideration of the protest. We will not officially file this plat, in one sheet, until the day after we have accepted or dismissed all protests and they have become final, including decisions or appeals.
43 U.S.C. Chap. 3.
Office of Surface Mining Reclamation and Enforcement.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing its intention to request renewed approval for the collection of information for two technical training program course effectiveness evaluation forms. This collection request has been forwarded to the Office of Management and Budget (OMB) for review and approval. The information collection request describes the nature of the information collection and the expected burden and cost.
OMB has up to 60 days to approve or disapprove the information collections but may respond after 30 days. Therefore, public comments should be submitted to OMB by November 1, 2012, in order to be assured of consideration.
Submit comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Department of Interior Desk Officer, by telefax at (202) 395–5806 or via email to
To receive a copy of the information collection request contact John Trelease at (202) 208–2783, or electronically at
The Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104–13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has submitted a request to OMB to renew its approval of the collection of information contained in two technical training program course effectiveness evaluation forms. OSM is requesting a 3-year term of approval for each information collection activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection of information is 1029–0110. Completion and submission of these forms is voluntary.
As required by 5 CFR 1320.8(d), a
Send comments on the need for the collections of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collections; and ways to minimize the information collection burdens on respondents, such as use of automated means of collections of the information, to the following addresses. Please refer to OMB control number 1029–0110.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Office of Surface Mining Reclamation and Enforcement.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing its intention to seek renewed authority to collect information for surface coal mining and reclamation operations on Federal lands. This collection request has been forwarded to the Office of Management and Budget (OMB) for review and comment. The information collection request describes the nature of the information collection and the expected burden and cost.
OMB has up to 60 days to approve or disapprove the information collection request but may respond after 30 days. Therefore, public comments should be submitted to OMB by November 1, 2012, in order to be assured of consideration.
Comments may be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget, Department of the Interior Desk Officer, via email at
To receive a copy of the information collection request contact John Trelease at (202) 208–2783, or electronically at
The Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104–13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has submitted a request to OMB to renew its approval of the collections of information contained in 30 CFR Part 740, Surface Coal Mining and Reclamation Operations on Federal Lands. OSM is requesting a 3-year term of approval for this information collection activity. Responses are required to obtain a benefit.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection of information is 1029–0027.
As required under 5 CFR 1320.8(d), a
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information, to the places listed under
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Acting Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Speculative Product Design, LLC on September 26, 2012. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain cases for portable electronic devices. The complaint names as respondents Anbess Electronices Co. Ltd. of China; Alibaba.com, Limited of China; Alibaba.com, Inc. of Santa Clara, CA; Aliexpress, Ltd. of Santa Clara, CA; Biying Trading Co., Ltd of Santa Clara, CA; BodyGlove International, LLC of Redondo Beach, CA; Fellowes, Inc. of Itsaca, IL; Jie Sheng Technology of China; JWIN Electronics Corp., dba iLuv of Port Washington, NY; Project Horizon, Inc. dba InMotion Entertainment of Jacksonville, FL; ROCON Digital Technology Corp. of China; Shenzhen Huafeng Technology Co., Ltd. of China; Superior Communications, Inc., dba PureGear of Irwindale, CA; SW-Box.com aka Cellphonezone Limited of Hong Kong; Trait Technology (Shenzhen) Co., Limited dba Trait-Tech of China and Hongkong Wexun Ltd., Wexun Tech (Hong Kong) Co., Ltd. of China.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) Identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) Identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) Indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) Explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 2917”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
On September 25, 2012, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Arizona in the lawsuit entitled
The United States filed this lawsuit under the Clean Air Act. The United States' complaint seeks injunctive relief and civil penalties for violations of regulations promulgated by the Maricopa County Air Quality Department concerning fugitive dust emissions. The complaint alleges that the violations occurred at the defendant's aggregate mining and processing and concrete production facility in Mesa, Arizona. The Consent Decree requires the defendant to pay a $90,000 civil penalty and to implement injunctive relief at similar, active
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $10.25 (25 cents per page reproduction cost) payable to the United States Treasury.
Pursuant to Title 21 Code of Federal Regulations 1301.34(a), this is notice that on July 18, 2012, Fisher Clinical Services, Inc., 7554 Schantz Road, Allentown, Pennsylvania 18106, made application by renewal to the Drug Enforcement Administration (DEA) for registration as an importer of Noroxymorphone (9668), a basic class of controlled substance in schedule II.
The company plans to import the listed substance for analytical research and clinical trials.
The import of the above listed basic class of controlled substance would be granted only for analytical testing and clinical trials. This authorization does not extend to the import of a finished FDA approved or non-approved dosage form for commercial distribution in the United States.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic class of controlled substance listed in schedules I or II, which fall under the authority of section 1002(a)(2)(B) of the Act [21 U.S.C. 952(a)(2)(B)] may, in the circumstances set forth in 21 U.S.C. 958(i), file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than November 1, 2012.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice published in the
By Notice dated July 17, 2012, and published in the
The company plans to import narcotic raw materials for manufacturing and further distribution to its customers.
The company is registered with DEA as a manufacturer of several controlled substances that are manufactured from opium raw, and poppy straw concentrate.
The company plans to import an intermediate form of Tapentadol (9780) to bulk manufacture Tapentadol for distribution to its customers.
Comments and requests for hearings on applications to import narcotic raw material are not appropriate, 72 FR 3417 (2007). Regarding Tapentadol, no comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Cody Laboratories, Inc., to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971.
DEA has investigated Cody Laboratories, Inc., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic classes of controlled substances listed.
By Notice dated July 2, 2012, and published in the
The company plans to import reference standards for sale to researchers and analytical labs.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a), and determined that the registration of United States Pharmacopeial Convention to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971.
DEA has investigated United States Pharmacopeial Convention to ensure that the company's registration is consistent with the public interest. The investigation has included inspection, and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic classes of controlled substances listed.
Pursuant to 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on July 26, 2012, Chemic Laboratories, Inc., 480 Neponset Street, Building 7, Canton, Massachusetts 02021, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of Cocaine (9041), a basic class of controlled substance listed in schedule II.
The company plans to manufacture small quantities of the above listed controlled substance for distribution to its customers for the purpose of research.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substance, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than December 3, 2012.
Pursuant to 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on July 12, 2012, Morton Grove Pharmaceuticals, 6451 Main Street, Morton Grove, Illinois 60053–2633, made application by letter to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of Gamma Hydroxybutyric Acid (2010), a basic class of controlled substance listed in schedule I.
The company plans to manufacture the listed controlled substance for distribution to its customers.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substance, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than December 3, 2012.
Pursuant to 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on August 2, 2012, Sigma Aldrich Research Biochemicals, Inc., 1–3 Strathmore Road, Natick, Massachusetts 01760–2447, made application by letter to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture reference standards.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substances, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than December 3, 2012.
Pursuant to 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on July 10, 2012, AMPAC Fine Chemicals, LLC., Highway 50 and Hazel Avenue, Building 05001, Rancho Cordova, California 95670, made application by letter to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of Tapentadol (9780), a basic class of controlled substance listed in schedule II.
The company plans to manufacture the listed controlled substance for distribution to its customers.
Any other such applicant, and any person who is presently registered with DEA to manufacture such substance, may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than December 3, 2012.
By Notice dated June 18, 2012, and published in the
The company plans to manufacture bulk API, for distribution to its customers. The bulk 2,5-Dimethoxyamphetamine will be used for conversion into non-controlled substances.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of ISP, Inc., to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated ISP, Inc., to ensure that the company's registration is consistent with the public interest.
The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated June 4, 2012, and published in the
The company plans to manufacture small quantities of the listed controlled substances to make reference standards for distribution to their customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a), and determined that the registration of Apertus Pharmaceuticals, LLC., to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time.
DEA has investigated Apertus Pharmaceuticals, LLC., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history.
Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33,
All meetings are held at 2:30 p.m.
Board Agenda Room, No. 11820, 1099 14th St. NW., Washington DC 20570.
Closed.
Pursuant to 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition * * * of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
Lester A. Heltzer, Executive Secretary, (202) 273–1067.
National Transportation Safety Board.
Notice.
Notice is hereby given of the appointment of members of the National Transportation Safety Board, Performance Review Board (PRB).
Emily T. Carroll, Chief, Human Resources Division, Office of Administration, National Transportation Safety Board, 490 L'Enfant Plaza SW., Washington, DC 20594–0001, (202) 314–6233.
Section 4314(c)(1) through (5) of Title 5, United States Code requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management, one or more SES Performance Review Boards. The board reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor and considers recommendations to the appointing authority regarding the performance of the senior executive.
The following have been designated as members of the Performance Review Board of the National Transportation Safety Board:
Pursuant to Section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from September 6, 2012, to September 19, 2012. The last biweekly notice was published on September 14, 2012 (77 FR 56877).
You may access information and comment submissions related to this document, which the NRC possesses and are publicly available, by searching on
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Please refer to Docket ID NRC–2012–0226 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and are publicly available, by any of the following methods:
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Please include Docket ID NRC–2012–0226 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed. The NRC posts all comment submissions at
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in section 50.92 of Title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in the NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC guidance available on the NRC's public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRCs' Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the following three factors in 10 CFR 2.309(c)(1): (i) The information upon which the filing is based was not previously available; (ii) the information upon which the filing is based is materially different from information previously available; and (iii) the filing has been submitted in a timely fashion based on the availability of the subsequent information.
For further details with respect to this license amendment application, see the application for amendment which is available for public inspection at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through ADAMS in the NRC Library at
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed license amendment request provides the report which describes the reactor vessel internals inspection plan. The report also provides a description of the inspection plan as it relates to the management of aging effects consistent with previous commitments. The inspection plan is based on technical report MRP–227, Revision 0, “Pressurized Water Reactors Internals Inspection and Evaluation Guidelines” and the additional criteria stated in the NRC staff's safety evaluation of this technical report. The inspection plan contains a discussion of operational experience, time-limited aging analyses, and relevant existing programs.
The licensee's Reactor Vessel Internals Aging Management Program includes the inspection plan and demonstrates that the program adequately manages the effects of aging for reactor vessel internal components and establishes the basis for providing reasonable assurance that the reactor vessel internal components will remain functional through the license renewal period of extended operation.
This license amendment request provides an inspection plan based on industry work and experiences as agreed to in Duke Energy's license renewal commitments for reactor vessel internals inspection. It is not an accident initiator.
Therefore, the probability or consequences of an accident previously evaluated is not significantly increased.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed reactor vessel internals inspection plan does not change the methods governing normal plant operation, nor are the methods utilized to respond to plant transients altered. The revised inspection plan is not an accident initiator an event initiator. No new initiating events or transients result from the use of the reactor vessel internals inspection plan.
Therefore, the possibility of a new or different kind of accident from any kind of accident previously evaluated is not created.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed safety limits have been preserved. The license amendment request is for review and approval for the reactor vessel internals inspection plan that Duke Energy committed to provide prior to commencing inspections.
Therefore, this request does not involve a significant reduction in a margin of safety.
The NRC staff has determined that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
This change involves the temporary addition of a 75-day Completion Time for Technical Specification (TS) 3.8.1 Required Action C.2.2.5 associated with restoring compliance with TS Limiting Condition for Operation (LCO) 3.8.1.C. During the time that one Keowee Hydroelectric Unit (KHU) is inoperable for > 72 hours, a Lee Combustion Turbine (LCT) will be energizing both standby buses, two offsite power sources will be maintained available, and maintenance on electrical distribution systems will not be performed unless necessary. In addition, risk significant systems (Emergency Feedwater System [EFW] and Standby Shutdown Facility [SSF]) will be verified operable prior to entry into the 75-day Completion Time. The temporary 75-day Completion Time will decrease the likelihood of an unplanned forced shutdown of all three Oconee Units and the potential safety consequences and operational risks associated with that action. Avoiding this risk offsets the risks associated with having a design basis event during the temporary 75-day completion time for having one KHU inoperable.
The temporary addition of the 75-day Completion Time does not involve:
(1) A physical alteration to the Oconee Units; (2) the installation of new or different equipment; (3) operating any installed equipment in a new or different manner; or (4) a change to any set points for parameters which initiate protective or mitigation action.
There is no adverse impact on containment integrity, radiological release pathways, fuel design, filtration systems, main steam relief valve set points, or radwaste systems. No new radiological release pathways are created.
The consequences of an event occurring during the temporary 75-day Completion Time are the same as those that would occur during the existing Completion Time. Duke Energy reviewed the Probabilistic Risk Assessment (PRA) to gain additional insights concerning the configuration of ONS with one KHU. The results of the risk analysis show a risk improvement if no maintenance is performed on the SSF, EFW System, and AC Power System. The results of the risk analysis show a small risk increase using the average nominal maintenance unavailability values for the SSF, EFW System, and AC Power System. By limiting maintenance, the risk results are expected to be between these two extremes (
Therefore, the probability or consequences of an accident previously evaluated is not significantly increased.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
This change involves the temporary addition of a 75-day Completion Time for TS 3.8.1 Required Action C.2.2.5 associated with restoring compliance with TS LCO 3.8.1.C. During the time period that one KHU is inoperable, the redundancy requirement for the emergency power source will be fulfilled by an LCT. Compensatory measures previously specified will be in place to minimize electrical power system vulnerabilities.
The temporary 75-day Completion Time does not involve a physical effect on the Oconee Units, nor is there any increased risk of an Oconee Unit trip or reactivity excursion. No new failure modes or credible accident scenarios are postulated from this activity.
Therefore, the possibility of a new or different kind of accident from any kind of accident previously evaluated is not created.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
This change involves the temporary addition of a 75-day Completion Time for TS 3.8.1 Required Action C.2.2.5 associated with restoring compliance with TS LCO 3.8.1.C. During the time period that one KHU is inoperable, the redundancy requirement for the emergency power source will be fulfilled by an LCT. Compensatory measures previously specified will be in place to minimize electrical power system vulnerabilities.
The proposed TS change does not involve: (1) A physical alteration of the Oconee Units; (2) the installation of new or different equipment; (3) operating any installed equipment in a new or different manner; (4) a change to any set points for parameters which initiate protective or mitigation action; or (5) any impact on the fission product barriers or safety limits.
Therefore, this request does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment does not significantly increase the probability or consequences of an accident. The recirculation system discharge bypass valve normal position has been changed from “open” to “closed.” The safety function of the discharge bypass valves is to be closed to support accident mitigation. Placing the discharge bypass valves in the normally closed position is consistent with station safety analysis and therefore does not have a significant impact on the probability or consequence of an accident.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change does not involve any new modes of operation. The recirculation system discharge bypass valve normal position has been changed from “open” to “closed.” The valves previously had a safety function to close and are designed to meet all code requirements in the closed position. No new accident precursors are introduced. Recirculation pump operating procedures have been revised consistent with vendor guidance. No new or different types of equipment will be installed. The methods governing plant operation remain bounded by current safety analysis assumptions.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The recirculation system discharge bypass valve normal position has been changed from “open” to “closed.” With the valves normally in the closed position safety margins are maintained. The station safety analysis results are unchanged and margin to regulatory limits is not affected. Therefore, the proposed amendment will not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change allows a delay time before declaring supported Technical Specification (TS) systems inoperable when the associated snubber(s) cannot perform its required safety function. Entrance into Actions or delaying entrance into Actions is not an initiator of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The consequences of an accident while relying on the delay time allowed before declaring a TS supported system inoperable and taking its Conditions and Required Actions are no different than the consequences of an accident under the same plant conditions while relying on the existing TS supported system Conditions and Required Actions. Therefore, the consequences of an accident previously evaluated are not significantly increased by this change.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change allows a delay time before declaring supported TS systems inoperable when the associated snubber(s) cannot perform its required safety function. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change allows a delay time before declaring supported TS systems inoperable when the associated snubber(s) cannot perform its required safety function. The proposed change restores an allowance in the pre-Improved Standard Technical Specifications (ISTS) conversion TS that was unintentionally eliminated by the conversion. The pre-ISTS TS were considered to provide an adequate margin of safety for plant operation, as does the post-ISTS conversion TS.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendments do not change or modify the fuel, fuel handling processes, fuel storage racks, number of fuel assemblies that may be stored in the spent fuel pool (SFP), decay heat generation rate, or the spent fuel pool cooling and cleanup system. The proposed TS change will allow core alterations, fuel movement, and positive reactivity changes in Modes 5 and 6 subject to the conditions specified in the
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed amendments do not change or modify the fuel, fuel handling processes, fuel racks, number of fuel assemblies that may be stored in the pool, decay heat generation rate, or the spent fuel pool cooling and cleanup system. The proposed TS change will allow core alterations, fuel movement, and positive reactivity changes in Modes 5 and 6 subject to the conditions specified in the footnote that actions have been taken to permit indefinite system/component operation and the system is in recirculation mode. The proposed change corrects a clerical error by annotating TS 3.7.5 Action “c” with a modified footnote consistent with the stated intent of the original license submittals.
Therefore, it is concluded that this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed amendments do not change or modify the fuel, fuel handling processes, fuel racks, number of fuel assemblies that may be stored in the pool, decay heat generation rate, or the spent fuel pool cooling and cleanup system. Therefore, the proposed amendments have no impact to the existing margin of safety for subcriticality required by 10 CFR 50.68(b)(4).
Therefore, it is concluded that the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or
Operation of DAEC in accordance with the proposed amendment does not increase the probability or consequences of accidents previously evaluated. The Updated Final Safety Analysis Report (UFSAR) documents the analyses of design basis accidents (DBAs) at DAEC. The proposed amendment does not adversely affect accident initiators nor alter design assumptions, conditions, or configurations of the facility and does not adversely affect the ability of structures, systems, and components (SSCs) to perform their design function. SSCs required to safely shutdown the reactor and to maintain it in a safe shutdown (SSD) condition will remain capable of performing their design functions.
The purpose of this amendment is to permit DAEC to adopt a new fire protection licensing basis which complies with the requirements in 10 CFR 50.48(a) and (c) and the guidance in Revision 1 of Regulatory Guide (RG) 1.205. The NRC considers that National Fire Protection Association (NFPA) 805 provides an acceptable methodology and performance criteria for licensees to identify fire protection systems and features that are an acceptable alternative to the 10 CFR Part 50, Appendix R fire protection features (69 FR 33536, June 16, 2004). Engineering analyses, in accordance with NFPA 805, have been performed to demonstrate that the risk-informed, performance-based (RI–PB) requirements per NFPA 805 have been met.
NFPA 805, taken as a whole, provides an acceptable alternative to 10 CFR 50.48(b), satisfies 10 CFR 50.48(a) and General Design Criterion (GDC) 3 of Appendix A to 10 CFR Part 50, and meets the underlying intent of the NRC's existing fire protection regulations and guidance, and achieves defense-in-depth (DID) and the goals, performance objectives, and performance criteria specified in Chapter 1 of the standard. The small increase in the net core damage frequency associated with this LAR submittal is consistent with the Commission's Safety Goal Policy. Additionally, 10 CFR 50.48(c) allows self approval of fire protection program changes post-transition. If there are any increases post-transition in core damage frequency (CDF) or risk, the increase will be small and consistent with the intent of the Commission's Safety Goal Policy.
Based on this, the implementation of this amendment does not significantly increase the probability of any accident previously evaluated. Equipment required to mitigate an accident remains capable of performing the assumed function. Therefore, the consequences of any accident previously evaluated are not significantly increased with the implementation of this amendment.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any kind of accident previously evaluated?
Operation of DAEC in accordance with the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated. Any scenario or previously analyzed accident with offsite dose was included in the evaluation of DBAs documented in the UFSAR. The proposed change does not alter the requirements or function for systems required during accident conditions. Implementation of the new fire protection licensing basis which complies with the requirements in 10 CFR 50.48(a) and (c) and the guidance in Revision 1 of RG 1.205 will not result in new or different accidents.
The proposed amendment does not adversely affect accident initiators nor alter design assumptions, conditions, or configurations of the facility. The proposed amendment does not adversely affect the ability of SSCs to perform their design function. SSCs required to safely shut down the reactor and maintain it in a safe shutdown condition remain capable of performing their design functions.
The purpose of this amendment is to permit DAEC to adopt a new fire protection licensing basis which complies with the requirements in 10 CFR 50.48(a) and (c) and the guidance in Revision 1 of RG 1.205. The NRC considers that NFPA 805 provides an acceptable methodology and performance criteria for licensees to identify fire protection systems and features that are an acceptable alternative to the 10 CFR Part 50, Appendix R fire protection features (69 FR 33536, June 16, 2004).
The requirements in NFPA 805 address only fire protection and the impacts of fire on the plant that have already been evaluated. Based on this, the implementation of this amendment does not create the possibility of a new or different kind of accident from any kind of accident previously evaluated. The proposed changes do not involve new failure mechanisms or malfunctions that can initiate a new accident.
Therefore, the possibility of a new or different kind of accident from any kind of accident previously evaluated is not created with the implementation of this amendment.
3. Does the proposed amendment involve a significant reduction in the margin of safety?
Operation of DAEC in accordance with the proposed amendment does not involve a significant reduction in the margin of safety. The proposed amendment does not alter the manner in which safety limits, limiting safety system settings or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed amendment does not adversely affect existing plant safety margins or the reliability of equipment assumed to mitigate accidents in the UFSAR. The proposed amendment does not adversely affect the ability of SSCs to perform their design function. SSCs required to safely shut down the reactor and to maintain it in a safe shutdown condition remain capable of performing their design function.
The purpose of this amendment is to permit DAEC to adopt a new fire protection licensing basis which complies with the requirements in 10 CFR 50.48(a) and (c) and the guidance in Revision 1 of RG 1.205. The NRC considers that NFPA 805 provides an acceptable methodology and performance criteria for licensees to identify fire protection systems and features that are an acceptable alternative to the 10 CFR Part 50, Appendix R fire protection features (69 FR 33536, June 16, 2004). Engineering analyses, which may include engineering evaluations, probabilistic safety assessments, and fire modeling calculations, have been performed to demonstrate that the performance-based methods do not result in a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change will remove Note 3 from Surveillance Requirement (SR) 3.4.11.1 and delete SR 3.4.11.4 from the Joseph M. Farley Nuclear Plant (FNP) Unit 2 Technical Specifications (TS). SR 3.4.11.1 Note 3 was
SR 3.4.11.1 Note 3 and SR 3.4.11.1 were applicable for the remainder of operating Cycle 16 which has been completed; FNP Unit 2 is currently operating in Cycle 22. Note 3 to SR 3.4.11.1 and SR 3.4.11.4 are no longer applicable; therefore, this proposed change is administrative in nature.
This proposed administrative license amendment does not impact any accident initiators, analyzed events, or assumed mitigation of accident or transient events. The proposed change does not involve the addition or removal of any equipment or any design changes to the facility. The proposed change does not affect any plant operations, design function, or analysis that verifies the capability of structures, systems, and components (SSCs) to perform a design function. The proposed change does not change any of the accidents previously evaluated in the Updated Final Safety Analysis Report (UFSAR). The proposed change does not affect SSCs, operating procedures, and administrative controls that have the function of preventing or mitigating any of these accidents.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
This proposed administrative license amendment does not affect actual plant equipment or accident analyses. The proposed change will not change the design function or operation of any SSCs nor result in any new failure mechanisms, malfunctions, or accident initiators not considered in the design and licensing bases. The proposed amendment does not impact any accident initiators, analyzed events, or assumed mitigation of accident or transient events.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
As required by 10 CFR 50.91(a), Southern Nuclear Operating Company (SNC) has evaluated the proposed changes to the FNP TS using the criteria in 10 CFR 50.92 and has determined that the proposed changes do not involve a significant hazards consideration. An analysis of the issue of no significant hazards consideration is below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment involves changes to the TS requirements to incorporate new pressure and temperature limit curves that were determined with an NRC approved methodology for the LTOP system, as well as incorporating that methodology into the TS. The pressure and temperature limit curves preserve the integrity of the reactor vessel. The LTOP System provides overpressure protection during operation at low RCS temperatures. In addition, this amendment proposes to adopt the NRC approved and TSTF 213–A and TSTF–419–A. Adoption of these TSTFs will relocate the LTOP applicability temperature from the TS to the PTLR and will eliminate redundant references in Sections 1.1 and 5.6.6 of the TS. Lastly, the proposed change includes clarifications to the LTOP System TS requirements that are consistent with the FNP design and preserve the applicable safety analyses. The proposed changes are based on NRC approved methods, and NRC approved changes to the Standard TS for Westinghouse Plants.
The proposed change to the TS does not affect the initiators of any analyzed accident. In addition, operation in accordance with the proposed TS change ensures that the previously evaluated accidents will continue to be mitigated as analyzed. Thus, the proposed change does not adversely affect the design function or operation of any structures, systems, and components important to safety.
Therefore, it is concluded that the proposed not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed amendment involves changes to the TS requirements to incorporate new pressure and temperature limit curves that were determined with an NRC approved methodology for the LTOP system, as well as incorporating that methodology into the TS. The pressure and temperature limit curves preserve the integrity of the reactor vessel. The LTOP System provides overpressure protection during operation at low RCS temperatures. In addition, this amendment proposes to adopt the NRC approved TSTF–233–A and TSTF–419–A Adoption of these TSTFs will relocate the L TOP applicability temperature from the TS to the PTLR and will eliminate redundant references in Sections 1.1 and 5.6.6 of the TS. Lastly, the proposed change includes clarifications to the LTOP System TS requirements that are consistent with the FNP design and preserve the applicable safety analyses. The proposed changes are based on NRC approved methods and NRC approved changes to the Standard TS for Westinghouse Plants. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). The proposed change does not create any new failure modes for existing equipment or any new limiting single failures. Additionally the proposed change does not involve a change in the methods governing normal plant operation and all safety functions will continue to perform as previously assumed in accident analyses. The pressure and temperature limit curves will continue to preserve the integrity of the reactor vessel. The LTOP System will continue to ensure that the appropriate fracture toughness margins are maintained to protect against reactor vessel failure during low temperature operation. Thus, the proposed change does not adversely affect the design function or operation of any structures, systems, and components important to safety.
Therefore, it is concluded that the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed amendment involves changes to the TS requirements to incorporate new pressure and temperature limit curves that were determined with an NRC approved methodology for the LTOP system, as well as incorporating that methodology into the TS. The pressure and temperature limit curves preserve the integrity of reactor vessel. The LTOP System provides overpressure protection during operation at low RCS temperatures. In addition, this amendment proposes to adopt the NRC approved TSTF–233–A and TSTF–419–A. Adoption of these TSTFs will relocate the LTOP applicability temperature from the TS to the PTLR and will eliminate redundant references in Sections 1.1 and 5.6.6 of the TS. Lastly, the proposed change
The proposed change will not adversely affect the operation of plant equipment or the function of equipment assumed in the accident analysis. The pressure-temperature limit curves and LTOP System applicability temperature have been determined in accordance with NRC approved methodologies. The proposed changes to the LTOP System TS requirements remain consistent with the applicable LTOP System design, and preserve the applicable safety analysis assumptions. Additionally, no changes are made to the LTOP System function as assumed in the applicable safety analysis.
Therefore, it is concluded that proposed change does not involve a significant reduction in a margin of safety.
Based upon the above analysis, SNC concludes that the proposed amendment does not involve a significant hazards consideration, under the standards set forth in 10 CFR 50.92(c), “Issuance of Amendment,” and accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes revise the actions and allowed outage times of the neutron flux (extended range) and neutron flux—startup rate (extended range) accident monitoring instrumentation. The instrumentation is not an initiator of any accident previously evaluated. As a result, the probability of any accident previously evaluated is not significantly increased by these proposed changes. The Technical Specifications continue to require the instrumentation to be operable. Therefore, the neutron flux (extended range) and neutron flux—startup rate (extended range) instrumentation will continue to provide sufficient information on selected plant parameters to monitor and assess these variables following an accident. The consequences of an accident during the extended allowed outage times are the same as the consequences during the current allowed outage time. As a result, the consequences of any accident previously evaluated are not significantly increased by these proposed changes.
Therefore, the proposed changes do not increase the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes do not alter the design, physical configuration, or mode of operation of the plant. The neutron flux (extended range) and neutron flux—startup rate (extended range) accident monitoring instrumentation is not an initiator of any accident previously evaluated. No changes are being made to the plant that would introduce any new accident causal mechanisms. The proposed changes do not affect any other plant equipment.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously analyzed.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed changes do not change the operation, function, or modes of the plant or equipment operation. The proposed changes do not change the level of assurance that the neutron flux (extended range) and neutron flux—startup rate (extended range) accident monitoring instrumentation will be available to perform its function. The proposed changes provide a more appropriate time to restore the inoperable channel(s) to operable status, and only apply when one or more channels of the required instrument are inoperable. The additional time to restore an inoperable channel to operable status is appropriate based on the low probability of an event requiring a neutron flux (extended range) accident monitoring instrument during the interval, providing a reasonable time for repair, and other means which may be available to obtain the required information.
Therefore, the proposed changes do not result in a reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the request for amendments involves no significant hazards consideration.
TVA will implement a documentation change to require the spent fuel pit cooling pump enclosure caps as a permanent plant feature for flooding protection, and will install permanent plant modifications to provide adequate flooding protection with respect to the DBF level for the diesel generator building, by March 31, 2013.
1. Does the proposed amendment involve a significant increase in the probability or consequence of an accident previously evaluated?
Although the proposed changes require some documentation and physical changes to plant systems, structures, or components to add flooding protection features to restore or gain additional margin between the revised DBF elevations and limiting safety-related systems, structures, and components; implementation of these changes does not (1) prevent the safety function of any safety-related system, structure, or component during an external flood; (2) alter, degrade, or prevent action described or assumed in any accident described in the SQN Units 1 and 2 UFSAR from being performed since the safety-related systems, structures, or components remain adequately protected from the effects of external floods; (3) alter any assumptions previously made in evaluating radiological consequences; or (4) affect the integrity of any fission product barrier.
Therefore, this proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes do not introduce any new accident causal mechanisms, nor do they impact any plant systems that are potential accident initiators.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed changes do not alter the permanent plant design, including instrument set points, that is the basis of the assumptions contained in the safety analyses. However, documentation changes and permanent plant modifications are planned to restore or gain additional margin between the revised DBF elevations and limiting safety-related systems, structures, and components. Although the results of the updated hydrologic analysis increase the DBF elevations required to be considered in the flooding protection of safety-related systems, structures, or components during external flooding events, the proposed changes do not prevent any safety-related SSCs from performing their required functions during an external flood considering the temporary compensatory measures in place and upon completion of planned documentation changes and permanent plant modifications. Consistent with existing regulatory guidance, including regulatory recommendations and discussions regarding calibration of hydrology models using historical flood data and consideration of sensitivity analyses, the hydrologic analysis is considered to be a reasonable best estimate that has accounted for uncertainties using the best data available.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change revises the Steam Generator (SG) Program to modify the frequency of verification of SG tube integrity and SG tube sample selection. A steam generator tube rupture (SGTR) event is one of the design basis accidents that are analyzed as part of a plant's licensing basis. The proposed SG tube inspection frequency and sample selection criteria will continue to ensure that the SG tubes are inspected such that the probability of an SGTR is not increased. The consequences of an SGTR are bounded by the conservative assumptions in the design basis accident analysis. The proposed change will not cause the consequences of an SGTR to exceed those assumptions. The proposed change to reporting requirements and clarifications of the existing requirements have no affect on the probability or consequences of SGTR.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Does the change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes to the Steam Generator Program will not introduce any adverse changes to the plant design basis or postulated accidents resulting from potential tube degradation. The proposed change does not affect the design of the SGs or their method of operation. In addition, the proposed change does not impact any other plant system or component.
Therefore, the possibility for a new or different kind of accident from any accident previously evaluated is not created.
Does this change involve a significant reduction in a margin of safety?
The SG tubes in pressurized water reactors are an integral part of the reactor coolant pressure boundary and, as such, are relied upon to maintain the primary system's pressure and inventory. As part of the reactor coolant pressure boundary, the SG tubes are unique in that they are also relied upon as a heat transfer surface between the primary and secondary systems such that residual heat can be removed from the primary system. In addition, the SG tubes also isolate the radioactive fission products in the primary coolant from the secondary system. In summary, the safety function of an SG is maintained by ensuring the integrity of its tubes. Steam generator tube integrity is a function of the design, environment, and the physical condition of the tube. The proposed change does not affect tube design or operating environment. The proposed change will continue to require monitoring of the physical condition of the SG tubes such that there will not be a reduction in the margin of safety compared to the current requirements.
Therefore, it is concluded that this change does not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to the WCNOC Cyber Security Plan Implementation Schedule is administrative in nature. This change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the structures, systems, and components (SSCs) relied upon to mitigate the consequences of postulated accidents, and has no impact on the probability or consequences of an accident previously evaluated.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change to the WCNOC Cyber Security Plan Implementation Schedule is administrative in nature. This proposed change does not alter accident analysis assumptions, add any initiators, or affect the function of plant systems or the manner in which systems are operated, maintained, modified, tested, or inspected. The proposed change does not require any plant modifications which affect the performance capability of the SSCs relied upon to mitigate the consequences of postulated accidents, and does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Plant safety margins are established through limiting conditions for operation, limiting safety system settings, and safety limits specified in the technical specifications. The proposed change to the WCNOC Cyber Security Plan Implementation Schedule is administrative in nature. Since the proposed change is administrative in nature, there is no change to these established safety margins.
Therefore the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the NRC's Public Document Room (PDR), located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through the Agencywide Documents Access and Management System (ADAMS) in the NRC Library at
The supplement dated April 2, 2012, provided an application-specific no significant hazards determination which was incorporated into the U.S. Nuclear Regulatory Commission (NRC) staff's original proposed no significant hazards
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 4, 2012.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 10, 2012.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 7, 2012.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated September 10, 2012.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 6, 2012.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application for the amendment complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Because of exigent or emergency circumstances associated with the date the amendment was needed, there was not time for the Commission to publish, for public comment before issuance, its usual notice of consideration of issuance of amendment, proposed no significant hazards consideration determination, and opportunity for a hearing.
For exigent circumstances, the Commission has either issued a
In circumstances where failure to act in a timely way would have resulted, for example, in derating or shutdown of a nuclear power plant or in prevention of either resumption of operation or of increase in power output up to the plant's licensed power level, the Commission may not have had an opportunity to provide for public comment on its no significant hazards consideration determination. In such case, the license amendment has been issued without opportunity for comment. If there has been some time for public comment but less than 30 days, the Commission may provide an opportunity for public comment. If comments have been requested, it is so stated. In either event, the State has been consulted by telephone whenever possible.
Under its regulations, the Commission may issue and make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is involved.
The Commission has applied the standards of 10 CFR 50.92 and has made a final determination that the amendment involves no significant hazards consideration. The basis for this determination is contained in the documents related to this action. Accordingly, the amendments have been issued and made effective as indicated.
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the application for amendment, (2) the amendment to Facility Operating License or Combined License, as applicable, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment, as indicated. All of these items are available for public inspection at the NRC's Public Document Room (PDR), located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available documents created or received at the NRC are accessible electronically through the Agencywide Documents Access and Management System (ADAMS) in the NRC Library at
The Commission is also offering an opportunity for a hearing with respect to the issuance of the amendment. Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1–F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, and electronically on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing. Since the Commission has made a final determination that the amendment involves no significant hazards consideration, if a hearing is requested, it will not stay the effectiveness of the amendment. Any hearing held would take place while the amendment is in effect.
All documents filed in the NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC guidance available on the NRC's public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
The Commission's related evaluation of the amendment, finding of emergency circumstances, and final determination of no significant hazards consideration are contained in a Safety Evaluation dated August 10, 2012.
For The Nuclear Regulatory Commission.
Overseas Private Investment Corporation (OPIC).
Request for approval.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to publish a Notice in the
This 30 day notice is to inform the public, that this collection is being submitted to OMB for approval.
Copies of the subject form may be obtained from the Agency submitting officer.
OPIC Agency Submitting Officer: Essie Bryant, Record Manager, Overseas Private Investment Corporation, 1100 New York Avenue NW., Washington, DC 20527; (202) 336–8563.
U.S. Office of Personnel Management.
30-Day Notice and request for comments.
The Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on a revised information collection request (ICR) 3206–0082, Presidential Management Fellows (PMF) Application. As required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35), as amended by the Clinger-Cohen Act (Pub. L. 104–106), OPM is soliciting comments for this collection on behalf of the Office of Management and Budget. The information collection was previously published in the
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, 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 collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until November 1, 2012. This process is conducted in accordance with 5 CFR 1320.1.
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Room 10235, Washington, DC 20503, Attention: OPM Desk Officer or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Room 10235, Washington, DC 20503, Attention: OPM Desk Officer or sent via electronic mail to
Executive Order 13562, Recruiting and Hiring Students and Recent Graduates, and implementing regulations increased the applicant window of eligibility and removed the school nomination requirement. Students seeking advanced degrees and those who completed an advanced degree within the previous two years will use the application to apply for the Presidential Management Fellows Program. They will no longer be required to have a school nomination. OPM expects this will increase the number of applicants from years past.
October 15, 2012, at 4:00 p.m., and October 16, 2012, at 8:00 a.m.
New York, New York.
Closed.
1. Strategic Issues.
1. Strategic Issues, continued.
2. Financial Matters.
3. Pricing.
4. Personnel Matters and Compensation Issues.
5. Governors' Executive Session—Discussion of prior agenda items and Board Governance.
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260–1000. Telephone (202) 268–4800.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, October 4, 2012 at 2:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Walter, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matter of the Closed Meeting scheduled for Thursday, October 4, 2012 will be:
Institution and settlement of injunctive actions; institution and settlement of administrative proceedings; and other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
This proposal submitted by Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) is to codify a fee schedule for the sale by Market Data Express, LLC (“MDX”), an affiliate of CBOE, of a data product that includes option valuations. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish fees that MDX will charge for a new market data product, referred to as the CBOE Customized Option Valuation Service (the “Service”). The Service would provide subscribers with an “end-of-day” file
The Data would consist of indicative
A small number of market data vendors produce option value data that is similar to the Data.
The fees that MDX would assess for the Data are set forth in the following table which would be included on the Price List on the MDX Web site (
MDX would charge a fee per option per day for the Data. The amount of the fee would be reduced based on the number of options purchased. A subscriber would pay $1.25 per option per day for each option purchased up to 50 options, $1.00 per option per day for each option purchased from 51 to 100 options, $0.75 per option per day for each option purchased from 101 to 500 options, and $.050 [sic] per option per day for each option purchased over 500 options. For example, a subscriber that purchases values for 150 options per day would pay $1.25 per option per day for the first 50 options ($62.50), $1.00 per option per day for the next 50 options ($50.00) and $0.75 per option per day for the remaining 50 options ($37.50) for a total of $150 per day.
Subscribers would be able to purchase options daily, weekly, monthly or quarterly through the MDX Web site. TPHs and non-TPHs would be charged the same fees for the Data. The Data would be delivered to subscribers via File Transfer Protocol (FTP) or secure copy shortly after the close of trading each day. MDX expects to launch the Service during the fourth quarter of 2012.
The Exchange believes the proposed rule change is consistent with the provisions of Section 6 of the Securities Exchange Act of 1934 (the “Act”)
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange believes the proposed rule change is pro-competitive in that it would allow the Exchange, through MDX, to disseminate a new data service on a voluntary basis. The Service is voluntary on the part of the Exchange, which is not required to offer such services, and voluntary on the part of prospective subscribers that are not required to use it. The Exchange believes that the Service would help attract new users and new order flow to the Exchange, thereby improving the Exchange's ability to compete in the market for options order flow and executions.
The Exchange also believes that the proposed fees for the Data are consistent with the requirements of the Act because competition provides an effective constraint on the market data fees that the Exchange, through MDX, has the ability and the incentive to charge. CBOE has a compelling need to attract order flow from market participants in order to maintain its share of trading volume. This compelling need to attract order flow imposes significant pressure on CBOE to act reasonably in setting its fees for market data, particularly given that the market participants that will pay such fees often will be the same market participants from whom CBOE must attract order flow. These market participants include broker-dealers that control the handling of a large volume of customer and proprietary order flow. Given the portability of order flow from one exchange to another, any exchange that sought to charge unreasonably high data fees would risk alienating many of the same customers on whose orders it depends for competitive survival. CBOE currently competes with eight options
CBOE is constrained in pricing the Data by the availability to market participants of alternatives to purchasing the Data. CBOE must consider the extent to which market participants would choose one or more alternatives instead of purchasing the exchange's data. As noted above, SuperDerivatives, Markit, Prism, and Bloomberg are some of the market data vendors that offer market data products that would compete with the Service Also, OCC makes similar data available at no cost, thus constraining CBOE's ability to price the Data. The vendor proprietary data and the OCC data are significant alternatives to the MDX Data. Further, other self-regulatory organizations as well as broker-dealers and alternative trading systems can potentially produce their own option valuation products and thus are sources of potential competition for MDX.
The number of market data vendors that sell valuations is relatively limited. The Exchange believes that MDX can be a low cost provider of valuations in this competitive environment.
For the reasons cited above, the Exchange believes the CBOE Customized Option Valuation Service offering, including the proposed fees, is equitable, reasonable and not unfairly discriminatory. In addition, the Exchange believes that no substantial countervailing basis exists to support a finding that the proposed terms and fees for the Service fails to meet the requirements of the Act.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to make amendments to its rules pertaining to certain auction mechanisms. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements
Under Rule 6.51,
First, currently the AIM and SAM auctions each in relevant part provide that auction responses may be modified or canceled during the auction response period. The only way to modify a response would be for a Trading Permit Holder to cancel a prior response then submit a new response. As a result, the Exchange believes that the references to modifying responses in the rule text are unnecessary. Therefore, the Exchange is proposing to delete references to modifying responses in Rules 6.51(b)(1) and 6.52(b)(1), respectively.
Second, normally an auction would conclude after 1 second in the case of an AIM or SAM auction. In addition, respective AIM and SAM auction provisions set out various circumstances during which an auction would conclude early. Currently, the provisions are silent on what would happen in the event the option series is subject to a trading halt while an auction is ongoing. In such an event, the relevant auction would conclude early and the Agency Order would execute (or not execute) in accordance with the allocation provisions set out in the relevant rules. Therefore, the Exchange is proposing to amend Rules 6.51(b)(2) and 6.52(b)(2), respectively, to indicate that an auction would conclude early in the event of a trading halt in the series on the Exchange and the Agency Order would execute (or not execute) in accordance with the allocation provisions set out in the relevant rules.
The Exchange believes the proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposal.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 6, 2012, the Fixed Income Clearing Corporation (“FICC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR–FICC–2012–06 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
FICC proposes to move the time at which its Mortgage-Backed Securities Division (“MBSD”) runs its first processing pass of the day from 2:00 p.m. to 4:00 p.m. Eastern Standard Time. The proposed change does not require revisions to MBSD's rules because those rules do not address the times of MBSD's processing passes.
MBSD currently runs its first processing pass of the day (historically referred to as the “AM Pass”) at 2:00 p.m. Eastern Standard Time. MBSD also executes an evening pass (referred to as the “PM Pass”) at 8:00 p.m. Eastern Standard Time, which will remain unchanged. On days when MBSD executes its to-be-announced netting cycle, this cycle immediately follows the completion of the first pass of the day. The proposed change to 4:00 p.m. for the first pass of the day will allow more trades to be included in the to-be-announced net, which will assist in reducing both the amount of fails in the market and the related operational risk. The proposed change is being made at the request of the Securities Industry and Financial Markets Association (“SIFMA”) MBS Operations Committee. MBSD advised members of the proposed change via an Important Notice dated August 1, 2012.
Section 19(b)(2)(C) of the Act
The Commission concludes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to FICC. The proposed rule change will help to maximize the number of trades that are included in the to-be-announced netting process. This, in turn, should reduce the number of trades that ultimately fail, and will temper the attendant operational risk, as well. The proposed change will therefore foster the prompt and accurate clearance and settlement of security transactions, and assure the safeguarding of securities and funds in FICC's custody or control, or for which FICC is responsible.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act, in particular with the requirements of Section 17A of the Act
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. Flight Operational Quality Assurance (FOQA) is a program for the routine collection and analysis of digital flight data from airline operations, including but not limited to digital flight data currently collected pursuant to existing regulatory provisions. The FAA requires certificate holders who
Written comments should be submitted by December 3, 2012.
Kathy DePaepe at (405) 954–9362, or by email at:
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, AES–200, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. 14 CFR part 21 prescribes certification standards for aircraft, aircraft engines, propellers appliances and parts. The information collected is used to determine compliance and applicant eligibility. The respondents are aircraft parts designers, manufacturers, and aircraft owners.
Written comments should be submitted by December 3, 2012.
Kathy DePaepe at (405) 954–9362, or by email at:
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, AES–200, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information collected will be used to evaluate the qualifications of applicants for a variety of positions within the FAA.
Written comments should be submitted by December 3, 2012.
Kathy DePaepe at (405) 954–9362, or by email at:
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, AES–200, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by November 1, 2012.
Kathy DePaepe at (405) 954–9362, or by email at:
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Federal Aviation Administration, DOT.
Notice of intent of waiver with respect to land.
The Federal Aviation Administration (FAA) is considering a proposal to authorize the release of 138.33 acres of airport property at the former Willmar Municipal Airport, Willmar, MN. The land will be used for an industrial park. The FAA issued a
The City of Willmar built a new airport in 2006, therefore the acreage being released is not needed for aeronautical use. The 138.33 acres are on the east side of the former Willmar Municipal Airport, more specifically west of County Road 5 and north of Willmar Avenue SW. The acreage was originally acquired with City of Willmar funds. There are no impacts to the airport by allowing the airport to dispose of the property. The fair market value of this land is $729,100 and will be applied to the new Willmar Municipal Airport for operating and maintaining the airport. Approval does not constitute a commitment by the FAA to financially assist in the disposal of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA.
In accordance with section 47107(h) of title 49, United States Code, this notice is required to be published in the
Comments must be received on or before November 1, 2012.
Ms. Nancy M. Nistler, Program Manager, Federal Aviation Administration, Airports District Office, 6020 28th Avenue South, Room 102, Minneapolis, MN 55450–2706. Telephone Number (612) 253–4638/FAX Number (612) 253–4611. Documents reflecting this FAA action may be reviewed at this same location or at the Willmar City Offices, 333 6th Street SW., Willmar, MN 56201.
Ms. Nancy M. Nistler, Program Manager, Federal Aviation Administration, Airports District Office, 6020 28th Avenue South, Room 102, Minneapolis, MN 55450–2706. Telephone Number (612) 253–4638/FAX Number (612) 253–4611. Documents reflecting this FAA action may be reviewed at this same location or at the Willmar City Offices, 333 6th Street SW., Willmar, MN 56201.
The following is a legal description of the subject airport property to be released at the former Willmar Municipal Airport in Willmar, Minnesota:
That part of the West Half of the West Half of Section 16, and also that part of the East Half of Section 17, all in Township 119 North, Range 35 West of the Fifth Principal Meridian, Willmar Township, Kandiyohi County, Minnesota, described as follows;
Beginning at the southwest corner of the said Section 16; thence on a geodetic bearing of South 89 degrees 36 minutes 20 seconds East, along the south line of said Section 16, a distance of 90.98 feet; thence on a bearing of North 00 degrees 57 minutes 01 seconds West a distance of 816.83 feet; thence on a bearing of North 44 degrees 37 minutes 57 seconds East a distance of 139.98 feet; thence on a bearing of North 00 degrees 57 minutes 01 seconds West a distance of 100.02 feet; thence on a bearing of North 45 degrees 22 minutes 03 seconds West a distance of 142.85 feet; thence on a bearing of North 00 degrees 57 minutes 01 seconds West a distance of 750.79 feet; thence northerly, a distance of 321.10 feet, along a curve, which is concave to the east, having a radius of 11359.16 feet, a central angle of 1 degree 37 minutes 11 seconds, and a chord bearing of North 00 degrees 08 minutes 26 seconds West; thence on a bearing of North 00 degrees 40 minutes 09 seconds East a distance of 2181.18 feet; thence on a bearing of North 70 degrees 01 minutes 19 seconds West a distance of 96.74 feet to the west line of said Section 16; thence on a bearing of South 00 degrees 29 minutes 48 seconds West, along the west line of said Section 16, a distance of 431.32 feet to the northeast corner of the Southeast Quarter of the Northeast Quarter of said Section 17; thence on a bearing of South 89 degrees 02 minutes 46 seconds West, along the north line of the Southeast Quarter of the Northeast Quarter of said Section 17, a distance of 760.32 feet; thence on a bearing of South 00 degrees 40 minutes 09 seconds West a distance of approximately 162 feet to the center of a ditch; thence southwesterly, along the centerline of the ditch to its intersection with the west line of the east 132.00 feet of the Southwest Quarter of the Northeast Quarter of said Section 17; thence on a bearing of South 00 degrees 32 minutes 42 seconds West, along the west line of the east 132.00 feet of the Southwest Quarter of the Northeast Quarter of said Section 17, a distance of approximately 897.00 feet to north line of the Southeast Quarter of said Section 17; thence on a bearing of South 00 degrees 03 minutes 55 seconds West, along the west line of the east 132.00 feet of the West Half of the Southeast Quarter of said Section 17, a distance of 2651.65 feet to the south line of said Section 17; thence on a bearing of North 88 degrees 41 minutes 00 seconds East, along the south line of said Section 17, a distance of 1490.16 feet to the point of beginning.
Federal Highway Administration (FHWA), DOT.
Rescind Notice of Intent to prepare an Environmental Impact Statement.
The FHWA, on behalf of the California Department of Transportation (Caltrans), is issuing this notice to advise the public that the Notice of Intent (NOI) published on June 03, 2002, to prepare an Environmental Impact statement (EIS) for the proposed highway project in San Joaquin and Stanislaus counties, California, is being rescinded.
Scott Smith, Senior Environmental Planner, Central Sierra Environmental Analysis Branch, Caltrans, 855 M. Street, Suite 200, Fresno, California 93721 or call (559) 445–6172.
Effective July 1, 2007, the FHWA assigned, and Caltrans assumed, environmental responsibilities for this project pursuant to 23 U.S.C. 327. Caltrans, in cooperation with San Joaquin and Stanislaus counties, is rescinding the NOI to prepare an EIS for the Vernalis Expressway project along State Route 132.
The proposed project included improvements to State Route 132 from the State Route 132/33 Separation Overhead (Bridge 29–167L) in San Joaquin County to 0.16 km (0.1 mile) west of the San Joaquin Bridge (Bridge 38–45) in Stanislaus County. The project is approximately 5.63 km (3.5 miles) in length. The project was anticipated to improve traffic safety and operations by reducing congestion and accidents. Since the NOI to prepare an EIS was published in the
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated June 27, 2012, New Jersey Transit (NJT) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR 242.403(b), (c)(1)–(3), (d), (e)(1)–(4), (e)(6)–(11), (e)(13) and f(1)–(2). FRA assigned the petition Docket Number FRA–2012–0056.
NJT is filing this request for extension in order to continue its participation in the Confidential Close Call Reporting System (C3RS) Demonstration Pilot Project. NJT and the employees of all NJT-owned and/or -operated territory, including the Southern Tier and Pascack Valley Line (excluding Conrail and Amtrak territories not covered by C3RS), represented by the Brotherhood of Locomotive Engineers and Trainmen, the United Transportation Union, and the American Train Dispatchers Association, are participating in the C3RS Demonstration Pilot Project sponsored by FRA's Offices of Safety and Railroad Policy and Development. The C3RS Demonstration Pilot Project for NJT was initially approved by FRA on November 18, 2009. In Docket Number FRA–2009–0096, NJT requested and received a waiver from compliance of certain provisions of 49 CFR Part 240, which governs the certification of locomotive engineers to support the C3RS Demonstration Pilot Project. NJT, BLET, and UTU now desire to have a similar waiver from certain conductor certification requirements found at 49 CFR part 242 in order to shield the reporting employees and the railroad from punitive sanctions that would otherwise arise. A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received within November 16, 2012 of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of Safety Advisory.
FRA is issuing Safety Advisory 2012–04 to remind track owners, railroads, and their track inspectors of the importance of complying with the applicable rail management programs and engineering procedures that address rail with severe rail head wear and rolling contact fatigue (RCF) conditions. FRA is issuing this notice in response to a July 11, 2012, derailment in Ohio that a preliminary investigation indicates was likely caused by the failure of multiple defects involving detail fractures in rail exhibiting significant vertical head loss (rail head wear) and gage-side-oriented RCF. This notice contains recommendations to track owners to ensure that their employees and other entities performing track inspections comply with the requirements of the applicable engineering procedures that address critical rail head wear, particularly if the track under inspection exhibits significant RCF or a sudden increase in localized rail failure.
Carlo M. Patrick, Staff Director, Rail and Infrastructure Integrity Division, Office of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590, telephone (202) 493–6399; or Elisabeth Galotto, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey
A recent accident has highlighted the need for additional action by track owners and other entities and individuals responsible for compliance with the Track Safety Standards (49 CFR part 213). The following discussion provides a brief summary of the circumstances surrounding a recent train derailment, which appears to have involved a rail with severe rail head wear. Information regarding this incident is based on FRA's preliminary investigation and findings to date. The probable causes and contributing factors, if any, have not yet been determined by FRA. Therefore, nothing in this safety advisory is intended to attribute a cause to this incident or place responsibility for this incident on the acts or omissions of any person or entity.
On July 11, 2012, an eastbound Norfolk Southern Railway Company (NS) freight train, traveling at 23 mph, derailed in Columbus, OH. Of the 13 cars that derailed, 3 contained hazardous materials. Two of the cars, which contained ethanol, a flammable liquid, were compromised, causing a fire near the Columbus Fairgrounds. Residents and businesses within a 1-mile radius of the accident were evacuated. In addition to the damages to the track and to equipment in the train, CSX Transportation, Inc.'s Columbus Line (which runs parallel to the NS track in this area) was shut down due to heat from the fire.
FRA's preliminary investigation indicates that the derailment may have occurred because of accelerated defect development in the rail. During the derailment investigation process, FRA discovered that five rail failures had occurred on various portions of the track subsequent to the last nondestructive rail inspection at this location. FRA believes that this accelerated defect development was possibly influenced by the significant rail head wear, and attributed to the presence of the RCF.
Given this accident, FRA recommends that each entity responsible for the inspection and maintenance of track review, reemphasize, and adhere to the requirements of the track owner's (1) engineering instructions concerning rail wear limits that address inspecting track to identify internal rail flaws; and (2) programs for the management of rail that exhibits severe rail head wear and RCF. As the discussion above indicates, this is especially critical for track over which large quantities of hazardous materials or passengers are transported due to the potential catastrophic impacts that can result from a derailment of these types of trains.
Rail head wear occurs primarily on the gage-side face when the rail is located on the high side of a curve, due to the exertion of wheel flange forces. Vertical rail head wear occurs on the rail head running surface from wheel/rail interaction during cyclical loading. The development of internal rail defects is an inevitable consequence of the accumulation and effects of fatigue under repeated loading. In practice, the growth rate of rail defects is considered highly variable and unpredictable. Moreover, heavy axle loading on worn rail can lead to the accelerated development of rail surface fatigue, and this may prevent detection of an underlying rail flaw by test equipment during the rail inspection process.
Under 49 CFR 213.237(a), FRA requires all Class 4 and 5 track, as well as Class 3 track over which passenger trains operate, to be tested for internal rail defects at least once after every accumulation of 40 mgt of traffic or once a year, whichever is shorter. Class 3 track, over which passenger trains do not operate, is required to be tested at least once after every accumulation of 30 mgt of traffic or once a year, whichever is longer. However, as a result of the unpredictability of defect development, many railroads test for internal rail defects using a performance-based method that focuses on the rate of defect development, which typically results in testing for internal defects at a frequency shorter than required by FRA regulation. Yet, a nondestructive test system is typically designed to perform optimally on an ideal test specimen surface. Conditions, such as extreme cyclical loading, can result in rail head wear and RCF and thus affect the integrity of these rail flaw inspections.
1. Review with its employees the circumstances of the derailment identified above and ensure that the employees report any incidents where a sudden increase of rail failure occurs in a localized area.
2. Discuss with its employees the requirements of its own engineering instructions and ensure that the employees can identify locations that exhibit excessive rail head wear and RCF.
3. Review its current engineering instructions to ensure that the procedures are consistent with the industry standard for rail replacement.
4. Ensure that its employees responsible for the rail inspection process have been adequately trained and are capable of performing proper inspection procedures.
5. Consider and use, as appropriate, recently developed rail inspection technology that is more capable of identifying transverse-oriented defects under RCF.
6. Review recent rail inspection records to identify any incidents involving sudden or accelerated broken rail for future inspection or replacement focus.
7. Apply appropriate slow orders at locations that exhibit rail head wear approaching the limits specified in its own respective engineering instructions until the rail is replaced.
8. Develop an internal software program on rail management that will assist in the identification of sudden or accelerated rail failure incidents, if such a program is not already in place.
FRA encourages railroad industry members and other track owners to take actions that are consistent with the preceding recommendations and to take other actions to help ensure the safety of the Nation's railroads, its employees, and the general public. FRA may modify this Safety Advisory 2012–04, issue additional safety advisories, or take other appropriate actions it deems necessary under its rail safety authority to ensure the highest level of safety on the Nation's railroads.
Federal Transit Administration (FTA), DOT.
Notice of availability of proposed circular chapter and request for comments.
The Federal Transit Administration (FTA) has placed in the docket and on its Web site proposed guidance in the form of a circular chapter to help transportation providers
Comments must be submitted by December 3, 2012. Late-filed comments will be considered to the extent practicable.
You may submit comments to Docket No. FTA–2012–0045 by any of the following methods:
For program questions, Dawn Sweet, Office of Civil Rights, Federal Transit Administration, 1200 New Jersey Avenue SE, Room E54–437, Washington, DC 20590, phone: (202) 366–4018, or email,
The U.S. Department of Transportation (DOT) issues regulations implementing the transportation and related provisions of the Americans with Disabilities Act (ADA) of 1990 and Section 504 of the Rehabilitation Act of 1973, as amended. The regulations at 49 CFR parts 27, 37, 38, and 39 set specific requirements transportation providers must follow to ensure their services, vehicles, and facilities are accessible to and useable by people with disabilities. The body of regulations is vast, covering multiple modes of public transportation, including fixed route bus and rail (e.g., rapid, commuter, and light rail); ADA complementary paratransit; general public demand responsive service; and ferry service. The Federal Transit Administration (FTA), as an agency within DOT, is charged with ensuring that providers of public transportation comply with the regulations.
In 2010, FTA initiated a comprehensive management review of the agency's core guidance to transit grantees on ADA and other civil rights requirements. A primary goal of the review was to assess whether FTA was providing sufficient, proactive assistance to grantees in meeting civil rights requirements, as opposed to reacting to allegations of failure to comply with the requirements. Based on the review, FTA identified the need to develop an ADA circular similar to the circulars long in place for other programs. The current body of statutes and regulations in the ADA area can be imposing, and in some cases, extremely technical. FTA recognized value to the transit industry and other stakeholders in compiling and organizing information by topic into a plain English, easy-to-use format. A circular does not alter, amend, or otherwise affect the DOT ADA regulations themselves or replace or reduce the need for detailed information in the regulations. Its format, however, can provide a helpful outline of basic requirements with references to the applicable regulatory sections, along with examples of practices used by transit providers to meet the requirements. Simply stated, a circular can be a starting point for understanding ADA requirements in the transit environment.
Therefore, FTA is proposing the phased development of a new circular, FTA C 4710.1, with the initial chapter focused on vehicle acquisition. This notice provides a summary of the proposed chapter. The chapter does not contain any new requirements, policies, or directives. The chapter itself is not included in this notice; an electronic version may be found on FTA's Web site, at
The “Vehicle Acquisition” chapter begins with an introductory section that provides a brief background on the purpose of the circular and this chapter specifically. The chapter is designed to be a reference document for public entities acquiring vehicles to ensure these vehicles meet the requirements of the DOT ADA regulations in 49 CFR part 37, subpart D, and 49 CFR part 38. Importantly, this section also states what this circular project is not intended to accomplish—the circular is not a substitute for the DOT ADA regulations; public transportation providers are advised in this section to use this circular in addition to (not in lieu of) the regulations. The section then introduces in broad terms the DOT ADA regulations applicable to vehicle acquisition, explaining that 49 CFR part 38 sets the technical design specifications for accessible vehicles, while Part 37 defines the conditions under which vehicles must be purchased as accessible or made accessible. The section ends by emphasizing that although a public entity may use a contractor to provide service, it cannot contract away its ADA responsibility; the contractor “stands in the shoes” of the public entity and must meet the same requirements that would apply if the public entity were acquiring or remanufacturing its own vehicles.
After the introductory section, the chapter moves onto Section 2, “Acquisition Requirements for Public Entities.” This section explains how the acquisition requirements vary in Part 37 depending upon the following factors: (1) Vehicle type (rail and non-rail); (2)
Section 3 is titled “The Main Elements of Accessible Vehicles” and summarizes the required design specifications in Part 38 by vehicle type. The section begins by emphasizing that an accessible bus or rail car involves much more than features for boarding and alighting individuals who use wheelchairs, which is how accessibility is commonly envisioned. Handrails, slip-resistant flooring, public address systems, and sufficient lighting, for example, are all part of an accessible vehicle, in addition to lifts, ramps, and securement systems. The section does not attempt to restate all of the Part 38 specifications but rather highlights the main points by vehicle type with accompanying photographs and diagrams, and refers the reader to the appropriate part of the regulations for more detail. For rail cars, the section highlights four areas that have been of particular interest to transit systems and members of the public: The platform gap, mobility aid accessibility, priority seating, and between-car barriers.
Section 4, “Ensuring that Vehicles Are Compliant,” addresses ways a transportation provider can ensure that the vehicles it plans to acquire are accessible under Part 38 and useable to individuals with disabilities. Strategies presented include ensuring that bid packages spell out specific accessibility requirements in detail, seeking public input to ensure that the solicited vehicles can be used by as many persons with disabilities as possible, and inspecting the vehicles at the appropriate time in the procurement cycle.
Complementing Section 4 is an attachment titled “Sample Bus and Van Specification Checklist” that lists the design elements in Part 38 applicable to non-rail vehicles. It is a document FTA uses in its compliance reviews when assessing whether a transportation provider's buses comply with Part 38. The checklist is provided here as an example of a tool a transportation provider could replicate to use in its factory inspections to ensure the vehicles it plans to acquire are compliant long before delivery. A grantee may decide to develop similar checklists to inspect rail cars.
The chapter ends with a list of definitions taken from the DOT ADA regulations, a list of statutory and regulatory authorities, and a reference list.
The Vehicle Acquisition chapter is the first in approximately 12 chapters that will compose FTA's ADA circular. Because of the breadth of the ADA, FTA is developing this circular in segments. The next chapter currently under development is “Equivalent Facilitation,” which will outline how a grantee can depart from the regulations by demonstrating to FTA that an alternative design or technology provides individuals with disabilities equivalent or greater access to a vehicle or facility. FTA anticipates that the topics of subsequent chapters will largely mirror the major provisions in the DOT ADA regulations, for example: General nondiscrimination requirements, facility construction and alteration, fixed route bus and rail service, ADA complementary paratransit (eligibility and service delivery), general public demand responsive service, and ferries and other modes.
When issued in its final form, the circular is intended to provide guidance specifically for recipients of FTA financial assistance that provide public transit. As such, requirements found in the DOT ADA regulations, for example, related to intercity rail (i.e., Amtrak), private motor coach service (e.g., Greyhound), taxi service, and airport transportation will not be covered in the circular.
Going forward, it is anticipated that the chapters will be issued in groups. All chapters will be announced in the
FTA seeks comments on the scope and content of the first chapter of the circular, “Vehicle Acquisition,” specifically as to whether there are areas that need more clarification or explanation or topics that were overlooked. The chapter includes a section on practices a transit provider can use to help ensure the vehicles it acquires are compliant and useable. FTA seeks comment on whether there are other practices that have proven effective that would be worth describing in the circular.
FTA also seeks suggestions on specific issues to cover in future chapters and which topics should be a priority to cover early on in the process of developing the ADA circular. For example, FTA seeks comments on which issues within the broad topic areas mentioned above (e.g., general nondiscrimination, facility construction and alterations, fixed route services, and ADA complementary paratransit) are most challenging to address by the industry. Further, FTA is interested in knowing in what areas guidance would be the most valuable to transportation providers.
Federal Transit Administration (FTA), DOT.
Clean Fuels Grant Program: Announcement of Project Selections.
The U.S. Department of Transportation's (DOT) Federal Transit Administration (FTA) announces the selection of projects for the Clean Fuels Grant program enhanced with Section 5309 Bus and Bus Facilities program funds. On February 7, 2012, FTA published a Notice of Funding Availability (NOFA) for its Clean Fuels Grant program (77 FR 6178). The NOFA explained the requirements and procedures for eligible applicants to apply for the funds made available by the Surface and Air Transportation Programs Extension Act of 2011. In sum, the FY 2012 Clean Fuels Grant Program made available approximately $51.5 million in unallocated Section 5308 Clean Fuels Grant Program funds. As outlined in the NOFA, the Section 5308 funds would be awarded to fund projects in non-attainment and maintenance areas in achieving or maintaining the National Ambient Air Quality Standards for ozone and carbon monoxide and supports emerging clean fuel and advanced propulsion technologies for transit buses and markets for those technologies. Projects in attainment areas were also eligible to
Successful applicants should contact the appropriate FTA Regional office for specific information regarding applying for the funds. A list of Regional offices can be found at
In response to the NOFA, FTA received 146 eligible proposals requesting $516 million in federal funds, indicating significant demand for funds. Of the proposals submitted, 46 were from attainment areas requesting $124 million and were only considered for Bus and Bus Facilities program funds. Project proposals were evaluated based on the criteria detailed in the February 7, 2012 NOFA. FTA is funding 21 projects in non-attainment and maintenance areas as shown in Table 1 for a total of $51.5 million, and 6 projects in attainment areas as shown in Table 2 for a total of $7.8 million with prior year Section 5309 funds.
Grantees selected for competitive discretionary funding should work with their FTA regional office to finalize the grant application in FTA's Transportation Electronic Award Management system (TEAM) so that funds can be obligated expeditiously. Grant applications must only include eligible activities applied for in the original project application. Funds must be used consistent with the competitive proposal and for the eligible purposes defined under 49 U.S.C. 5308(a)(2) and 5309. In cases where the allocation amount is less than the proposer's requested amount, grantees should work with the regional office to reduce scope or scale the project such that a complete phase or project is accomplished. Grantees are reminded that the 90% provision for biodiesel buses is not available this year, as the language permitting this higher federal share was not included in the 2012 appropriations bill. This change was highlighted in
Financial Management Service, Treasury.
Notice.
This notice announces the appointment of members to the Financial Management Service (FMS) Performance Review Board (PRB).
This notice is effective on October 2, 2012.
Wanda J. Rogers, Deputy Commissioner, Financial Management Service, 401 14th Street SW., Washington, DC; (202) 874–7000.
Pursuant to 5 U.S.C. 4314(c) (4), this notice is given of the appointment of individuals to serve as members of the FMS PRB. This Board reviews the performance appraisals of career senior executives below the Assistant Commissioner level and makes recommendations regarding ratings, bonuses, and other personnel actions. Four voting members constitute a quorum. The names and titles of the FMS PRB members are as follows:
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of two individuals whose property and interests in property have been unblocked pursuant to Executive Order 13310 of July 28, 2003, “Blocking Property of the Government of Burma and Prohibiting Certain Transactions.”
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (“SDN List”) of the individuals identified in this notice whose property and interests in property were blocked pursuant to Executive Order 13310 of July 28, 2003, is effective on September 19, 2012.
Assistant Director, Sanctions Compliance and Evaluation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622–2490.
This document and additional information concerning OFAC are available from OFAC's web site (
On May 20, 1997, President Clinton issued Executive Order 13047, “Prohibiting New Investment in Burma,” and declared a national emergency to deal with the unusual and extraordinary threat to the national security and foreign policy of the United States posed by the Government of Burma's actions and policies. In order to take additional steps with respect to the Government of Burma's continued repression of the democratic opposition in Burma, President Bush issued Executive Order 13310, “Blocking Property of the Government of Burma and Prohibiting Certain Transactions” (“the Order” or “E.O. 13310”). E.O. 13310 imposes economic sanctions on persons listed in the Annex to the Order. The Order also authorizes the Secretary of the Treasury, in consultation with the Secretary of State, to designate additional persons determined to meet the criteria set forth in E.O. 13310.
On September 27, 2007, the Director of OFAC, in consultation with the Secretary of State, designated, pursuant to one or more of the criteria set forth in subparagraphs (b)(i) through (b)(ii) of Section 1 of the Order, the individuals listed below, whose property and interests in property were blocked pursuant to the Order.
On September 19, 2012, the Director of OFAC removed and unblocked from the SDN List the two individuals listed below, whose property and interests in property were blocked pursuant to E.O. 13310.
1. SEIN, THEIN; DOB 20 Apr 1945; POB Pathein, Irrawaddy Division, nationality Burma; citizen Burma; Adjutant General; First Secretary, State Peace and Development Council (individual) [BURMA]
2. MANN, THURA SHWE (a.k.a. MANN, SHWE); DOB 11 Jul 1947; nationality Burma; citizen Burma; Joint Chief of Staff; Member, State Peace and Development Council (individual) [BURMA]
(1) strengthen the efficacy of the Government's zero-tolerance policy on trafficking in persons by Federal contractors and subcontractors in solicitations, contracts, and subcontracts for supplies or services (including construction and commercial items), by:
(i) using misleading or fraudulent recruitment practices during the recruitment of employees, such as failing to disclose basic information or making material misrepresentations regarding the key terms and conditions of employment, including wages and fringe benefits, the location of work, living conditions and housing (if employer provided or arranged), any significant costs to be charged to the employee, and, if applicable, the hazardous nature of the work;
(ii) charging employees recruitment fees;
(iii) destroying, concealing, confiscating, or otherwise denying access by an employee to the employee's identity documents, such as passports or drivers' licenses; and
(iv) for portions of contracts and subcontracts:
(aa) an employee who is legally permitted to remain in the country of employment and who chooses to do so; or
(bb) an employee who is a victim of trafficking and is seeking victim services or legal redress in the country of employment, or an employee who is a witness in a trafficking-related enforcement action;
(v) other specific activities that the FAR Council identifies as directly supporting or promoting trafficking in persons, the procurement of commercial sex acts, or the use of forced labor in the performance of the contract or subcontract;
(2) except as provided in subsection (a)(3) of this section, ensure that provisions in solicitations and clauses in contracts and subcontracts, where the estimated value of the supplies acquired or services required to be performed outside the United States exceeds $500,000, include the following
(i) an awareness program to inform employees about:
(ii) a process for employees to report, without fear of retaliation, any activity that would justify termination under section 106(g) of the TVPA, or is inconsistent with the requirements of this order, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor;
(iii) a recruitment and wage plan that only permits the use of recruitment companies with trained employees, prohibits charging recruitment fees to the employee, and ensures that wages meet applicable host country legal requirements or explains any variance;
(iv) a housing plan, if the contractor or subcontractor intends to provide or arrange housing, that ensures that the housing meets host country housing and safety standards or explains any variance; and
(v) procedures to prevent subcontractors at any tier from engaging in trafficking in persons, including those trafficking-related activities described in subsection (a)(1)(A) of this section, and to monitor, detect, and terminate any subcontractors or subcontractor employees that have engaged in such activities; and
(i) it has the compliance plan referred to in subsection (a)(2)(A) of this section in place to prevent trafficking-related activities described in section 106(g) of the TVPA and this order; and
(ii) either, to the best of its knowledge and belief, neither it nor any of its subcontractors has engaged in any such activities; or, if abuses have been found, the contractor or subcontractor has taken the appropriate remedial and referral actions;
(3) specify that the requirements in subsections (a)(2)(A) and (B) of this section shall not apply with respect to contracts or subcontracts for commercially available off-the-shelf items.
(1) in consultation with appropriate management councils, such as the Chief Acquisition Officers Council, provide guidance to agencies on developing appropriate internal procedures and controls for awarding and administering Federal contracts to improve monitoring of and compliance with actions to prevent trafficking in persons, consistent with section 106 of the TVPA, including the development of methods to track the number of trafficking violations reported and remedies applied; and
(2) in consultation with the Federal Acquisition Institute and appropriate management councils, such as the Chief Acquisition Officers Council:
(i) applicable laws, regulations, and policies; and
(ii) internal controls and oversight procedures implemented by the agency, including enforcement procedures available to the agency to investigate, manage, and mitigate contractor and subcontractor trafficking violations.
(1) the authority granted by law to an executive department, agency, or the head thereof; or
(2) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
By the authority vested in me as President by the Constitution and the laws of the United States, including 49 U.S.C. 44301–44310, I hereby:
1. Determine that the continuation of U.S. air transportation is necessary in the interest of air commerce, national security, and the foreign policy of the United States.
2. Approve provision by the Secretary of Transportation of insurance or reinsurance to U.S.-certificated air carriers against loss or damage arising out of any risk from the operation of an aircraft, in the manner and to the extent provided in chapter 443 of title 49, U.S. Code, until September 30, 2013, if he determines that such insurance or reinsurance cannot be obtained on reasonable terms from any company authorized to conduct an insurance business in a State of the United States.
3. Delegate to the Secretary of Transportation the authority, vested in me by 49 U.S.C. 44306(c), to extend this approval and determination beyond September 30, 2013, to December 31, 2013, if he finds that the continued operation of aircraft to be insured or reinsured is necessary in the interest of air commerce or national security or to carry out the foreign policy of the United States Government, if he also determines that such insurance or reinsurance cannot be obtained on reasonable terms from any company authorized to conduct an insurance business in a State of the United States.
You are directed to bring this determination immediately to the attention of all air carriers, as defined in 49 U.S.C. 40102(a)(2), and to arrange for its publication in the
In Presidential document 2012–22710 beginning on page 56519 in the issue of Wednesday, September 12, 2012, make the following correction:
On page 56519, the heading should read “Continuation of the National Emergency With Respect to Persons Who Commit, Threaten To Commit, or Support Terrorism”.
Fish and Wildlife Service, Interior.
12-Month finding; proposed rule.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the spring pygmy sunfish (
We will consider comments received or postmarked on or before December 3, 2012. We must receive requests for a public hearing, in writing, at the address shown in the
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Stephen Ricks, Field Supervisor, Mississippi Ecological Services Field Office, 6578 Dogwood View Parkway, Jackson, MS 39213; by telephone (601–321–1122); or by facsimile (601–965–4340). If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800–877–8339.
This document consists of: (1) A 12-month petition finding that listing the spring pygmy sunfish under the Act is warranted; (2) a proposed rule to list the spring pygmy sunfish as threatened; and (3) a proposed rule to designate critical habitat for this species.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned Federal and State agencies, the scientific community, or any other interested party concerning this proposed rule. We particularly seek comments concerning:
(1) Additional information concerning the historical and current status, range, distribution, and population size of the spring pygmy sunfish, including the locations of any additional populations.
(2) Any information on the biological or ecological requirements of the species and ongoing conservation measures for the species and its habitat.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and regulations that may be addressing those threats.
(4) Current or planned activities in the areas occupied by the species and possible impacts of these activities on this species.
(5) Additional information regarding the threats to the species under the five listing factors, 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; and
(e) Other natural or manmade factors affecting its continued existence.
(6) Any information regarding ongoing conservation activities for the spring pygmy sunfish, including the Belle Mina Farm, Ltd., candidate conservation agreement with assurances (CCAA), and their effect on the status of the species.
(7) The reasons why areas should or should not be designated as critical habitat as provided by section 4 of the Act, including the possible risks or benefits of designating critical habitat, including risks associated with publication of maps designating any area on which this species may be located, now or in the future, as critical habitat.
(8) The following specific information on:
(a) The amount and distribution of habitat for spring pygmy sunfish;
(b) What areas, that would be occupied at the time of listing (i.e., are currently occupied) and that contain the physical and biological features essential to the conservation of this species, should be included in a critical habitat designation and why;
(c) Special management considerations or protection that may be needed for the essential features in critical habitat areas, including managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential for the conservation of this species and why.
(9) Information on the projected and reasonably likely impacts of changing environmental conditions resulting from climate change on the species and its habitat.
(10) Information on groundwater aquifer or recharge areas for spring systems that support the spring pygmy sunfish, and the possible implications of extracting ground and surface water and its impact on the spring pygmy sunfish and its habitat.
(11) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, we seek information on any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts.
(12) Information on whether the benefits of the exclusion of lands covered by the Belle Mina Farm, Ltd., CCAA, or any other particular area, outweigh the benefits of inclusion under section 4(b)(2) of the Act.
(13) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
Please note that 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, as 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,” and section 4(b)(2) directs that critical habitat designations be made based on the best scientific data available and after consideration of economic and other relevant impacts.
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Section 4(b)(3)(B) of the Act requires that, for any petition to revise the Federal Lists of Threatened and Endangered Wildlife and Plants (Lists) that contains substantial scientific or commercial information that listing a species may be warranted, we make a finding within 12 months of the date of receipt of the petition that the petitioned action is either: (a) Not warranted; (b) warranted; or (c) warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether any species is endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Lists. With this publication, we have determined that the petitioned action to list spring pygmy sunfish is warranted, and we are proposing to list the species and to designate critical habitat for the species.
The spring pygmy sunfish was proposed for listing as endangered with critical habitat on November 29, 1977 (42 FR 60765). The critical habitat portion of the proposal was withdrawn on March 6, 1979 (44 FR 12382), in order to make a new critical habitat proposal that conformed to new, more prescriptive provisions for critical habitat made in the 1978 amendments to the Act. The Service proposed critical habitat again for the species on July 27, 1979 (44 FR 44418). The pending proposal to list the spring pygmy sunfish, along with the proposed critical habitat designation, were withdrawn effective November 29, 1979, as announced in the
The spring pygmy sunfish was included in the December 30, 1982, notice of review (47 FR 58454) as a category 2 candidate species for listing. Category 2 status was given to those species for which the Service possessed information indicating that proposing to list as endangered or threatened was possibly appropriate, but for which conclusive data on biological vulnerability and threats were not currently available to support proposed rules. Subsequently, in the September 18, 1985 (50 FR 37958); January 6, 1989 (54 FR 554); and November 15, 1994 (59 FR 58982) notices of review, the spring pygmy sunfish was identified as a category 1 candidate species for listing. Category 1 status was given to those species for which the Service had on file sufficient information on biological vulnerability and threat(s) to support a proposal to list as endangered or threatened but for which a proposal had not yet been issued because of other listing actions. On February 28, 1996 (61
On November 24, 2009, we received a petition from the Center for Biological Diversity (CBD) and Michael Sandel of the University of Alabama, requesting that the spring pygmy sunfish be listed as endangered under the Act. In a December 17, 2009, letter to the petitioners, we responded that we reviewed the information presented in the petition, and we outlined the petition process and timelines. In July 2010, we received letters from the North American Native Fishes Association (NANFA) and Dr. Bruce Stallsmith (University of Alabama at Huntsville) requesting that we emergency list the species under section 4(b)(7) of the Act. Following review of the petition, the letters, and information in our files, we determined that issuing an emergency regulation temporarily listing the species was not warranted. We notified NANFA and Dr. Stallsmith of our determination on July 21, 2010.
On April 1, 2011, we published in the
Since 2010, Belle Mina Farms, the owner of Beaverdam Spring, Moss Spring, and the upper reach of Beaverdam Creek, in Limestone County, Alabama, and the Service have been engaged in drafting a candidate conservation agreement with assurances (CCAA) for a population of spring pygmy sunfish. The CCAA outlines a variety of conservation measures that will be implemented to benefit the species (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment” under the Factor A discussion, below). On September 14, 2010, we received the completed application from the landowner for an enhancement of survival permit for the spring pygmy sunfish under section 10(a)(1)(A) of the Act along with a draft CCAA. The CCAA, the permit application, and the environmental action statement (EAS) were made available for public comment for a 30-day period beginning on February 21, 2012 (77 FR 9958). The CCAA and EAS were finalized in April 2012, and the associated permit was issued on June 7, 2012. If the spring pygmy sunfish is listed under the Act, the permit authorizes incidental take of the spring pygmy sunfish due to otherwise lawful activities (e.g., crop cultivation, livestock grazing, silviculture, vegetation management, water usage, road maintenance, fencerow maintenance, etc.) in accordance with the terms of the CCAA.
The spring pygmy sunfish (
The range of the spring pygmy sunfish is very restricted. The species currently occupies about 5.9 mi (9.5 km) and 1,435 ac (580.6 ha) of four spring pools and associated features confluent with the middle to upper Beaverdam Spring/Creek watershed. These spring pools, which include Moss, Beaverdam, Thorsen, and Horton springs, all in Limestone County, Alabama, along with associated spring runs and wetlands, are collectively referred to as the Beaverdam Spring/Creek system. The greatest concentration of spring pygmy sunfish occurs within the Beaverdam Spring site, which comprises 24 percent of the total occupied habitat for the species.
The spring pygmy sunfish has high fecundity (reproductive capacity) and quickly populates areas of available habitat (Sandel pers. obs. 2004 through 2009). Adults reproduce from January to October. Spawning occurs in March and April, when water quality parameters are within a suitable range (pH of 6.0 to 7.7 and water temperatures of 57.2 to 68 degrees Fahrenheit (°F) (15 to 20 degrees Celsius (°C)). Spring pygmy sunfish produce about 65 eggs, and hatching occurs from April to September (Sandel pers. obs. 2004 through 2009). Two spawning attempts per year have been reported in captivity (Petty
The spring pygmy sunfish is a spring-associated (Warren 2004, p.185) and groundwater-dependent (Jandebeur, pers. comm., 2011) fish endemic to the Tennessee River drainage in the Eastern Highland Rim physiographic province and Dissected Tablelands (Marbut
Natural spring pool habitats are typically static, persisting without disruption for long periods, even during droughts, in the absence of water extraction. The species is most abundant at the spring outflow or emergence (spring head) and spring pool area. The spring pygmy sunfish is typically found at water depths from 5 to 40 inches (in) (13 to 102 centimeters (cm)) and rarely in the upper 5 inches (13 cm) of the water column. Species of submergent and emergent vegetation providing important habitat for the spring pygmy sunfish include clumps
The spring pygmy sunfish was known to have historically occurred at two other sites. This species was initially discovered in 1938, in Cave Springs, Lauderdale County, Alabama, where it was extirpated about a year later due to inundation from the formation of Pickwick Reservoir. In 1941, this species was also discovered in Pryor Spring within the Swan Creek watershed in Limestone County, Alabama, by Tarzwell and Bretton, where it was noted to be common (Jandebeur 2011a, pp. 1–5). Limited sampling efforts in the Pryor Springs complex between 1966 and 1979 indicated a sparse population of spring pygmy sunfish west of, and none east of, Highway 31. The exact location of the original collection in Pryor Spring is uncertain, but Jandebeur (2011a, pp. 1–5) speculates the original site to be solely west of Highway 31, within the Pryor Spring Branch (spring-fed wetlands) and not in Pryor Spring proper (spring head and pool), east of the highway. However, in 1984, in an effort to enhance this population in Pryor Spring, fish were moved from Moss Spring (Beaverdam Spring/Creek System) into Pryor Spring on both sides of Highway 31 (Mettee
The spring pygmy sunfish exhibits metapopulation (a group of individual populations that have some level of gene flow between them) structure by occupying all suitable spring habitats where there is flowing spring water and connectivity. Migration and continuity of the species between spring pools is very important in maintaining the genetic diversity of species within these sections of the Beaverdam Spring/Creek system. Sandel (2008, pp. 15–16; 2011, p. 8) suggests that the spring pygmy sunfish population in Beaverdam Spring/Creek is a single, structured, continuous group of breeding individuals, genetically identifiable with limited gene flow from each springhead subpopulation, and that the loss of many subpopulations could cause extinction of the metapopulation. However, Jandebeur (2011b, pp. 1–13) speculates that these populations of spring pygmy sunfish evolved with beaver ecology and that during migration of spring pygmy sunfish from beaver pond habitats, the species may colonize or recolonize existing habitat downstream, even though individual subpopulations may be extirpated due to drought or other ecological issues.
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for adding species to 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 following 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; and
(E) Other natural or manmade factors affecting its continued existence.
Listing actions may be warranted based on any of the above threat factors, singly or in combination. Each of these factors is discussed below.
In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to that factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat. The factor is a threat if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined in the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that these factors are operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the Act.
Increased human population growth, and the accompanying demand for water, will likely alter the Beaverdam Spring/Creek system and its recharge areas through increased water extraction (pumping), diversion, and retention (Erman 2002, p. 8). Because springs provide shelter, thermal refuge, breeding sites, movement corridors, and prey source habitat for the spring pygmy sunfish, the species is dependent on water quantities sufficient to provide spring habitat that is stable and permanent (Erman 2002, p. 8).
Urban development adjacent to the Beaverdam Spring/Creek system would likely fragment and directly impact suitable spring pygmy sunfish habitat by decreasing water quality and quantity, and by limiting the species' movement throughout the system. When an area is urbanized, many impermeable surfaces are constructed such as roofs, pavements, and road surfaces. All are intentionally constructed to be far less permeable than natural soils and to remove stormwater quickly, which results in a reduction in direct recharge into the aquifer, increased stormwater runoff (Younger 2007, p. 39), immediate changes in water quality parameters such as decreased oxygen levels and increased temperature, and increased water quantity and flow velocity (Field
The spring pygmy sunfish is currently facing threats from planned large-scale residential and industrial projects and ongoing development within the vicinity of the Beaverdam Spring/Creek watershed. Sandel (2011, p. 11) observed declines in the species' population and attributed it to sedimentation from two nearby construction activities: the construction of a new sewer line adjacent to the spring system and the construction of the Ashbury subdivision 2.3 mi (3.7 km) northeast of the species' habitat. The Ashbury subdivision, adjacent to Hardeman Branch and draining into the
The City of Huntsville's Master Plan for Western Annexed Land (Sasaki 2011, pp. 1–83) proposes developing a total of 10,823 ac (4,379.9 ha) adjacent to spring pygmy sunfish habitat. More than 68 percent of the proposed development site is adjacent to the Beaverdam Spring/Creek watershed. The restricted-use area for subdivision development, within the City of Huntsville, is a minimum of 25 feet (7.6 meters) from the perimeter of a perennial spring. However, no restrictions are set forth for ephemeral springs or seasonal groundwater seepages (City of Huntsville 2007, p. 28), which include many of the ephemeral springs, seepages, and streams draining into the Beaverdam Spring/Creek watershed. These features are necessary for maintenance of seasonal flow rates. Filling them or converting them to developed areas could therefore adversely affect the spring pygmy sunfish. In addition, there are roads proposed to connect the planned developments with the Interstate 65 and Interstate 565 corridors (Sasaki 2011, pp. 1–83), along with feeder roads and improvements on primary and secondary existing roadways in support of new residential and industrial projects (Sasaki 2011, pp. 1–83). Developed, paved-over areas (impervious substrate) promote runoff and inhibit infiltration, changing water flow rates from slow and incremental to fast and localized, because stormwater is directed via surface routes into specific areas of the receiving stream, rather than infiltrating into the soil or draining naturally into surface water.
Pumping or diversion of springs creates unstable conditions for spring-dependent species such as the spring pygmy sunfish through fluctuating water levels and temperature changes. The incremental and cumulative groundwater recharge effects on the habitat of the spring pygmy sunfish may not become evident for years (Likens 2009, p. 90). Within north Alabama, the availability of large quantities of groundwater from springs has been an important factor in industrial and urban development (Warman and Causey 1963, p. 93). It is estimated that, by 2015, the population in Limestone and Lauderdale Counties will increase dramatically (Roop 2010, p. 1), along with expanding urbanization and industrialization (Sasaki 2011, pp. 1–83).
The Fort Payne Chert of the Early Mississippian Age is the principal aquifer of spring pygmy sunfish habitat and provides groundwater to all of Limestone County (McMaster and Harris, Jr. 1963, p. 1). Groundwater in the County is ultimately derived from percolation of precipitation (McMaster and Harris, Jr. 1963, p. 17) into the aquifer system. In urban settings, percolation of rainwater to the aquifer may be disrupted due to less pervious zones and more shunting of rainfall into stormwater systems (Healy 2010, pp. 70–72; Younger 2007, pp. 117–121). Change in land use from rural to urban/industrial within the Beaverdam Spring/Creek area will be detrimental to the spring pygmy sunfish due to changes in the water quality parameters such as oxygen and temperature, along with changes in water quantity, such as increased stream flow and velocity, due to increased amounts of impervious materials and associated stormwater runoff in the watershed. This may be coupled with a subsequent reduction in precipitation infiltrating through the soil surface to the aquifer, which will ultimately reduce spring baseflow (Field et al. 2003, pp. 326–333; Healy 2010, p. 3).
Excessive groundwater extraction from the aquifer supplying Beaverdam Spring/Creek is a threat to the spring pygmy sunfish (Drennen, pers. obsv. 2007–2011; Sandel 2011, pp. 3–6; National Water Quality Assessment (NAWQA) program,
Commercial water withdrawal from this same aquifer by the Limestone County pumping station, between 2006 and 2011, was over 1 billion gallons (3.9 billion liters) at an estimated flow rate of 450 gpm (1,740 lpm) (Holland, pers. comm., 2011). Heavy groundwater withdrawal by the cities of Huntsville and Madison (east of the spring pygmy sunfish habitat), and the adjacent rural population, is estimated at 16 million gallons per day (62 million liters per day) (U.S. Geological Survey National Aquatic Water Quality Assessment 2001, 2009; Sandel, pers. comm., 2007–2009; Kingsbury 2003, p. 2; Hoos
In several large springs in the United States, groundwater extraction for public consumption and agricultural use has impacted listed fish species by decreasing groundwater levels. Examples include the endangered Devil's Hole pupfish (
The effects on stream flow after water extraction stops may be greater due to the overall decrease in water quantity in the stream. Decreased water levels after pumping in the spring pool correspond to decreased aquatic vegetation in the system; less water quantity increases the desiccation of vegetation, which may negatively impact the species (Jandebeur 1979, pp. 4–8; Mayden 1993, pp. 11–12) by reducing the vegetative cover and contributing to eutrophication
The heavy use of chemicals within spring pygmy sunfish habitat and the recharge areas of occupied spring systems is a potential threat to the species. The intensive agricultural practices and proposed urbanization and industrialization plans within the immediate area of the watershed threaten to contaminate the groundwater in the aquifer supplying the Beaverdam Spring/Creek site (Healy 2010, p. 70). Transportation of contaminants to the aquifer by recharge water can be slow and steady or highly episodic over time (Healy 2010, p. 75). In a similar spring system in northeast Alabama, the threatened pygmy sculpin (
Fertilizers and pesticides are transported to the aquifer by recharge, or into surface water routes, where they eventually enter springs and are a threat to the survival of fishes found there (Hoffman
Aquatic plants, which the spring pygmy sunfish uses for spawning, shelter, and foraging, are also impacted by indiscriminate use of chemicals (Jandebeur 2012, p. 2; Sandel 2011, pp. 1–5, 8–9). Since 1945, herbicide usage, cattle grazing, and irrigation have occurred throughout the spring systems and waterways that are habitat for this species (Jandebeur 1979, pp. 4–8). Aquatic vegetation management within Thorsen Spring, Horton Spring, and the Pryor Spring/Branch system has removed the spring pygmy sunfish's shelter vegetation, egg substrate, and food sites (Jandebeur 1979, pp. 4–8; Mayden 1993, p. 9; Jandebeur 2012, p. 2). Agricultural chemical contamination results in sublethal toxic effects in fish species, affecting the immune system, hormone regulation, reproduction, and developmental stages (Hoffman
Many of the same chemicals used in large-scale agricultural practices are also used by municipal entities including urban and rural households. Stormwater runoff from city streets, construction sites, and storm sewers; household wastes; and leachate from septic tanks and landfills alter the sediment load in aquatic systems and deposit contaminants into surface and groundwater sources (Likens 2009, p. 90). Water quality degradation from chemicals will increase with the expected increase in urbanization and industrialization of the area.
Overgrazing by livestock is a major threat to springs, especially where animals have free range through spring systems and wetlands. Cows tend to congregate in wetland areas, where they consume and trample vegetation, thereby reducing shade around the spring and increasing the water temperature. Livestock also trample banks in springs and spring runs, leading to increased stormwater and sediment runoff, which eliminates habitat for invertebrate prey species (Erman 2002, p. 8; Sada
Timber harvesting and land clearing can also have impacts on spring water quality and associated spring species. Recent tree removal along the boundary of the Wheeler National Wildlife Refuge, which is spring pygmy sunfish habitat and part of the Beaverdam Spring/Creek system, highlights the need for careful management of spring habitats (Hurt, pers. comm., 2012). The removal of the trees greatly reduced the buffer along the Beaverdam Spring/Creek system and will likely increase sedimentation into the stream during stormwater runoff. An appropriate mixture of shade and sunlight is needed for the proper growth and maintenance of vegetation in the spring environment. This vegetation is important to maintaining a stable water temperature and habitat for an invertebrate prey base. Reducing shade by mechanical logging and clearing can increase atypical spring flow, lead to greater spring run flow variability, and increase sedimentation (Erman 2002, p. 9) by altering the existing geomorphology and enhancing stormwater runoff.
When considering whether or not to list a species under the Act, we must identify existing conservation efforts and their effect on the species. Under the Act and our policy implementing this provision, known as the Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100; March 28, 2003), we must evaluate the certainty of an effort's effectiveness on the basis of whether the effort or plan: Establishes specific conservation objectives; identifies the necessary steps to reduce threats or factors for decline; includes quantifiable performance measures for the monitoring of compliance and effectiveness; incorporates the principles of adaptive management; is likely to be implemented; and is likely
The Service entered into a CCAA for the benefit of the spring pygmy sunfish with Belle Mina Farms, Ltd., and the Land Trust of Huntsville and North Alabama (Land Trust) on June 7, 2012. The area covered under the CCAA is approximately 3,200 acres and encompasses the upper 24 percent of habitat occupied by the Beaverdam Spring/Creek metapopulation, which is currently the only known population for the species. Under the CCAA, the landowner agrees to implement conservation measures to address known threats to the species. These measures will help protect the species on his property in the near term and also minimize any incidental take of the species that might occur as a result of conducting other covered activities, if the species becomes federally listed in the future. Conservation measures to be implemented by the landowner on this property will assist in the reduction of chemical usage and stormwater runoff from agricultural fields by establishing and maintaining vegetated buffer zones around Moss and Beaverdam Spring. The landowner also agrees to restrict timber harvest and cattle grazing within the Beaverdam Spring/Creek and Moss Spring habitats, and to refrain from any deforestation, industrial/residential development, aquaculture, temporary or permanent ground water removal installations, and other potentially damaging actions without prior consultation with the Service and the Service's written agreement. These actions will minimize impacts and help to maintain groundwater recharge of the aquifer and adequate spring flow. The Land Trust will conduct monitoring on the progress of the conservation actions and annual habitat analyses.
The CCAA and associated enhancement of survival permit have a duration of 20 years; however, under a special provision of this CCAA, if at any time a 15 percent decline in the status of the spring pygmy sunfish is determined, there will be a reevaluation of the conservation measures set forth in the CCAA. If such a reevaluation reflects a need to change the conservation measures, the amended measure(s) will be implemented or the CCAA will be terminated and the permit surrendered.
Conservation efforts set forth in this CCAA are a positive step toward the conservation of the spring pygmy sunfish. These conservation actions will reduce the severity of some of the threats to the species outlined under Factor A within the upper portion of the Beaverdam Spring/Creek and Moss Spring sites. However, these conservation measures and the CCAA are restricted to only the upper 24 percent of occupied habitat in the Beaverdam Spring/Creek complex. There is no protection for the 24 percent of the species' habitat within the middle reach of the Beaverdam Spring/Creek System. The remaining 52 percent of the species' habitat, although it is federally owned and protected, is considered marginal habitat in the lower reach of the Beaverdam Spring/Creek System. In the middle and non-protected area below the CCAA protected site, land use practices continue to contribute to water quantity and water quality degradation. In addition, the large-scale development planned adjacent to this species' habitat, and outside the boundaries of the land enrolled in the CCAA, continues to pose a threat to the spring pygmy sunfish and its habitat. Furthermore, since this CCAA has been just recently enacted, there has yet to be long-term monitoring, which is needed to evaluate the overall effectiveness of these efforts.
As discussed above, the spring pygmy sunfish and its habitat are currently facing the threats of both declining water quality and quantity. Excessive groundwater usage, and the resultant reduction of the water levels in the aquifer/recharge areas and decreased spring outflow in the Beaverdam Spring/Creek system, is believed to have negatively impacted the spring pygmy sunfish and its habitat. Contamination of the recharge area and aquifer from the intensive use of chemicals (i.e., herbicides, pesticides, fertilizers) within the spring pygmy sunfish's habitat poses a threat to the species' survival. Stormwater discharge from agricultural lands and urban sites compounds the water quality degradation by increasing sediment load and depositing contaminants into surface and groundwater sources. In addition, the large-scale residential and industrial development planned adjacent to the Beaverdam Spring/Creek system will exacerbate the decreasing water quantity and quality issues within the habitat of the spring pygmy sunfish's single metapopulation. Overgrazing by livestock and land clearing near and within the spring systems reduces the vegetation in the spring and increases stormwater and sediment runoff, posing a threat to the single spring pygmy sunfish population, particularly in the middle and lower portions of its range.
Based on our review of the best commercial and scientific data available, we conclude that the present or threatened destruction, modification, and curtailment of its habitat or range is currently a threat to the spring pygmy sunfish and is expected to persist and possibly escalate in the future, particularly in light of the increasing demands for groundwater and large-scale development that is planned near this species' habitat. While the CCAA has reduced some of the threats under this factor, it only covers a portion of the extant range of the species, and will not ameliorate all threats of ongoing and potential water quantity and water quality degradation.
The spring pygmy sunfish is not a commercially valuable species. However, this species has been actively sought by researchers since its discovery in 1937. Overcollecting may have been a localized factor in the historical decline of this species, particularly within the introduced population in Pryor Spring/Branch (Jandebeur 2012, p. 14); however, the overall impact of collection on the spring pygmy sunfish population is unknown (Jandebeur 2012, p. 14). The localized distribution and small size of known populations renders them vulnerable to overzealous recreational or scientific collecting. However, at this time we have no specific information indicating that overcollection rises to the level to pose a threat to the species now or in the future. Therefore, we find that overutilization for commercial, recreational, scientific, or educational purposes does not constitute a threat to the spring pygmy sunfish at this time.
Diseases of the spring pygmy sunfish are poorly known, and we have no specific information indicating that disease occurs within spring pygmy sunfish populations or poses a threat to the species. Eggs, juveniles, and adult spring pygmy sunfish are preyed upon by some invertebrate species, parasites, and vertebrate species such as frogs, snakes, turtles, other fish, and piscivorous (fish-eating) birds. It is
In summary, we conclude that the best scientific and commercial information available indicates, at the present time, that diseases or predation are not threats to the spring pygmy sunfish.
The spring pygmy sunfish and its habitat are afforded some protection from surface water quality and habitat degradation under the Clean Water Act (33 U.S.C. 1251 et seq.), and the Alabama Water Pollution Control Act (Code of Alabama, sections 22–22–1
The State of Alabama maintains water-use classifications through issuance of National Pollutant Discharge Elimination System (NPDES) permits to industries, municipalities, and others; these permits set maximum limits on certain pollutants or pollutant parameters. For water bodies on the Clean Water Act's section 303(d) List of Impaired Water Bodies, States are required under the Clean Water Act to establish a total maximum daily load (TMDL) for the pollutants of concern that will bring water quality into the applicable standard. Many of the water bodies within the occupied range of the spring pygmy sunfish do not meet Clean Water Act standards (Alabama 2008 section 303(d) List of Impaired Water Bodies).
The State of Alabama's surface water quality standards, adopted from the national standards set by the EPA, were established with the intent to protect all aquatic resources within the State of Alabama. These water quality regulations appear to be protective of the spring pygmy sunfish as long as discharges are within permitted limits and are enforced according to the provisions of the Clean Water Act. Unregulated and indiscriminate groundwater and surface water extraction has been identified as a threat to spring species (see Factor A discussion above). Within the State of Alabama, regulations concerning groundwater issues are limited (Alabama Law Review 1997, p. 1). Alabama common law follows a “reasonable use rule” for the extraction of groundwater, and there is a statutory framework that regulates and governs groundwater extraction (Chapman
The spring pygmy sunfish and its habitat are afforded limited protection from surface water quality and habitat degradation under Federal and State regulations. Notwithstanding this limited protection, large volumes of groundwater are continually extracted, and these extractions likely threaten the aquifer that supplies water to spring pygmy sunfish habitat. Degradation of habitat within the current range of this species is ongoing despite the protections afforded by these existing laws. Therefore, based on the best scientific and commercial information available, we consider the inadequacy of existing regulatory mechanisms to be a threat to spring pygmy sunfish.
Impediments to migration, connectivity, and gene flow between or within spring systems are threats to maintaining genetic diversity in the spring pygmy sunfish. Habitat connectivity is critical to maintaining heterozygosity (genetic diversity) within populations of the species and reducing inbreeding, thereby maintaining the integrity of the population (Hallerman 2003, pp. 363–364). Connectivity of spring pygmy sunfish habitats is also necessary for improvement in water quality through flushing and diluting pollutants and increasing water quantity, and by linking spring segments together. Connectivity maintains water flow between Beaverdam Spring/Creek habitats and allows for potential colonization of unoccupied areas when conditions become favorable for the species. Mechanical fragmentation of the habitat has formed smaller, isolated subpopulations of spring pygmy sunfish. Localized environmental changes caused by agriculture, urbanization, and other anthropogenic disturbances of the spring systems throughout the watersheds of the Eastern Highland Rim have exacerbated fragmentation of spring habitat (Sandel 2011, pp. 3–6; 2008, pp. 2–4, 13). Over time, this fragmentation of the spring pygmy sunfish's habitat will impose negative selective pressures on the species' populations, such as genetic isolation; reduction of space for rearing, recruitment, and reproduction; reduction of adaptive capabilities; and increased likelihood of local extinctions (Sandel 2011, pp. 8–10; Burkhead
“Climate” refers to an area's long-term average weather statistics (typically for at least 20- or 30-year periods), including the mean and variation of surface variables such as temperature, precipitation, and wind; “climate change” refers to a change in the mean or variability or both of climate properties that persists for an extended period (typically decades or longer), whether due to natural processes or human activity (Intergovernmental Panel on Climate Change (IPCC) 2007a, p. 26). Although changes in climate occur continuously over geological time, changes are now occurring at an accelerated rate. For example, at continental, regional, and ocean basin scales, recent observed changes in long-term trends include: A substantial increase in precipitation in eastern parts of North American and South America, northern Europe, and northern and central Asia, and an increase in intense tropical cyclone activity in the North Atlantic since about 1970 (IPCC 2007a, p. 30); and an increase in annual average temperature of more than 2 °F
The IPCC used Atmosphere-Ocean General Circulation Models and various greenhouse gas emissions scenarios to make projections of climate change globally and for broad regions through the 21st century (Randall
All models (not just those involving climate change) have some uncertainty associated with projections due to assumptions used, data available, and features of the models; with regard to climate change this includes factors such as assumptions related to emissions scenarios, internal climate variability, and differences among models. Despite this, however, under all global models and emissions scenarios, the overall projected trajectory of surface air temperature is one of increased warming compared to current conditions (Meehl
Changes in climate can have a variety of direct and indirect impacts on species, and can exacerbate the effects of other threats. Rather than assessing “climate change” as a single threat in and of itself, we examine the potential consequences to species and their habitats that arise from changes in environmental conditions associated with various aspects of climate change. For example, climate-related changes to habitats, predator-prey relationships, disease and disease vectors, or conditions that exceed the physiological tolerances of a species, occurring individually or in combination, may affect the status of a species. Vulnerability to climate change impacts is a function of sensitivity to those changes, exposure to those changes, and adaptive capacity (IPCC 2007, p. 89; Glick
While we do not have specific information concerning the effect of climate change on spring pygmy sunfish and its habitat, we do know that climate affects groundwater budgets (inflow and outflow) by influencing precipitation and evaporation and, therefore, the rates and distribution of recharge of the aquifer. Climate also affects human demands for groundwater and affects plant transpiration from shallow groundwater in response to solar energy and changing depths to the water table (Likens 2009, p. 91). Chronic regional drought between 2000 and 2005 within the Tennessee Valley decreased rates of surface water flow and aquifer recharge. Water extraction (of both groundwater and surface water) during drought periods exacerbated damage to the spring pygmy sunfish and its habitat (Sandel 2009, p. 15).
Long-term droughts have impacts on groundwater by increasing groundwater extraction for public consumption and agriculture, which in turn does not replenish surface waters (Likens 2009, p. 91). The prolonged drought within northern Alabama during 2006 to 2008 was exceptional (Jandebeur 2012, p. 13) and, along with the severe drought of 1950 to 1963 (Jandebeur 2012, p. 13), may have contributed to the demise of the Pryor Spring/Branch population of the spring pygmy sunfish by increasing toxic concentrations of herbicides and by increasing the desiccation of aquatic vegetation.
The CCAA will likely reduce some of the threats to groundwater caused by climate change within the upper portion of the species' range by minimizing impacts and helping to maintain groundwater recharge of the aquifer, protecting surface water flow, and limiting groundwater extraction. Under the CCAA, the Service will provide technical assistance and groundwater management advice. Additionally, adaptive management measures of the CCAA concern groundwater usage, including pumping from the aquifer and avoidance of temporary or permanent ground water removal installations. Also under the CCAA, the landowner will not engage in practices that may disturb water quality during low water levels in drought periods, such as pesticide and herbicide use, stock farm ponds, and aquaculture, within the designated protected area. These conservation measures will help protect the species on this property in the near term and also minimize any incidental take of the species that might occur as a result of conducting other covered activities, should the species become listed in our final determination. However, because of anthropogenic factors such as urbanization or intensive agriculture, these conservation measures may be inadequate during drought
In summary, habitat fragmentation and its resulting effects on gene flow and potential demographic impacts within the population is a substantial threat and is affecting the spring pygmy sunfish's continued existence. Climate change, in particular drought, affects groundwater budgets (inflow and outflow) by influencing the rates and distribution of recharge of the aquifer, affects human demands for groundwater, and affects plant transpiration from shallow groundwater reserves. Based on the best available information, we conclude that the spring pygmy sunfish faces threats from other natural or manmade factors affecting its continued existence. These threats continue despite the beneficial effects of the CCAA.
As required by the Act, we conducted a review of the status of the species and considered the five factors in assessing whether the spring pygmy sunfish is endangered or threatened throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the spring pygmy sunfish. We reviewed the petition, information available in our files, and other available published and unpublished information, and we consulted with recognized spring pygmy sunfish experts and other Federal and State agencies.
The identified threats to the spring pygmy sunfish are attributable to Factors A, D, and E, as described in more detail in the Summary of Information Pertaining to the Five Factors section above. The primary threat to the species is from habitat modification (Factor A) in the form of planned urban and industrial development of land adjacent to spring pygmy sunfish habitat and the resultant impacts to the surrounding aquifer recharge area, coupled with ongoing threats associated with ground and surface water withdrawal and water quality within the spring systems where this species currently occurs and historically occurred. We find that this threat of increased urban and industrial development and the associated infrastructure, along with the current human use of the area, is a threat to the spring pygmy sunfish, causing direct mortality as well as permanent loss, fragmentation, or alteration of its habitat.
The degradation of habitat throughout the species' range is ongoing despite the protections afforded by existing Federal and State laws and policies (Factor D). Habitat fragmentation and its resulting effects on gene flow and potential demographic impacts within the population is a threat (Factor E) and is affecting the spring pygmy sunfish's continued existence. The recently established CCAA provides a measure of protection for the species in the upper reach of the population, with the implementation of conservation measures that increase or preserve water quantity and reduce water quality degradation and prohibit any potentially damaging land use actions in that area (Factor A). However, these conservation measures only extend to that portion of the population enrolled in the CCAA, which protects 24 percent of the total occupied habitat. Although this CCAA reduces some of the threats under Factors A and E, the CCAA is not able to ameliorate all of the threat factors to this species rangewide.
Based on our evaluation of the best scientific and commercial information available regarding the past, present, and future threats faced by the spring pygmy sunfish, we have determined the continued existence of the spring pygmy sunfish is under threat from: Ongoing and planned urban and industrial development and associated activities; ongoing agricultural practices, including water extraction from groundwater and surface water; the reduction of aquifer recharge, resulting in changes in hydrology; surface and groundwater pollution; past and present use of fertilizers and pesticides; climate change; inadequate regulatory mechanisms; and habitat fragmentation and resultant interruption in gene flow. These threats exist despite the beneficial effects of the CCAA. Because the species faces these threats throughout its extremely limited range, we find that the spring pygmy sunfish is warranted for listing throughout its range.
The Act defines an endangered species as any species that is in danger of extinction throughout all or a significant portion of its range, and a threatened species as one that is likely to become endangered in the foreseeable future throughout all or a significant portion of its range. In this proposal of the status of the spring pygmy sunfish, we take into account the protection afforded to the springhead and upper portion of the population through the established CCAA (helping to moderate threats under Factors A and E), and look carefully at future potential threats, especially the potential impact of residential and commercial development, which is currently only in the planning stage. Based on our evaluation of the best available scientific and commercial information related to the extremely restricted range of the species, threats to it and its habitat, future potential threats, and conservation measures currently underway through an established CCAA, we have determined that the species is threatened by multiple factors (Factors A, D, and E) throughout all of its range. Specifically, we have determined that the species is likely to become endangered in the foreseeable future, and therefore meets the definition of a threatened species. Threatened status was determined to be proposed for the spring pygmy sunfish because it is not considered to be in immediate danger of extinction primarily due to the ongoing conservation measures in the CCAA, which offers protection to the Beaverdam springhead and the most robust portion of the population. In addition, impacts to the species from large-scale industrial and residential development adjacent to the spring are not imminent, as developments are still in the planning stage. The species is not endangered, because it is not currently in immediate danger of extinction, but as noted, we find that it is likely to become in danger of extinction throughout its range in the foreseeable future, which is the definition of a threatened species. Because the range of the species consists of a single occurrence location, and we have determined that the species is at risk of becoming endangered in that location, we do not need to further analyze whether there may be a significant portion of the range of the species that has a different status.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition of a species through listing results in increased public awareness and more focused conservation efforts by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection measures required of Federal agencies and the prohibitions against certain activities involving listed wildlife are discussed, in part, below, and
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed, preparation of a draft and final recovery plan, and revisions to the plan as significant new information becomes available. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The recovery plan identifies site-specific management actions that will achieve recovery of the species, measurable criteria that determine when a species may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (comprised of species experts, Federal and State agencies, nongovernment organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribal, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may also occur on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. The CCAA between the Service, Belle Mina Farms Ltd., and the Land Trust identifies several strategies that will support recovery efforts, including: (1) Maintenance of vegetation buffer zones along the springs; (2) prohibition of cattle within the spring; (3) prohibition of deforestation, land clearing, industrial development, residential development, aquaculture, temporary or permanent ground water removal installations, stocked farm ponds, pesticide and herbicide use, and impervious surface installation within the protected area of the CCAA; and (4) establishment of a biological monitoring program for the spring pygmy sunfish and its habitat.
If this species is listed, funding for recovery actions will become available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, under section 6 of the Act, the State of Alabama would be eligible for Federal funds to implement management actions that promote the protection and recovery of the spring pygmy sunfish. Information on our grant programs that are available to aid species recovery can be found at:
Although the spring pygmy sunfish is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include Federal activities that may affect spring pygmy sunfish, including, but not limited to: The carrying out or the issuance of permits for discharging fill material on wetlands for road or highway construction; installation of utility easements; development of residential, industrial, and commercial facilities; unsustainable farming practices, including indiscriminate use of chemicals, and decreasing buffers around fields and drainage ditches and swales; channeling or other stream geomorphic changes; discharge of contaminated or sediment laden waters; wastewater facility development; and excessive groundwater and surface water extraction. Additional actions that may require conference or consultation or both include:
(1) Actions that would significantly alter the structure and function of the spring system. Such actions or activities could include, but are not limited to, the filling or excavation of spring heads, spring pools, spring-fed wetlands, and spring runs. The filling or excavation of the spring system would alter the hydrology of the site and would destroy the vegetation, water quality, and water quantity where spring pygmy sunfish spends all of its life stages. The filling or excavation of the spring systems could result in the direct mortality of the species where the species is known to occur.
(2) Actions that would significantly alter the aquatic vegetation structure in and around the spring associated wetland. Such actions or activities could include, but are not limited to, vegetation cutting or herbicide usage for expanding or maintaining roads, construction of new roads, maintenance of agricultural fields, construction of new agricultural fields, development of new residences, development of new commercial establishments, or industrial development. Alteration of the vegetation structure would likely change the spring-fed wetland characteristics by changing the microhabitat (e.g., change in temperature and humidity levels) and could result in direct mortality of individuals and egg clutches through desiccation from sun exposure.
(3) Actions that may alter the natural outflow and quantity of water from the spring head and through the spring run into the stream channels. Such actions or activities could include, but are not limited to, changes in the hydrology of Beaverdam Spring/Creek and related recharge area and aquifer. These actions include, but are not limited to, excessive water extraction for public, municipal, industrial, and agricultural usages.
(4) Actions that would significantly degrade water quality parameters such as pH, alkalinity, conductivity, turbidity, and others (i.e., contaminants, excess nutrients). Stormwater discharge laden with chemicals and sediments can enter groundwater and surface water systems. Decreasing water quantity concentrates chemicals and also encourages eutrophic (nutrient rich) conditions.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions of section 9(a)(1) of the Act, and its implementing regulations at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt any of these), import, export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species. The regulations at 50 CFR 17.31 extend the prohibitions listed above to threatened species, with certain exceptions. Under the Lacey Act (18 U.S.C. 42–43; 16 U.S.C. 3371–3378), it is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to agents of the Service and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species, and at 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for take for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
It is our policy, as published in the
(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act;
(2) Introduction of species that compete with or prey upon the spring pygmy sunfish;
(3) The unauthorized release of biological control agents that attack this species' habitat or any of its life stages;
(4) Unauthorized modification of the vegetation composition or hydrology, or violation of any discharge or water withdrawal permit that results in harm or death to any individuals of this species or that results in degradation of its occupied habitat to an extent that essential behaviors such as breeding, feeding, and sheltering are impaired;
(5) Unauthorized destruction or alteration of their habitats (such as channelization, dredging, sloping, removing of substrate, or discharge of fill material) that impairs essential behaviors, such as breeding, feeding, or sheltering, or that results in killing or injuring spring pygmy sunfish; and
(6) Unauthorized discharges or dumping of toxic chemicals or other pollutants into the aquifer directly through wells or into the spring system or indirectly into recharge areas supporting spring pygmy sunfish that kills or injures the species or that otherwise impairs essential life-sustaining requirements, such as breeding, feeding, or sheltering (destruction of vegetation and substrate).
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Mississippi Ecological Services Field Office (see
It is our intent to discuss below only those topics directly relevant to the designation of critical habitat for the spring pygmy sunfish in this section of the proposed rule.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event
Under the first prong of the Act's definition of critical habitat, areas within the geographic area occupied by the species at the time it is listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements (PCEs) such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are the elements of physical or biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographic area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We designate critical habitat in areas outside the geographic area occupied by a species only when a designation limited to occupied habitat would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. If we list the spring pygmy sunfish and designate critical habitat for the species, areas that are important to the conservation of the species, both inside and outside the critical habitat designation, would continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools would continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation would not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that the Secretary designate critical habitat at the time the species is determined to be endangered or threatened to the maximum extent prudent and determinable. These regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species; or (2) such designation of critical habitat would not be beneficial to the species.
As we have discussed above under the Factor B analysis, there is currently no imminent threat of take attributed to collection (for commercial, recreational, scientific, or educational purposes) of this species. Moreover, there is no information to indicate that identification of critical habitat is expected to create such a threat to the species. In the absence of a finding that the designation of critical habitat would increase threats to a species, then a prudent finding is warranted if there are any benefits to a critical habitat designation. Potential benefits of designation include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species.
The primary regulatory effect of critical habitat is the section 7(a)(2) requirement that Federal agencies refrain from taking any action that destroys or adversely modifies critical habitat. Lands proposed for designation as critical habitat would be subject to Federal actions that trigger section 7 consultation requirements. These include land management planning and Federal agency actions. There may also be educational or outreach benefits to the designation of critical habitat. Critical habitat designation identifies those physical and biological features of the habitat essential to the conservation of spring pygmy sunfish and that may require special management and protection. Accordingly, this designation would provide information to individuals, local and State governments, and other entities engaged in activities or long-range planning in areas essential to the conservation of the species. Conservation of the spring pygmy sunfish and the essential features of its habitat requires habitat management, protection, and restoration, which would be facilitated
Our regulations (50 CFR 424.12(a)(2)) state that critical habitat is not determinable when one or both of the following situations exist: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking, or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.
Delineation of critical habitat requires identification of the physical and biological habitat features that are essential to the conservation of the species. We have reviewed the available information pertaining to the known distribution of spring pygmy sunfish and the characteristics of the habitat currently occupied. This information represents the best scientific and commercial data available and leads us to conclude that, although available information is limited, it is sufficient to identify specific areas that meet the definition of critical habitat. Therefore, we have found that critical habitat is determinable for spring pygmy sunfish.
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific physical and biological features required for the spring pygmy sunfish from studies of this species' habitat, ecology, and life history as described in the Background section of this proposed rule and information presented below. There is limited information on this species' specific habitat requirements, other than it requires springs and connecting spring-fed reaches and wetlands; an adequate groundwater and surface water hydrology; and clean, cool water and the associated vegetation and invertebrates. To identify the physical and biological needs of the species, we have relied on current conditions at the locations where the species exists today and the limited information we have on historical sites, limited information available on this species and its close relatives, and factors associated with the decline and extirpation of this and other spring-associated fish species.
Spring pygmy sunfish depend on geomorphically stable spring systems including the spring head, spring run, and spring pools. The spring systems used by the species also include transition zones between these features on moderately low-gradient topographic slopes that feather out into spring-fed wetland pools. The spring pygmy sunfish inhabits spring pools, spring runs, and spring-fed streams and pools with substrates of silt, sand, and gravel.
The current range of the spring pygmy sunfish is reduced to localized sites due to fragmentation of the spring systems on which it depends. Fragmentation of the species' habitat has isolated populations and reduced available space for spawning, rearing of young, concealment, and foraging. As a result, the spring pygmy sunfish's adaptive capability has been reduced, and the likelihood of local extinctions has increased (Burkhead
Therefore, based on the information above, we identify springs and connecting spring-fed reaches and wetlands of geomorphically stable, relatively low-gradient, headwater springs with spring heads, spring runs, and spring pools that filter into shallow vegetated wetlands to be an essential physical or biological feature for the spring pygmy sunfish. The connectivity of these habitats is essential in accommodating feeding, breeding, growth, and other normal behaviors of the spring pygmy sunfish and in promoting gene flow within the population.
Exceptional water quality at the spring heads and pools, and adequate water quality throughout the habitat, maintained by unobstructed water flow through connected spring habitats, are essential for normal behavior, growth, and viability during all life stages of the spring pygmy sunfish. Suitable habitat conditions for the spring pygmy sunfish have not been investigated thoroughly; however, some data specific to the species are available for the following water quality parameters: pH, water temperature, specific conductivity (ability of water to conduct an electric current, based on dissolved solids in the water), and alkalinity (capacity of solutes in an aqueous system to neutralize acid as HCO3). Spring pygmy sunfish males establish territories and spawn in late February through April, when water quality parameters are within a suitable pH range of 6.0 to 7.7, and water temperatures are between 57.2 and 68 °F (14 and 20 °C) (Mettee 2008, p. 36; Sandal, 2007, p. 2; Rakes
Essential water quality attributes for the spring pygmy sunfish may be inferred from those of other fish species living in medium water flow streams along with baseline spring and subsurface water quality information obtained from systems within Limestone County, adjacent counties, and elsewhere. Based on yearly averages, these include: (1) Dissolved oxygen levels greater than 6 parts per million (ppm); (2) temperatures between 45 and 80 °F (7.2 and 26.7 °C), with spring egg incubation temperatures from 54 to 65 °F (12.2 to 18.3 °C); (3) specific conductivity of less than approximately 300 micro Siemens per centimeter at 80 °F (26.7 °C); and (4) concentrations of free or suspended solids (organic and
Nonpoint and point sources of ammonia and chlorine from commercial water extraction facilities and agricultural fields may be primary factors in reducing the quality of spring run waters for spring pygmy sunfish. Agricultural withdrawals can reduce or eliminate the volume of groundwater that is being discharged into the species' habitat and affect water temperatures and other physical parameters.
Temperature greatly influences the form and toxicity of ammonia and chlorine. Higher temperatures result in a shift from the nontoxic ammonium ion (NH4
Therefore, we identify the following water quality parameters to be an essential physical or biological feature for the spring pygmy sunfish, based on yearly averages: Optimal temperatures of 57.2 to 68 °F (14 to 20 °C) and not exceeding 80 °F (26.7 °C); pH of 6.0 to 7.7; dissolved oxygen of 6.0 ppm or greater; specific conductivity no greater than 300 micro Siemens per centimeter at 80 °F (26.7 °C); and low concentrations of free or suspended solids with turbidity measuring less than 15 NTU and 20 mg/L TSS.
Water flow and water quantity may also vary according to season, precipitation events, and human activities, such as groundwater and surface water extraction, within the recharge area of the spring system. Agriculture, industrial or human consumption, silviculture, maintenance of roadways and utilities, and urbanization and industrialization projects are activities that may use water that would otherwise recharge spring systems. Connectivity of spring systems is also important for maintaining water quality. Adequate groundwater and recharge rates, and spring water outflow, are important to the conservation of the spring pygmy sunfish.
Therefore, based on the information above, we identify a hydrologic flow regime (magnitude, frequency, duration, and seasonality of discharge overtime) necessary to maintain spring habitats to be an essential physical or biological feature for the spring pygmy sunfish. The instream flow from groundwater sources (spring and seep) maintains a velocity and a continuous daily discharge from the aquifer that allows for connectivity between habitats. Instream flow is stable and does not vary during water extraction, and the aquifer recharge maintains adequate levels to supply water flow to the spring head. The flow regime does not significantly change during storm events.
All pygmy sunfish species stalk invertebrates by using the dense submergent vegetation within the spring system to conceal their foraging activity (Walsh and Burr 1984, pp. 45–46). The aquatic vegetation provides a ready source of food (Petty
The spring pygmy sunfish relies heavily on aquatic and emergent vegetation in the shallow water along the margins of the runs and pools of the spring systems where the fish occurs. The vegetation provides cover and shelter necessary for breeding, reproduction and growth of offspring, concealment from predators, and foraging. Species of submergent and emergent vegetation providing important habitat for the spring pygmy sunfish include clumps and stands of
Therefore, based on the information above, we identify aquatic, emergent and semi-emergent vegetation along the margins of spring runs and submergent vegetation that is adequate for breeding, reproducing, and rearing young; providing cover and shelter from predators; and supporting the prey base of aquatic macroinvertebrates eaten by spring pygmy sunfish to be an essential physical or biological feature for the spring pygmy sunfish.
Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of the spring pygmy sunfish in areas occupied at the time of listing (i.e., areas that are currently occupied), focusing on the features' primary constituent elements. We consider primary constituent elements (PCEs) to be the elements of physical and biological features that provide for a species' life-history processes and that are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, as discussed above, we determine that the PCEs specific to the spring pygmy sunfish are:
(1)
(2)
(3)
(4)
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection.
We find that the essential features within the area occupied at the time of listing may require special management consideration or protection due to threats to spring pygmy sunfish and or its habitat. The sole proposed unit that is occupied is adjacent to roads, homes, or other manmade structures in which various activities in or adjacent to the critical habitat unit may affect one or more of the physical and biological features. The features essential to the conservation of this species are the spring systems that may require special management considerations or protection to reduce the following threats or potential threats: Reduction of water quantity of the groundwater/surface hydrology by water extraction from springs or the aquifer that provides water to the spring, and surface flow to Beaverdam Creek and Pryor Branch; changes in the composition and abundance of vegetation in the spring; alteration of the bottom substrate and normal sinuosity of the system from fill material within the spring systems and spring-fed wetlands for development projects; degradation of water quality from uncontrolled discharge of stormwater draining agricultural fields, roads, bridges, and urban areas; careless agricultural practices including unmanaged livestock grazing; and road, bridge, and utility easement maintenance (e.g., use of herbicides and resurfacing or sealant materials).
Management activities that could ameliorate these threats or potential threats include, but are not limited to: Establishing permanent conservation easements or land acquisition to protect the species on private lands; establishing additional conservation agreements on private lands to identify and reduce threats to the species and its features; minimizing habitat disturbance, fragmentation, and destruction by maintaining suitable fish passage structures under roads; providing significant buffers around the spring components such as the spring head, spring pool, and spring run; monitoring and regulating the withdrawal and use of groundwater and surface water of the Beaverdam Spring/Creek system; preventing the diminishing of the aquifer recharge area by increasing the pervious area for percolation of rainfall back into the aquifer; limiting impervious substrates; and minimizing water quality degradation by stormwater runoff with catchment basins, vegetated bioswales, and other appropriate best management practices.
As required by section 4(b)(2) of the Act, in developing this proposed rule, we used the best scientific data available to propose critical habitat for the spring pygmy sunfish. We reviewed available information that pertains to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas outside those currently occupied (which would mean occupied at the time of listing) is necessary to ensure the conservation of the species. We are proposing to designate critical habitat in areas within the geographic area currently occupied by the species (i.e., that would be considered occupied at the time of listing). We are also proposing to designate specific areas outside the geographic area currently occupied by the species but that were historically occupied, because such areas are essential for the conservation of the species.
We began our determination of which areas to propose for critical habitat with an assessment of the critical life-history components of the spring pygmy sunfish, as they relate to habitat. We then evaluated current and historical sites to establish what areas are currently occupied and contain the physical and biological features that are essential to the conservation of the species and that may require special management considerations or protection, as well as unoccupied sites that might be essential for the conservation of the species. We reviewed the available information pertaining to historic and current distributions, life histories, and habitat requirements of this species. Our sources included surveys, unpublished reports, and peer-reviewed scientific literature prepared by the Alabama Department of Conservation and Natural Resources, Alabama Geological Survey, Athens State University, University of Alabama, the Service, spring pygmy sunfish researchers and others, as well as Geographic Information System (GIS) data (such as species occurrence data, habitat data, land use topography, digital aerial photography, and ownership maps).
Currently, occupied habitat is confined to a single population consisting of four spring pools within the upper Beaver Dam Spring/Creek complex in Limestone County, Alabama. We believe that this area contains all PCEs to support life-history functions essential to the conservation of the species. However, this single population is at risk of extirpation from stochastic events such as periodic droughts and from existing or potential human-induced events (i.e., development, excessive water extraction, chemical contamination). To reduce the risk of losing this single population through these processes, it is important to establish additional populations in areas where suitable habitat exists. Therefore, in identifying unoccupied spring/stream reaches that could be essential for the conservation of the spring pygmy sunfish, we first considered the availability of potential habitat throughout the historical range that may be suitable for the survival and persistence of the species. We eliminated from consideration spring/stream reaches without any historical records of spring pygmy sunfish occurrences. We identified two sites with recorded historical occurrences of the spring pygmy sunfish: one in Pryor Springs in Limestone County, Alabama, and a second in Cave Springs in Lauderdale County, Alabama. The Cave Spring site was excluded from consideration because it was inundated with the formation of Wheeler Reservoir in 1939. However, the Pryor Spring/Branch site, which supported a population of spring pygmy sunfish prior to 2007 west of Highway 31, was
We delineated the critical habitat unit boundaries by determining the appropriate length within these streams by identifying the upper spring head (water source), spring pool, spring run, spring-fed wetlands, seeps, and ephemeral streams draining into the spring systems. We digitized the area boundary based upon visual interpretation of wetland vegetation using ARCGIS. The high water line in springs indicates stable flow under normal conditions. As defined at 33 CFR 329.11, the ordinary high water line on nontidal rivers and streams is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural water line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas. For the spring pools and associated spring-fed wetlands, the area was determined and delineated by the presence of emergent vegetation patterns and topography as noted on aerial photographs and topographical maps, and during field visits. In order to set the upstream and downstream limits of these critical habitat units, we used the spring head as the uppermost point, identified by topographic maps, field visits, and available landmarks (i.e., bridges and road crossings). Locations of the spring pygmy sunfish below or downstream of the spring head were included in order to ensure incorporation of all potential sites of occurrence. These stream reaches were then digitized using 7.5′ topographic maps and ARCGIS to produce the critical habitat maps.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features for spring pygmy sunfish. The scale of the map we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger a section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in this preamble. We will make the coordinates or plot points or both on which each map is based available to the public on
We are proposing two units as critical habitat for spring pygmy sunfish. The critical habitat areas described below constitute our current best assessment of the areas that meet the definition of critical habitat for spring pygmy sunfish. The two areas proposed as critical habitat are as follows: (1) Beaverdam Spring/Creek, which is currently occupied; and (2) Pryor Spring/Branch, which is currently unoccupied. Table 1 shows the occupancy of the units and ownership of the proposed critical habitat units for the spring pygmy sunfish.
We present brief descriptions of each unit and reasons why they meet the definition of critical habitat below. The proposed critical habitat units include the spring systems, which are composed of the spring heads and the flooded spring pools and spring-fed wetlands within Beaverdam Spring/Creek and Pryor Spring/Branch.
Unit 1 includes a total of 9.5 km (5.9 mi) of Beaverdam Spring/Creek, northeast of Greenbrier, Alabama, from the spring head, 5.6 km (3.5 mi) north of Interstate 565, to 3.9 km (2.4 mi) south of Interstate 565. Unit 1 encompasses Moss, Horton, and Thorsen springs. This includes a total of 580.7 hectares (1,435 acres).
Almost 5.9 km (3.7 mi), or 63 percent of the stream reach, and 237 ha (586 ac) (41 percent) of the area are privately owned. The remaining 3.5 km (2.21 mi), or 37 percent of the stream reach, and 344 ha (849 ac) of the area (59 percent) are owned by the Service as part of the Wheeler National Wildlife Refuge.
Unit 1 is currently occupied and contains the only known metapopulation of the species. Unit 1 contains all elements of the essential physical or biological features of the
Threats to the spring pygmy sunfish and its habitat in Unit 1 that may require special management of the physical and biological features include the potential of increased agriculture, urbanization, and industrialization activities (such as channel modification for flood control, construction of impoundments, and water extraction) that could result in increased stormwater runoff and erosion; significant changes in the existing spring flow regime due to water extraction, inadequate stormwater management, and water diversion; significant alteration of water quality and quantity; and significant changes in streambed material composition and quality as a result of construction projects and maintenance activities, resulting in the destruction of emergent and aquatic vegetation; off-road vehicle use; sewer, gas, and water easements; bridge and road construction and maintenance; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water.
There are three paved road crossings over this unit, one unpaved dirt road, and one railroad. Spring pygmy sunfish movement might be limited due to changes in flow regime and habitat including changes in emergent vegetation, water quality, and water quantity, and due to stochastic events such as drought. Populations of spring pygmy sunfish are small and isolated from one another due to the non-homogeneous habitats within Unit 1.
Unit 2 includes 3.4 km (2.1 mi) of Pryor Spring and Pryor Branch from the spring head, about 3.7 mi (5.9 km) south of Tanner, Alabama, and just east of Highway 31, downstream to the bridge where it intersects with Harris Station/Thomas L. Hammons Road. This also includes a total of 73.6 ha (182 ac) in area.
Almost 3.1 km (1.95 mi), or 93 percent of the stream reach, and 65.6 ha (162 ac) of the land area (89 percent) are federally owned by the Tennessee Valley Authority and managed by the State as the Swan Creek Wildlife Management Area. The remaining 0.2 km (0.15 mi) of stream reach (7 percent) and 8.1 ha (20 ac) (11 percent) of the land area are privately owned.
Unit 2 is currently unoccupied but is a historical location for the spring pygmy sunfish, and is essential for its conservation and eventual recovery. The Pryor Spring/Branch system contains scattered spring-influenced wetlands of aquatic and emergent vegetation in spring pools, spring runs, and shallow water wetlands on the margins of the small tributaries. Populations of spring pygmy sunfish were historically noted as small and isolated within specific habitat sites of Pryor Spring/Branch. An attempt to reintroduce the species back into Pryor Springs (east of Highway 31) was unsuccessful in the 1980s.
A portion of the spring head has been mechanically deepened and the banks steepened in order to promote water extraction for cropland irrigation. Nevertheless, there is a significant seasonal flow of groundwater entering the system throughout the year from the springhead (portions of PCEs 1, 2, and 3). Adequate aquatic vegetation (PCE 4) occurs in areas throughout this spring system, providing potential habitat for the normal life stages and behavior of the spring pygmy sunfish and the species' prey sources. Water flow (PCE 3) from the main springhead, along with other unidentified springs and seeps within the system, provides sufficient water quantity to allow for connectivity between spawning, rearing, foraging, and resting sites, promoting gene flow throughout the spring system. While the existence of PCEs is not necessary for the designation of unoccupied habitat, their presence in Unit 2 only reinforces the value of the Pryor Spring/Branch to the conservation of the spring pygmy sunfish.
As this species is only known from a single population, it is important that additional populations be established to buffer against extirpation of the one known site from stochastic events, such as drought. Therefore, we have determined this unit is essential for the conservation of the species because it provides potential for the establishment of an additional population of the spring pygmy sunfish, thereby reducing this species' risk of extinction, and would contribute to the species' eventual recovery.
In summary, we propose designating critical habitat in two areas, one which is occupied and which contains sufficient primary constituent elements to support the life-history functions essential to the conservation of the species and that require special management, and one which is currently unoccupied, which historically supported the species and has been determined to be essential for the conservation of the species.
As discussed in the Critical Habitat section above, we recognize that designation of critical habitat may not include all habitat areas that we may eventually determine are necessary for the recovery of the species and that, for this reason, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not promote the recovery of the species.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, or are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action;
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiating of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for the spring pygmy sunfish. As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a federal agency, should result in consultation for the spring pygmy sunfish. These activities include, but are not limited to:
(1) Actions that would alter the geomorphology of the spring system and its associated habitats. Such activities could include, but are not limited to, instream excavation or dredging, impoundment, channelization, and discharge of fill materials. These activities could cause aggradation or degradation of the channel bed elevation or significant bank erosion and result in entrainment or burial of this species, destruction of the associated aquatic vegetation, and other direct or cumulative adverse effects to this species and its life cycle.
(2) Actions that would significantly alter the existing flow regime, related aquifer, and recharge areas. Such activities could include, but are not limited to, impoundments, water diversion, channel constriction or widening, placement of pipes, culverts or bridges, and groundwater and surface water extraction. These activities could eliminate or reduce the habitat necessary for growth, reproduction, and connectivity of spring pygmy sunfish populations.
(3) Actions that would significantly alter water chemistry or water quality (for example, temperature, pH, contaminants, and excess nutrients). Such activities could include, but are not limited to, the unsustainable use or release of chemicals, such as pesticides and fertilizers and biological pollutants, into surface water or groundwater. These activities could alter water conditions that are beyond the tolerances of this species and result in direct or cumulative adverse effects to the species and its life cycle.
(4) Actions that would significantly alter streambed material composition and quality by increasing sediment deposition or filamentous algal growth. Such activities could include, but are not limited to, construction and maintenance projects of subdivisions, roads, bridges, stormwater systems and utility easements; unsustainable livestock grazing and timber harvest; off-road vehicle use; and other watershed and floodplain disturbances that release sediments or nutrients into the water through stormwater runoff. These activities could eliminate or reduce habitats necessary for the growth and reproduction of the spring pygmy sunfish by causing excessive sedimentation and a decrease in water quality for the species and associated vegetation and prey base by nitrification, leading to excessive filamentous algal growth, turbidity, and an increase in water temperatures.
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108–136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation. Therefore, we are not exempting any lands owned or managed by the DOD from this designation of critical habitat for the spring pygmy sunfish under section 4(a)(3)(B)(i) of the Act.
Section 4(b)(2) of the Act states that the Secretary must designate or make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, and any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we are preparing an analysis of the economic impacts of the proposed critical habitat designation and related factors.
During the development of our proposed rule, we have identified certain sectors and activities that may potentially be affected by a designation of critical habitat for spring pygmy sunfish. These sectors include commercial development and urbanization, along with the accompanying infrastructure associated with such projects such as road, storm water drainage, bridge, and culvert construction and maintenance. As part of our economic analysis, we are collecting information and initiating our analysis to determine (1) which of these sectors or activities are or involve small business entities and (2) to what extent the effects are related to the spring pygmy sunfish being listed as a threatened species under the Act (baseline effects) or are attributable to the designation of critical habitat (incremental effects). We believe that the potential incremental effects resulting from a designation would be small. However, one purpose of the economic analysis will be to determine if this is the case. Accordingly, we are requesting any specific economic information related to small business entities that may be affected by this designation and how the designation may impact small businesses.
We will announce the availability of the draft economic analysis as soon as it is completed. At that time, copies of the draft economic analysis will be available for downloading from the Internet at
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense (DOD) where a national security impact might exist. In preparing this proposal, we have determined that none of the lands within the proposed designation of critical habitat for the spring pygmy sunfish are lands owned or managed by the DOD, and, therefore, we anticipate no impact on national security. Consequently, the Secretary does not intend to exercise his discretion to exclude any areas from the final designation based on impacts on national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic and national security impacts. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this proposal, we have determined that there are currently no HCPs for the spring pygmy sunfish, and the proposed designation does not include any tribal lands or trust resources. The CCAA between the Service, the Land Trust, and Belle Mina Farms, Ltd., covers the upper 24 percent of the Beaverdam Spring/Creek complex (Unit 1). This management plan contains numerous conservation measures protective of the spring pygmy sunfish. It provides a measure of protection for the species in the upper portion of the only currently occupied site. However, although this CCAA reduces some of threats and is one of the reasons the species is proposed for listing as threatened rather than endangered, the magnitude of this threat reduction is not at the level to ameliorate threats to this species throughout its range (see Finding section, above, for additional discussion). Thus, the CCAA alone is not sufficient to preclude the need to list the species as threatened. We also anticipate no impact on tribal lands, partnerships, or HCPs from this
In accordance with our joint policy on peer review published in the
We will consider all comments and information we receive during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.
The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include such businesses as manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and forestry and logging operations with fewer than 500 employees and annual business less than $7 million. To determine whether small entities may be affected, we will consider the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
Importantly, the incremental impacts of a rule must be both significant and substantial to prevent certification of the rule under the RFA and to require the preparation of an initial regulatory flexibility analysis. If a substantial number of small entities are affected by the proposed critical habitat designation, but the per-entity economic impact is not significant, the Service may certify. Likewise, if the per-entity economic impact is likely to be significant, but the number of affected entities is not substantial, the Service may also certify.
Under the RFA, as amended, and following recent court decisions, Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and not the potential impacts to indirectly affected entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to adversely modify critical habitat. Therefore, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Under these circumstances, it is our position that only Federal action agencies will be directly regulated by this designation. Therefore, because Federal agencies are not small entities, the Service may certify that the proposed critical habitat rule will not have a significant economic impact on a substantial number of small entities.
We acknowledge, however, that in some cases, third-party proponents of the action subject to permitting or funding may participate in a section 7 consultation, and thus may be indirectly affected. We believe it is good policy to assess these impacts if we have sufficient data before us to complete the
In conclusion, we believe that, based on our interpretation of directly regulated entities under the RFA and relevant case law, this designation of critical habitat will only directly regulate Federal agencies, which are not by definition small business entities. As such, we certify that, if promulgated, this designation of critical habitat would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. However, although not necessarily required by the RFA, in our draft economic analysis for this proposal we will consider and evaluate the potential effects to third parties that may be involved with consultations with Federal action agencies related to this action.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect the designation of critical habitat for the spring pygmy sunfish to significantly affect energy supplies, distribution, or use. The proposed critical habitat units are remote from energy supply, distribution, or use activities. We are not aware of any oil and gas exploration or development within the region to date, and the area has not been identified as a shale play for oil and gas extraction (hydraulic fracturing) (Satterfield 2011, p. 3) Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)–(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, and critical habitat would not shift the costs of the large entitlement programs listed above on to State governments.
(2) We do not believe that this rule would significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. In addition, adjacent upland properties are owned by private entities or State partners. Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis and revise this assessment if appropriate.
In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for spring pygmy sunfish in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this proposed designation of critical habitat for the spring pygmy sunfish does not pose significant takings implications for lands within or affected by the designation.
In accordance with Executive Order 13132 (Federalism), the proposed rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in Alabama. The designation of critical habitat in areas currently occupied by the spring pygmy sunfish (i.e., Unit 1: Beaverdam Spring/Creek) would impose few if any additional restrictions to those put in place through listing, and, therefore, has would have little incremental impact on State and local governments and their activities. There may be a slight impact on State and local government and their activities if critical habitat is designated in Unit 2: Pryor Spring/Pryor Branch, because this
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. This proposed rule uses standard property descriptions and identifies the elements of physical or biological features essential to the conservation of the spring pygmy sunfish within the designated areas to assist the public in understanding the habitat needs of the species.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (NEPA), need not be prepared in connection with listing a species as endangered or threatened under the Act. We published a notice outlining our reasons for this determination in the
It is also our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses under NEPA in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
In accordance with the President's memorandum of April 29, 1994, (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.
The State of Alabama does contain tribal lands, however, none occur within the proposed critical habitat designation. Therefore, we are not proposing to designate critical habitat for spring pygmy sunfish on tribal lands.
A complete list of all references cited in this rulemaking is available on the Internet at
The primary authors of this package are the staff members of the Mississippi Ecological Services Field Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.11(h) by adding an entry for “Sunfish, spring pygmy” to the List of Endangered and Threatened Wildlife in alphabetical order under FISHES to read as follows:
(h) * * *
2. In § 17.95, amend paragraph (e) by adding an entry for “Spring Pygmy Sunfish
(e)
Spring Pygmy Sunfish (
(1) Critical habitat units are depicted for Limestone County, Alabama, on the maps below.
(2) Within these areas, the primary constituent elements of the physical and biological features essential to the conservation of spring pygmy sunfish are:
(i)
(ii)
(iii)
(iv)
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4)
(5) Index map of critical habitat for the spring pygmy sunfish follows:
(6) Unit 1: Beaverdam Spring/Creek, Limestone County, Alabama.
(i)
(ii) Map of Unit 1 follows:
(7) Unit 2: Pryor Spring/Pryor Branch, Limestone County, Alabama.
(i)
(ii) Map of Unit 2 follows:
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service) propose to list the Coral Pink Sand Dunes tiger beetle,
We will accept comments received or postmarked on or before December 3, 2012. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We will not accept email or faxes. We will post all comments on
The coordinates or plot points or both from which the maps of the specific areas proposed as critical habitat are generated are included in the administrative record for this rulemaking and are available at
Larry Crist, Field Supervisor, U.S. Fish and Wildlife Service, Utah Field Office, Ecological Services Field Office, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119; telephone 801–975–3330; or facsimile 801–975–3331. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
This document consists of: (1) A proposed rule to list the Coral Pink Sand Dunes (CPSD) tiger beetle as threatened; and (2) a proposed critical habitat designation for the CPSD tiger beetle.
• We are proposing to list the CPSD tiger beetle as a threatened species.
• We also are proposing to designate 921 hectares (2,276 acres) of the Coral Pink Sand Dunes (CPSD) Geologic Feature in Kane County as critical habitat.
We propose to list the CPSD tiger beetle as a threatened species because of the following threats:
• Habitat loss and degradation caused by off-road vehicle use.
• Small population effects, such as vulnerability to random chance events.
• Other natural or manmade factors, including climate change and drought.
• Cumulative interaction of individual factors such as off-road vehicle use, climate change, and drought.
We have also determined that existing regulatory mechanisms are not adequately addressing the threats to the species.
Under the Act, any species that is determined to be a threatened or endangered species shall, to the maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. Section 4(b)(2) of the Endangered Species Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.
We propose to designate a 921-hectare (2,276-acre) area as critical habitat for the CPSD tiger beetle. The critical habitat area we propose in this rule constitutes our current best assessment of the specific areas that meet the definition of critical habitat for the CPSD tiger beetle.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat or both.
(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531
(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) Biological, commercial, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
(5) The reasons why we should or should not designate specific areas as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(6) Specific information on our proposed critical habitat designation:
(a) The amount and distribution of CPSD tiger beetle habitat;
(b) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;
(c) Where these features are currently found;
(d) Whether any of these features may require special management considerations or protection;
(e) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why;
(f) What areas not occupied at the time of listing are essential for the conservation of the species and why.
(7) Land use designations and current or planned activities in the areas occupied by the species or proposed to be designated as critical habitat, and possible impacts of these activities on this species and proposed critical habitat.
(8) Information on the projected and reasonably likely impacts of climate change on the CPSD tiger beetle and proposed critical habitat.
(9) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
(10) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
(11) The likelihood of adverse social reactions to the designation of critical habitat and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that 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, as 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 comments and materials concerning this proposed rule by one of the methods listed in the
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
In 1984, we published our Invertebrate Notice of Review classifying the CPSD tiger beetle as a Category 2 species (49 FR 21664, May 22, 1984). Category 2 status included those taxa for which information in the Service's possession indicated that a proposed rule was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed listing rule. In 1994, the Southern Utah Wilderness Alliance petitioned us to list the CPSD tiger beetle as an endangered species and to designate critical habitat. In our 90-day petition finding (59 FR 47293, September 15, 1994), we indicated the petition presented substantial information in support of listing, and later that year we changed the CPSD tiger beetle's status from Category 2 to Category 1 (59 FR 58982, November 15, 1994). Category 1 status
In 1997, the Service, Bureau of Land Management (BLM), Utah Department of Natural Resources (UDNR), and Kane County signed a Candidate Conservation Agreement (CCA) and formed a conservation committee with the dual goals of protecting CPSD tiger beetle habitat and balancing the needs of this rare species with off-road vehicle (ORV) use in the area (Conservation Committee 1997, pp. 4–5). These agencies renewed the CCA in 2009 (Conservation Committee 2009, entire). Coordination under the CCA resulted in the establishment of two Conservation Areas that protect the CPSD tiger beetle from ORV use—Conservation Areas A and B (see
In our 2010 Candidate Notice of Review, we identified the CPSD tiger beetle as a species for which listing as an endangered or threatened species was warranted (with a listing priority number of 2) but precluded by our work on higher priority listing actions (75 FR 69222, November 10, 2010). In the 2011 Candidate Notice of Review, we announced that we were not updating our assessment for this species, because we received funding to develop this proposed listing rule (76 FR 66370, October 26, 2011).
The CPSD tiger beetle is a member of the family Cicindelidae and genus
CPSD tiger beetle adults are 11 to 15 millimeters (0.4 to 0.6 inches (in)) in size and have striking coloration. The large wing cases (known as elytra) are predominantly white except for a thin reddish band that runs down the length of the center. Much of the body and legs are covered in white hairs. The upper thorax (middle region) has a metallic sheen, and the eyes are particularly large (Pearson
Tiger beetle species occur in many different habitats, including riparian habitats, beaches, dunes, woodlands, grasslands, and other open areas (Pearson
The species' current range extends along the CPSD geologic feature. The CPSD is a geologic feature named for the deep pink color of its sand dunes (Ford
The CPSD consist of a series of high, mostly barren, dry dune ridges separated by lower, moister, and more vegetated interdunal swales (low places between sand dune crests) (Romey and Knisley 2002, p. 170). Wind action, primarily blowing from south to north, created and continues to shape the CPSD, utilizing sand from nearby eroding Navajo sandstone (Doelling
The CPSD are in a semiarid climatic zone (Ford
Adult CPSD tiger beetles use most of the dune areas from the swales to the upper dune slopes. Larval CPSD tiger beetles are more restricted to vegetated swale areas (Knisley and Hill 2001, p. 386), where the vegetation supports the larval prey base of flies, ants, and other prey (Conservation Team 2009, p. 14). Larval CPSD tiger beetle habitat is typically dominated by the leguminous plants
Rainfall and associated soil moisture is a critical factor for CPSD tiger beetles (Knisley and Juliano 1988, entire) and is likely the most important natural environmental factor affecting population dynamics of the species. Rainfall and the associated increase in soil moisture have a positive effect on CPSD tiger beetle oviposition (egg depositing) and survivorship (Knisley and Hill 2001, p. 391). The areas in the dune field with the highest level of soil moisture and where soil moisture is closer to the surface contain the highest densities of CPSD tiger beetle larvae (Knisley and Gowan 2011, p. 22), indicating that both proximity to moisture and overall soil moisture are important to the CPSD tiger beetle's life cycle. Experimental supplemental watering has resulted in significantly more adults and larvae, more oviposition events, increased larval survival, and faster larval development compared to unwatered control plots (Knisley and Gowan 2011, pp. 18–22).
The CPSD tiger beetle (
The central population is the largest and is self-sustaining, but at relatively low numbers (see
Low densities of adult CPSD tiger beetles also occur in the dune area between the central and northern populations (Figure 1; Hill and Knisley 1993, p. 9; Knisley 2012, pers. comm.), and suitable swale habitat likely exists in this area. This area has not been extensively surveyed in the past 20 years, and observations of the species in this area are from opportunistic and inconsistent surveys. Because the northern population likely is dependent upon adults dispersing from the central population (Knisley and Gowan 2011, p. 9), the 4.8-km (3-mi) long area of dune between the two populations is likely an important dispersal corridor for the species (see
As previously mentioned (see Previous Federal Actions), an interagency CCA established Conservation Areas A and B to protect the CPSD tiger beetles from ORV use (see
We do not have comprehensive analysis or occupancy modeling that predicts the habitat preferences of the CPSD tiger beetle. However, a preliminary habitat assessment indicated that the beetle exists where there is abundant prey and larvae, large swale areas capable of supporting the appropriate vegetation, swale sediment characteristics appropriate for vegetation and larval burrows, dune migration characteristics that permit vegetation to develop and persist within dune swales, proper sediment supply, and a proper wind regime (Fenster
The same preliminary habitat assessment indicated that CPSD tiger beetles do not exist where there is a lack of prey, small swale areas incapable of supporting the appropriate vegetation, swale sediment characteristics not conducive for vegetation nor suitable for larval burrows, dune migration characteristics that do not permit vegetation to develop and persist within dune swales, low sediment supply, and wind velocities that are too high or too low to maintain proper dune form and vegetation densities (Fenster
Similar to other tiger beetles, the CPSD tiger beetle goes through several developmental stages. These include an egg, three larval stages (known as “instars,” with each instar separated by molting), pupa, and adult (Knisley and Shultz 1997, p. 13). First instar larvae appear in late spring after hatching from eggs that were oviposited in sand the previous late summer or fall (Hill and Knisley 1997, p. 2). The first instar larvae dig small vertical burrows from the sand surface down 6 to 9 cm (2.4 to 3.5 in.) into the sand substrate (Conservation Committee 2009, p. 14). After several weeks of feeding at the surface, the first instar larva plugs its burrow opening, sheds its skin (molts), and becomes a larger second instar larva (Conservation Committee 1997, p. 2). The second instar stage lasts several months (again emerging from its burrow and feeding at the surface for a brief period) before developing into a third instar, with most reaching this stage by mid- to late summer (Conservation Committee 1997, p. 2). Larvae continue as second or third instars into fall, and then hibernate in burrows during the winter (Conservation Committee 1997, p. 3). The third instar stage can take 9 months to over a year to reach full development (Conservation Committee 1997, p. 3). After the third instar is fully developed, the CPSD tiger beetle plugs its burrow opening and transforms into a pupa (Pearson and Vogler 2001, p. 34). During the pupal period (stage between third instar and adult emergence), the beetle undergoes a metamorphosis where many of the adult physical structures develop (
Adults are active on sunny days along the dunes and swale edges. The majority of recently metamorphosed adult CPSD tiger beetles emerge from their burrows in late March to early April, reach peak abundance by May, begin declining in June, and die by August (Knisley and Hill 2001, p. 387). A small proportion of a second adult cohort emerges in early September and remains active into October before digging overwintering burrows (Knisley and Hill 2001, pp. 387–388).
Adult tiger beetles are active predators, attacking and eating prey with their large and powerful mandibles (mouthparts). They can run or fly rapidly over the sand surface to capture or scavenge for prey arthropods. Adults feed primarily on ants, flies, and other small arthropods (Knisley and Hill 1993, p. 13).
CPSD tiger beetle behavior and distribution, like other tiger beetles, is largely determined by their thermoregulation needs. Adult tiger beetles dedicate up to 56 percent of their daily activity towards behavior that controls their internal body temperature (Pearson and Vogler 2001, p. 135). These behaviors include basking (positioning the body to maximize exposure to solar radiation); seeking out wet, cool substrate or shade; and burrowing (Pearson and Vogler 2001, p. 136). Tiger beetles with low body temperatures are sluggish; tiger beetles require a high body temperature for maximal predatory activity (Pearson and Vogler 2001, p. 131). Thus, the numbers of adult CPSD tiger beetles observed on rainy or cool, cloudy days are very low (Knisley and Hill 2001, p. 388). Tiger beetles maintain body temperatures near their lethal limits of 47 to 49 °C (116 to 120 °F) (Pearson and Vogler 2001, p. 131), so heat refuge is important (Shutlz and Hadley 1987, p. 363). During peak spring and fall activity, when it is sunny, adult CPSD tiger beetles are usually active early (9 a.m.–2 p.m.) and again in late afternoon (4 p.m.–7 p.m.) (Knisley and Hill 1993, pp. 13–14). They dig and reside in burrows to avoid unfavorable weather conditions such as hot mid-afternoons or cool or rainy daytime conditions (Knisley and Hill 1993, p. 14). Shade provided by vegetative cover is important for CPSD tiger beetle thermoregulation during warm periods (Knisley 2012, pers. comm.).
Dispersal is the movement of individuals from one habitat area to another. The ability to disperse is often important to tiger beetle species because many species inhabit areas such as sand dunes or riverbanks that are prone to disturbance and physical change (Pearson and Vogler 2001, pp. 130–142) (see
Often, tiger beetle populations depend upon dispersal among separated populations for the survival of individual populations and the species (Knisley
Larval CPSD tiger beetles are ambush predators that wait at their burrow mouth to capture small arthropod prey when it passes nearby. The daily period of activity is highly variable and influenced by temperature, moisture levels, and season (Knisley and Hill 2001, p. 388; Knisley and Gowan 2008, p. 20). Larvae can be active much of the day during cool or cloudy spring and fall days, except during high wind periods (Conservation Committee 2009, p. 14). Maximal activity occurs in early mornings before the soil becomes dry and warm from the sun and again in late afternoon and evening after the soil has cooled (Conservation Committee 2009, p. 14).
Adult females determine the larval microhabitat by their selection of an oviposition site (Knisley and Gowan 2011, p. 6). Recently hatched larvae construct burrows in the sand at the site of oviposition and subsequently pass through three larval stages before pupating and then emerging to the adult form (Conservation Committee 2009, p. 14). Most larvae occur within the swale bottoms and up the lower slopes of the dunes, particularly where the soil or subsoil is moist most of the time (Hill and Knisley 1996, p. 11; Knisley and Gowan 2011, p. 22). The swale vegetation supports the larval prey base of ants, flies, and other prey (Conservation Committee 2009, p. 14). Larvae most often remain in the same burrow throughout their development and only rarely move outside of their burrow to dig a new burrow in a more favorable location (Knisley and Hill 1996, p. 11).
Substantial year-to-year population variation is typical of many desert arthropods that are greatly affected by climatic factors such as rainfall (Knisley and Hill 2001, p. 391). Adult abundance in any year is a result of many interacting factors that affect recruitment of the cohort oviposited 2 or 3 years previous (because of a 2- or 3-year life cycle), and also the survivorship of the developmental stages of that year's cohort (Knisley 2001, p. 10).
The central and northern populations were monitored for the last 20 and 14 years (respectively) to yield a yearly adult CPSD tiger beetle population size estimate (monitoring did not take place outside of these populations) (Figure 2). The adult population size estimate is based solely on data collected from the central population from 1992 to 1997, and after 1997 the adult population size estimate is based on both populations. Population numbers fluctuated greatly over this time, ranging from a low of 558 in 2005 to a high of 2,944 in 2002 (Figure 2). The total adult population size estimate in 2011 was 1,116 (Knisley and Gowan 2011, p. 7). Population monitoring results indicate a low, yet stable to increasing population size since 2003 that contrasts with highly variable population estimates in previous periods (Knisley and Gowan 2011, pp. 7–8; Figure 2); however, the overall trend since 1992 suggests that the population is in decline.
Population viability analysis (PVA) is a way to predict the population dynamics of a species under various management alternatives (Brook
Both PVAs only consider adult beetles from the Conservation Area A population because Conservation Area B population numbers are extremely low and the population is not considered self-sustaining (Knisley 2001, p. 9). The PVA authors caution that the CPSD tiger beetle PVA should only be used in a comparative way, to evaluate the effectiveness of different management options (Knisley 2012, pers. comm.). They add that the PVA predictions may not be quantitatively reliable for predicting the absolute extinction probability of the species (Knisley 2012, pers. comm.). For these reasons, we do not base our status determination for this rulemaking on the PVA and instead use the PVA to evaluate existing threats and potential conservation measures.
The PVA models do not directly account for current or future threats and are entirely based on four demographic variables:
1. Starting population size;
2. Population growth rate (increase in population size year-to-year);
3. Stochasticity (variation in yearly population growth rate); and
4. Carrying capacity (number of beetles that the habitat can sustain).
The results of the two PVAs were generally similar in that growth rate and stochasticity tend to control extinction probability. The most recent PVA indicated a 32 percent chance of extinction and an 87 percent chance that the species would decline to 50 individuals within the next 100 years (Knisley and Gowan 2009, p. 17). The first PVA was based on only 7 years of data and predicted extremely variable extinction probabilities (2 percent to 96 percent in 100 years); however, the data were based on very rough estimates of population growth rates (Knisley and Gowan 1999, pp. 5–6). Increases or decreases in carrying capacity would have only a modest effect on the risk of extinction, whereas decreasing stochasticity or increasing population growth rate would greatly reduce the chance of extinction (Knisley and Gowan 2009, p. 18). The authors of the PVA study recommended two management actions to reduce the extinction probability. Their first recommendation was to expand both Conservation Areas to include several important swales that are believed to have suitable habitat, but are being impacted by heavy ORV use, thus preventing successful colonization and recruitment of CPSD tiger beetles (Knisley and Gowan 2009, p. 23). Expanding the size of both Conservation Areas would likely increase the population growth rate because the protections would improve overall habitat quality and lead to greater reproductive success (
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on any of the following five factors: (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; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Each of these factors is discussed below.
Loss of habitat is the leading cause of species extinction (Pimm and Raven 2000, p. 843). Insects are highly vulnerable to extinction through habitat loss (McKinney 1997, pp. 501–507). ORV use significantly impacts the CPSD tiger beetle's habitat, range, and the beetle itself by directly killing beetles, damaging vegetation that supports prey items, directly killing prey items, and reducing soil moisture.
Nationwide, ORV use has drastically reduced or extirpated several tiger beetle populations. For example, ORV use and pedestrian traffic extirpated the Northeastern Beach tiger beetle,
As previously described (see Previous Federal Actions,
Because we do not have survey information to determine the extent of occupied swale habitat in the northern population (see
Available information shows the effects of ORV use on current population numbers. For example, swales adjacent to but outside of Conservation Area A are similar in all apparent environmental conditions to swales within Conservation Area A with the exception of ORV impacts. However, CPSD tiger beetle abundance in ORV-impacted occupied swales is consistently lower than adjacent protected occupied swales, potentially because of ORV impacts (Figure 3).
For example, one swale with ORV use had population counts of 60 or more CPSD tiger beetles in most years (Knisley and Gowan 2011, p. 11). Utah State Park staff, at the recommendation of the conservation committee, protected this swale from ORV use in 2010 (Knisley and Gowan 2011, p. 11). The year following removal of ORV use, the tiger beetle density on this swale more than doubled to 150 beetles, which also is the highest number recorded for the swale (Knisley and Gowan 2011, p. 11). This action provides an example of how the conservation committee has used adaptive management to benefit the CPSD tiger beetle and demonstrates a rapid population response to removed ORV disturbance.
ORVs run over and thereby kill and injure CPSD tiger beetles (Knisley and Hill 1993, p. 14; Knisley and Gowan 2008, p. 23). The likelihood of being injured or killed increases if adult CPSD tiger beetle are run over on wet or compact substrates (
We do not have specific data regarding the level of impact ORVs have on CPSD tiger beetles in the unprotected area between Conservation Areas A and B. It is likely that many of the beetles run over by ORVs in the dispersal corridor will be injured or killed. Thus, the ability of adults to disperse between the central population and the northern population is likely negatively impacted by ORVs. The result of these ORV impacts is that the habitat between the central and northern populations does not provide a sufficient dispersal corridor for beetles to the northern population. Current levels of dispersal are likely not adequate for the northern population to be self-sustaining (see
Food limitation has a significant impact on tiger beetle growth, survival, and fecundity, especially for desert species. Adult CPSD tiger beetles are, in some years, extremely food limited and exhibit reduced fecundity (Knisley and Gowan 2008, p. 19). Food limitation is at least partly caused by ORV use. ORVs reduce CPSD tiger beetle prey density and prey species diversity in CPSD (Knisley and Gowan 2006, p. 19). Ants, a primary prey item, occur in much lower densities in areas frequented by ORVs than in areas with no ORV traffic (Knisley and Gowan 2008, p. 23). In addition, low ORV use areas in CPSD have a higher diversity of prey species and higher numbers of prey items than high ORV use areas (Knisley and Hill 2001, p. 389).
Prey availability significantly affects the number of larvae produced by adult tiger beetles (Pearson and Knisley 1995, p. 165) and the survival of larval tiger beetles (Knisley and Juliano 1988, p. 1990). Low prey densities can result in prolonged development and decreased survivorship in larval tiger beetles and reduced size in adults, which lowers fecundity in females (Pearson and Knisley 1985, p. 165; Knisley and Juliano 1988, p. 1990). Also, low prey densities require larval and adult tiger beetles to spend more time searching for food. For larval tiger beetles, this means more time near burrow entrances searching for prey, resulting in increased susceptibility to parasitism and predators (Pearson and Knisley 1985, p. 166). Similarly, adults that spend more time out of their burrows searching for food have an increased susceptibility to predation.
ORV use degrades larval habitat by reducing soil moisture. ORV use can reduce soil moisture by churning up soils and exposing the moisture that is locked between soil particles (beneath the surface) to greater evaporative pressure (Shultz 1988, p. 28; Knisley and Gowan 2008, p. 10). It also reduces soil moisture by increasing soil compaction (Adams
As we discussed earlier (see
Overall, ORV use reduces available habitat and the CPSD tiger beetle population size. This results in a population that is at risk of endangerment in the face of minor
ORV use is a threat to the CPSD tiger beetle through direct mortality and injury, and by reducing prey base and soil moisture. ORV use substantially reduces habitat qualities essential to the CPSD tiger beetle's life cycle (
Tiger beetles are one of the most sought-after groups of insects by amateur collectors because of the unique metallic colors and patterns present in the various species and subspecies, as well as their fascinating habits (Pearson
Collection of adult CPSD tiger beetles, before they mate and lay their eggs, may result in reduced population size of subsequent generations. The magnitude of recreational collection cannot be accurately determined for the CPSD tiger beetle, but it is likely that some number of adults were taken in the past. However, CPSD State Park and BLM personnel now enforce restrictions on recreational collecting of CPSD tiger beetles, and consequently, collection levels are low (Conservation Committee 2009, p. 17). Although scientific collection is not restricted by any formal permitting process, only one researcher has collected CPSD tiger beetles in approximately the last 14 years. Over this time period, approximately 70 adults were collected (Knisley 2012, pers. comm.). The adults were collected in late May after they had mated and oviposited eggs (Knisley 2012, pers. comm.).
CPSD tiger beetles are not overutilized for commercial, recreational, scientific, or educational purposes. A limited number of CPSD tiger beetles are likely collected from wild populations for recreational purposes; however, CPSD State Park and BLM personnel enforce restrictions on recreational collecting. Collection of CPSD tiger beetles for scientific investigation purposes occurs on occasion, but the level of collection is very small. The best scientific and commercial information available indicates that overutilization for commercial, recreational, scientific, or educational purposes is not a threat to the CPSD tiger beetle now nor will be in the future.
We know of no diseases that are a threat to the CPSD tiger beetle. Natural mortality through predation and parasitism accounts for some individual loss of adult and larval CPSD tiger beetles (Knisley and Hill 1994, p. 16). Known predators of adult tiger beetles include birds, shrews (Soricidae), raccoons (
Known tiger beetle parasites include ant-like wasps of the family Typhiidae, especially the genera Mathoca, Karlissa, and Pterombrus, and flies of the genus Anthrax (Knisley and Shultz 1997, pp. 53–57). Parasites predominantly target larval tiger beetles (Pearson and Vogler 2001, pp. 170–171). There are two known natural parasites of larval CPSD tiger beetles. Bee flies (Bombyliidae) are known to flick their eggs into beetle burrows (Knisley and Hill 1995, p. 14). When these eggs hatch, the larval parasite feeds on beetle bodily fluids, often resulting in death of the tiger beetle larvae. Wasps of the genus Methoca also can parasitize CPSD tiger beetle larvae (Knisley and Hill 1995, p. 14). These wasps deposit their larvae in the burrows of larval tiger beetles. The wasp larvae then consume the tiger beetle larvae. Despite documented parasitism to larval CPSD tiger beetle, effects to the species are low and not likely to limit the CPSD tiger beetle population (Conservation Committee 1997, p. 7).
We have found no information that indicates that disease is a threat to the CPSD tiger beetle. There is some information documenting mortality of CPSD tiger beetles by natural predators and parasites; however, not to a level that significantly affects the species. Thus, we have no information that disease, parasites, or predation is a threat to the species now or is likely to become so in the future.
The Act requires us to examine the inadequacy of existing regulatory mechanisms with respect to extant threats that place CPSD tiger beetle in danger of becoming either an endangered or threatened species. Regulatory mechanisms affecting the species fall into three general categories: (1) Land management; (2) State mechanisms; and (3) Federal mechanisms.
The CPSD geologic feature is approximately 1,416 ha (3,500 ac). The southern 809 ha (2,000 ac) of the CPSD is within the CPSD State Park and is categorized as public land with a recreational emphasis (Conservation
As stated previously (see
Protection for the tiger beetle in Conservation Area A is enforced according to the CPSD State Park's special closure (Conservation Committee 1997, p. 13) and Utah's Administrative Code (R 651–633). Conservation Area A protects some of the central population of CPSD tiger beetle. Of the 809-ha (2,000-ac) State Park, 84 ha (207 ac) (10 percent) are closed to ORV use to provide protection for CPSD tiger beetle habitat. Conservation Area A prohibits the use of ORVs in 48 percent of the species' known occupied swale habitat in the central population, thereby protecting 73 to 88 percent of CPSD tiger beetle adults and the vast majority of larvae (Figure 3, adapted from Knisley and Gowan 2009, p. 8).
Conservation Area B provides protection to all of the northern population's habitat as we have defined its boundary (see Figure 1), realizing that we do not have good survey information in this area. In this area, 150 ha (370 ac) is closed to ORV use to protect a small population of CPSD tiger beetle. Approximately 445 ha (1,100 ac) is available for ORV use outside of the Conservation Area B on BLM lands, but with the stipulation that ORVs stay on open dunes and maintain a 3-m (10-ft) buffer around vegetation. Enforcement is minimal and primarily relies on voluntary compliance (Conservation Committee 1997, p. 13). We have no record of enforcement effort or success of the closures at either Conservation Area A or B.
Despite the designation and management of the Conservation Areas, at least 52 percent of known occupied swale habitat in the central population adjacent to Conservation Area A is open to ORV use, and an unknown amount of habitat could be affected in the northern population (Knisley and Gowan 2009, p. 8). As previously described, unprotected but occupied swales have lower CPSD tiger beetle densities than nearby protected swales that are occupied (see Figure 3).
In addition to the lack of any protection for about 52 percent of occupied swale habitat that is outside of Conservation Area A, there is no protection from ORV use for the CPSD tiger beetle in the dispersal corridor between Conservation Areas A and B. As explained above (see
We acknowledge the very important protections of Conservation Areas A and B from ORV use. However, outside of the two Conservation Areas, at least 52 percent of occupied swale habitat is currently unprotected and the degradation of habitat (both occupied and potential) by ORV use reduces the ability of the CPSD tiger beetle population to expand in areas outside of protected Conservation Areas and reduces the population's carrying capacity. The dispersal habitat between Conservation Areas A and B is managed by the Utah Division of State Parks and Recreation and the BLM, and used largely for OHV recreation; no regulatory mechanisms protect the CPSD tiger beetle in this area.
At current levels of regulatory protection, CPSD tiger beetle habitat is small and isolated in the two Conservation Areas, and the population size is extremely small, making the species more susceptible to other threats such as climate change and drought, demographic and environmental stochasticity, and catastrophic events (see
In addition, the population at Conservation Area B should be managed such that it becomes self-sustaining (see
Utah's Administrative Code (R 651–633) prohibits motorized vehicle use in designated nonmotorized sand dune areas of CPSD State Park. Conservation Area A is a designated nonmotorized sand dune area, and thus the State Code protects tiger beetle habitat in this area. CPSD State Park's dual purpose mission statement of providing recreational experiences while preserving natural resources (Franklin
As mentioned previously, Conservation Area B and the northern population are on BLM-administered land. The Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701
The BLM manages the CPSD tiger beetle as a “sensitive species,” and as stated above, BLM manages a 150-ha (370-ac) Conservation Area for the species. The management guidance afforded sensitive species under BLM Manual 6840—Special Status Species Management (BLM 2008, entire) states that “Bureau sensitive species will be managed consistent with species and habitat management objectives in land use and implementation plans to promote their conservation and to minimize the likelihood and need for listing under the ESA” (BLM 2008, p. 05V). The BLM Manual 6840 further requires that Resource Management Plans (RMPs) should address sensitive species, and that implementation “should consider all site-specific methods and procedures needed to bring species and their habitats to the condition under which management under the Bureau sensitive species policies would no longer be necessary” (BLM 2008, p. 2A1). As a designated sensitive species under BLM Manual 6840, CPSD tiger beetle conservation must be addressed in the development and implementation of RMPs on BLM lands.
The RMPs are the basis for all actions and authorizations involving BLM-administered lands and resources. They establish allowable resource uses, resource condition goals and objectives to be attained, program constraints and general management practices needed to attain the goals and objectives, general implementation sequences, and intervals and standards for monitoring and evaluating the plan to determine its effectiveness and the need for amendment or revision (43 CFR 1601
The RMPs provide a framework and programmatic guidance for activity plans, which are site-specific plans written to implement decisions made in an RMP. Activity plan decisions normally require additional planning and National Environmental Policy Act (NEPA) analysis (see below). If an RMP contains specific direction regarding sensitive species habitat, conservation, or management, it represents an enforceable regulatory mechanism to ensure that the species and its habitats are considered during permitting and other decision-making regarding BLM lands.
The 2008 Kanab RMP establishes guidance and objectives for the management of the northern portion of CPSD (BLM 2008, entire). In the RMP, the BLM commits to “implement conservation actions identified in the Conservation Agreement and Strategy for the Coral Pink Sand Dunes tiger beetle, including maintaining the established 370-acre conservation area” (BLM 2008, p. 32). In addition to maintaining Conservation Area B, the BLM has funded and continues to fund CPSD tiger beetle monitoring and research activities. While these BLM-implemented conservation actions (as outlined in the RMP) have benefitted the CPSD tiger beetle, remaining threats (such as climate change and drought, demographic and environmental stochasticity, and catastrophic events (see
BLM manual 6840 establishes management policy and direction for BLM's involvement in the CCA and its membership on the Conservation Committee (Conservation Committee 2009, p. 7). Conservation Area B was established on BLM lands as part of the CCA and was a result of adult and larval CPSD tiger beetle
The BLM protects the entirety of the northern CPSD tiger beetle population in Conservation Area B; however, this population is not self-sustaining (see
On December 15, 2009, the Environmental Protection Agency (EPA) published in the
A Federal statute that may provide protection to CPSD tiger beetle and its habitat is the NEPA. As explained previously, Federal land management agencies, such as the BLM, have legislation that specifies how their lands are managed for sensitive species. The NEPA provides authority for the Service to assume a cooperating agency role for Federal projects undergoing evaluation for significant impacts to the human environment. This includes participating in updates to RMPs. As a cooperating agency, we have the opportunity to provide recommendations to the action agency
State and federally managed lands in Conservation Areas A and B provide some protection to the CPSD tiger beetle. The northern portion of CPSD is Federal land managed by the BLM and the southern portion of the CPSD is within the CPSD State Park. These land management agencies provide protection to the CPSD tiger beetle through the establishment and regulation of the ORV restricted Conservation Areas A and B. Utah's Administrative Code (R 651–633) prohibits motorized vehicle use in designated nonmotorized sand dune areas of CPSD State Park (Conservation Area A) and the BLM protects Conservation Area B. However, as discussed under
The Clean Air Act gives the EPA authority to limit GHGs linked to climate change; however, our analysis concludes that current regulation of these gases is not adequate to reduce the current rate of global climate change.
As evidenced by the discussion above, the species is not adequately protected by existing regulatory mechanisms.
Natural and manmade factors affecting the CPSD tiger beetle include: (1) Sand dune movement; (2) Climate change and drought; (3) Small population effects; and (4) Cumulative effects of all threats that may impact the species.
Movement of the swales due to sand dune movement naturally occurs in this system as wind action continues to shape the dunes. Major dune ridgelines moved close to 22 m (72 ft) (Knisley and Gowan 2005, p. 4) between 2001 and 2002, and most ridgelines moved over 45 m (150 ft) between 2002 and 2010 (Knisley and Gowan 2011, p. 25). Dune movement can result in a change in suitable habitat conditions (Knisley and Gowan 2008, pp. 21–22). For example, dune movement simultaneously buries and uncovers trees in CPSD (Gregory 1950, p. 188). Similarly, we know that dune movement is burying some previously occupied swale habitat (Knisley and Gowan 2008, pp. 21–22). It is likely that dune movement is uncovering potential habitat as well; however, comprehensive surveys to determine this have not been conducted (Knisley 2012, pers. comm.). Wind action created and continues to shape the current CPSD (Ford et al. 2010, p. 387), and we have no evidence to suggest that the rate of dune movement is increasing. Because CPSD tiger beetle presumably evolved in this environment, it is likely that the species is adapted to the continual movement of dunes. We have no evidence demonstrating that dune movement is a threat to the species now or is likely to become so in the future; however, additional study of dune movement is recommended.
Our analyses under the Act include consideration of environmental changes resulting from ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007a, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (
Scientific measurements spanning several decades demonstrate that changes in climate are occurring, and that the rate of change has been faster since the 1950s. Based on extensive analyses of global average surface air temperature, the most widely used measure of change, the IPCC concluded that warming of the global climate system over the past several decades is “unequivocal” (IPCC 2007a, p. 2). In other words, the IPCC concluded that there is no question that the world's climate system is warming.
Examples of other changes include substantial increases in precipitation in some regions of the world and decreases in other regions (for these and additional examples, see IPCC 2007a, p. 30; Solomon
Results of scientific analyses presented by the IPCC show that most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate and is “very likely” (defined by the IPCC as 90 percent or higher probability) due to the observed increase in GHG concentrations in the atmosphere as a result of human activities, particularly carbon dioxide emissions from fossil fuel use (IPCC 2007a, pp. 5–6 and figures SPM.3 and SPM.4; Solomon
Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of GHG emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions (
In addition to basing their projections on scientific analyses, the IPCC reports projections using a framework for treatment of uncertainties (
Various changes in climate may have direct or indirect effects on species. These may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables such as habitat fragmentation (for examples, see Franco
Many analyses involve elements that are common to climate change vulnerability assessments. In relation to climate change, vulnerability refers to the degree to which a species (or system) is susceptible to, and unable to cope with, adverse effects of climate change, including climate variability and extremes. Vulnerability is a function of the type, magnitude, and rate of climate change and variation to which a species is exposed, its sensitivity, and its adaptive capacity (IPCC 2007a, p. 89; see also Glick
As is the case with all stressors that we assess, even if we conclude that a species is currently affected or is likely to be affected in a negative way by one or more climate-related impacts, it does not necessarily follow that the species meets the definition of an “endangered species” or a “threatened species” under the Act. If a species is listed as an endangered or threatened species, knowledge regarding its vulnerability to, and known or anticipated impacts from, climate-associated changes in environmental conditions can be used to help devise appropriate strategies for its recovery.
The IPCC predicts that the resiliency of many ecosystems is likely to be exceeded this century by an unprecedented combination of climate change, associated disturbances (
Regional projections indicate the Southwest, including southern Utah, may experience the greatest temperature increase of any area in the lower 48 States (IPCC 2007, p. 30). Drought probability is predicted to increase in the Southwest (Karl
Utah is projected to warm more than the average for the entire globe (Governor's Blue Ribbon Advisory Council on Climate Change (GBRAC) 2008, p. 14). The expected consequences of this warming are fewer frost days, longer growing seasons, and more heat waves (GBRAC 2008, p. 14). For Utah, the projected increase in annual mean temperature by year 2100 is about 4.5 °C (8 °F) (GBRAC 2008, p. 14). Because of increased temperature, Utah soils are expected to dry more rapidly (GBRAC 2008, p. 20); this is likely to result in reduced soil moisture levels in CPSD tiger beetle habitat.
Utah is projected to have more frequent heavy precipitation events, separated by longer dry spells as a result of climate change (GBRAC 2008, p. 15). Drought is a localized dry spell. Drought conditions are a threat to the CPSD tiger beetle, as rainfall indirectly controls population size and the changing dynamics of the species (Knisley and Gowan 2009, p. 8).
Previous drought-like conditions have resulted in drastic CPSD tiger beetle population declines. For example, low rainfall amounts from 2001 to 2003 resulted in reduced adult numbers in 2004 and 2005 (Knisley and Gowan 2008, p. 8). Conversely, high adult numbers in 1996 and 2002 followed several years of higher than average rainfall (Knisley and Gowan 2008, p. 8). These observed population responses to rainfall are most likely caused by reductions and increases in prey and soil moisture. Prey is more abundant during wet years, and this reduces the effects of starvation, decreases development time, and increases fecundity (Knisley and Hill 2001, p. 391). Soil moisture seems to have the greatest effect on oviposition and larval survival. As stated in Factor A, water is limiting to tiger beetles in CPSD, and this is evidenced by the fact that in one experiment water supplementation increased larval CPSD tiger beetle survival by 10 percent (Knisley and Gowan 2006, p. 7).
In summary, the limited geographic range of CPSD tiger beetle to high-elevation sand dunes and swales within the CPSD geologic feature limits the
Under this factor we consider the small population size of CPSD tiger beetle has one of the smallest geographical ranges of any known insect (Romey and Knisley 2002, p. 170). It is restricted to the CPSD and occupies only 202 ha (500 ac) (Morgan
A species may be considered rare because of a limited geographical range, specialized habitat, or small population size (Primack 1998, p. 176). In the absence of information identifying threats to a species and linking those threats to the rarity of a species, we do not consider rarity alone to be a threat. A species that has always been rare, yet continues to survive, could be well equipped to continue to exist into the future. Many naturally rare species have persisted for long periods within small geographic areas, and many naturally rare species exhibit traits that allow them to persist despite their small population sizes. Consequently, the fact that a species is rare does not necessarily indicate that it may be in danger of extinction.
CPSD tiger beetle has a very limited occupied range and a very small population size (558 adults in 2005 to a high of 2,944 adults in 2002). It has several characteristics typical of species vulnerable to extinction including: (1) A very narrow geographic range; (2) only one known self-sustaining population; and (3) a small population size.
Extinction may be caused by demographic stochasticity due to chance realizations of individual probabilities of death and reproduction, particularly in small populations (Shaffer 1981, p. 131; Lande 1993, pp. 911–912). Environmental stochasticity can result in extinction through a series of small or moderate perturbations that affect birth and death rates within a population (Shaffer 1981, p. 131; Lande 1993, p. 912). Lastly, extinction can be caused by random catastrophes (Shaffer 1981, p. 131; Lande 1993, p. 912). CPSD tiger beetle is vulnerable to extinction due to: (1) Demographic stochasticity due to its small population size; (2) environmental stochasticity due to continued small perturbations caused by ongoing modification and curtailment of its habitat and range from ORV use; and (3) the chance of random catastrophe such as an extended drought.
Small populations also can be vulnerable due to a lack of genetic diversity (Shaffer 1981, p. 132). We have no information regarding genetic diversity of CPSD tiger beetle. A minimum viable population (MVP) will vary depending on the species. An MVP of 1,000 may be adequate for species of normal genetic variability, and an MVP of 10,000 should permit long-term persistence and continued genetic diversity (Thomas 1990, p. 325). These estimates should be increased by at least 1 order of magnitude (to 10,000 and 100,000) for insects, because they usually have greater population variability (Thomas 1990, p. 326). Based upon available information, CPSD tiger beetle likely does not meet these minimum population criteria for maintaining genetic diversity because the estimated population size ranges from 558 to 2,944 individuals.
We do not believe that small population size on its own would be a threat to CPSD tiger beetle. However, the species' small population size makes it more vulnerable to extinction due to demographic stochasticity, environmental stochasticity, and random catastrophe when combined with the specific threats of ORV use, drought and climate change. Thus, we consider small population size a threat to the species, now and is likely to become so in the future, as is discussed in more detail below.
Some of the threats discussed in Factors A through E can work in concert with one another to cumulatively create conditions that will impact CPSD tiger beetle beyond the scope of each individual threat. ORV use and the drought-related effects of climate change can reduce soil moisture. Rainfall and associated soil moisture is a critical factor for desert tiger beetles (Knisley and Juliano 1988, entire) and is likely the most important natural factor affecting population dynamics of CPSD tiger beetle. Currently, water availability limits the tiger beetle population in the CPSD (Knisley and Gowan 2006, p. 7).
As explained in previous sections (see
Wind action created and continues to shape the CPSD (Ford
Utah is predicted to have increased temperatures and more frequent heavy precipitation events, separated by longer dry spells, as a result of climate change (GBRAC 2008, p. 15). Utah soils are expected to dry more rapidly as a result of increased temperatures (GBRAC 2008, p. 20). Drought duration and intensity in CPSD will likely increase in the future, magnifying the soil moisture reductions expected from temperature increases alone. Precipitation and soil moisture levels currently limit the CPSD tiger beetle population in CPSD (Knisley and Gowan 2006, p. 7), and reductions in soil moisture associated with climate change and drought will further reduce the CPSD tiger beetle population size. Based on the analysis in Factor E, we find environmental changes resulting
The restricted range of the species does not constitute a threat in itself. However, the species' small population size makes the species more vulnerable to extinction due to demographic stochasticity, environmental stochasticity, and random ecatastrophe, when combined with the specific threats of ORV use, drought, and climate change. Therefore, we consider its small population size to be a threat to the species when combined with other stressors and threats.
Threats can work in concert with one another to cumulatively create conditions that will impact CPSD tiger beetle beyond the scope of each individual threat. Climate change, drought, and ORV use all act upon CPSD tiger beetle through a similar mechanism: The drying of soils. As we discussed, soil moisture is a critical factor for desert tiger beetles (Knisley and Juliano 1988, entire) and water and soil moisture are both currently limiting CPSD tiger beetle (Knisley and Gowan 2006, p. 7). Reduced precipitation, increased evaporation, soil compaction, and soil exposure act cumulatively on CPSD tiger beetle and its habitat. For these reasons, we find ORV use, environmental changes resulting from climate change, and drought are threats to the species both independently (presently in the case of ORV use) and cumulatively. The best scientific and commercial information available indicates that other natural or manmade factors affecting its continued existence are a threat the CPSD tiger beetle, now and are likely to continue to be so in the future.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to CPSD tiger beetle. The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. CPSD tiger beetle is highly restricted in its range, threats occur throughout its range, and are not restricted to any particular significant portion of that range. Accordingly, our assessment and determination applies to the species throughout its entire range.
CPSD tiger beetle has one of the smallest geographical ranges of any known insect (Romey and Knisley 2002, p. 170). It is restricted to the CPSD geologic feature and occupies only 202 ha (500 ac) (Morgan
ORV use and small population effects, in combination with other stressors, are threats to the species (see
Despite ongoing threats, the adult CPSD tiger beetle population size has shown a stable or slightly increasing trend since 2003, but overall trend since 1992 suggests that the population is in decline.
Recreational ORV use has reduced the amount of habitat available to CPSD tiger beetle and in this way suppresses the species population size. However, as the past 9 years of population data suggest, it is unlikely that the threat of ORV use will cause imminent extinction for the species. It is more likely that, absent the protections of the Act, ORV use will continue to suppress the CPSD tiger beetle population size, and future drought conditions associated with climate change would act cumulatively with ORV use upon an extremely small population, causing endangerment. Because endangerment in this case is “in the foreseeable future” and the species is currently (over about the last 5 years) experiencing a stable or increasing population trend, we do not consider CPSD tiger beetle to be presently on the brink of extinction, but likely to become so in the future (Capone 2012, entire).
Therefore, on the basis of the best available scientific and commercial information, we propose listing CPSD tiger beetle as a threatened species in accordance with sections 3(6) and 4(a)(1) of the Act. Because threats are distributed across the limited range of the species, we have determined that the CPSD tiger beetle is a threatened species throughout all of its range.
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed, preparation of a draft and final recovery plan, and revisions to the plan as significant new information becomes available. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The recovery plan identifies site-specific management actions that will achieve recovery of the species, measurable criteria that determine when a species may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (comprising species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Utah would be eligible for Federal funds to implement management actions that promote the protection and recovery of CPSD tiger beetle. Information on our grant programs that are available to aid species recovery can be found at:
Although CPSD tiger beetle is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape altering activities on Federal lands administered by the BLM; construction and management of gas pipeline and power line rights-of-way by the Federal Energy Regulatory Commission; and construction and maintenance of roads or highways by the Federal Highway Administration.
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the U.S. Fish and Wildlife Service, Utah Field Office (see
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards under the Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, Habitat Conservation Plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific physical or biological features required for CPSD tiger beetle from studies of this species' habitat, ecology, and life history as described below. We have determined that CPSD tiger beetle requires the following physical or biological features:
Dune System—CPSD consists of a series of high, mostly barren, dry dune ridges separated by lower, moister, and more vegetated interdunal swales (Romey and Knisley 2002, p. 170). The CPSD tiger beetle requires interconnected dune and swale habitats for thermoregulation, foraging, reproduction, and larval development. Adult CPSD tiger beetles use most of the dune area from the swales (low place between sand dunes) to the upper dune slope for foraging and thermoregulation. Larval CPSD tiger beetles are more restricted to moist, vegetated swale areas (Knisley and Hill 2001, p. 386). Therefore, based on the information above we identify sand dunes and swales within the CPSD geologic feature as an essential physical or biological feature for this species.
Climate—The CPSD tiger beetle occurs only at the CPSD geologic feature in southern Utah. CPSD elevation ranges from a low of 1,710 m (5,620 ft) to a high of 2,090 m (6,850 ft) (Ford
Food—CPSD tiger beetle are predatory insects. Adults are active, visual hunters that use their large mandibles to capture and eat small arthropods. Adults primarily forage on dune faces and
In summary, CPSD tiger beetle is food limited in some years. Both adults and larvae use their large mandibles to capture arthropods. Their primary prey are ants, flies, and other small arthropods. Therefore, based on the information above, we identify an abundant and diverse arthropod prey base to be an essential physical or biological feature for this species.
Adult Burrows—Adult CPSD tiger beetle use cover or shelter to help maintain internal body temperatures (thermoregulation). During peak spring and fall activity, when it is sunny, adults are usually active early (9 a.m.–2 p.m.) and again in late afternoon (4 p.m.–7 p.m.) (Knisley and Hill 1993, pp.13–14). They dig and reside in the sand in burrows to avoid unfavorable weather conditions such as hot mid-afternoons or daytime conditions that are cool or rainy (Knisley and Hill 1993, p. 14). Shade provided by vegetative cover also is important for thermoregulation during warmer periods (Knisley 2012, pers. comm.). Therefore, based on the information above, we identify sand dunes and vegetation as an essential physical or biological feature for this species.
Larval Beds—Adult females determine the larval microhabitat by their selection of an oviposition site (Knisley and Gowan 2011, p. 6). Newly hatched larvae construct burrows in sand soils at the site of oviposition and subsequently pass through three larval stages (each stage is called an “instar”) before pupating and then emerging to the adult form. Larvae remain in the same burrow throughout their development and only rarely move outside of their burrow to dig a new burrow in a more favorable location (Knisley and Hill 1996, p. 11).
Most larvae occur within the swale bottoms and up the lower slopes of the dunes, particularly where the soil or subsoil is moist most of the time (Knisley and Hill 1996, p. 11; Knisley and Gowan 2011, p. 22). Larvae primarily inhabit areas with 3 to 25 percent soil moisture (Romney and Knisley 2002, p. 172). Soil moisture is critical to larval CPSD tiger beetle survival. Drying or desiccation can kill tiger beetles (Knisley and Juliano 1998, p. 1990), and almost no larvae survive below 3 percent soil moisture (Romen and Knisley 2002, p. 172). Water tends to be so limiting in CPSD that water supplementation increases larval CPSD tiger beetle survival by 10 percent (Knisley and Gowan 2006, p. 7). We are not aware of an upper limit, in terms of soil moisture, where increases in soil moisture are detrimental to larval CPSD tiger beetle survival.
Larvae are most common in swales with a relatively high total percent vegetation cover (means of 23 to 57 percent) (Knisley and Hill 2001, p. 389). The swale vegetation supports the prey base of ants, flies, and other prey upon which larvae depend. Low or no vegetation results in a reduced prey base. Vegetative cover above 57 percent tends to stabilize sediments too much and may prevent adults from ovipositing (Knisley 2012, pers. comm.).
In summary, adult ovipositing determines the habitats used by larval CPSD tiger beetle. Soil moisture and prey availability are essential for larval growth and survival. Vegetation supports the prey base; however, too much vegetation cover can make habitat unsuitable for ovipositing. Therefore, based on the information above, we identify swale habitat, soil moisture, an abundant and diverse prey base, and 23 to 57 percent vegetation cover as the essential physical or biological features for this species.
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of CPSD tiger beetle in areas occupied at the time of listing, focusing on the features' PCEs. We consider PCEs to be the elements of physical or biological features that are all needed to provide for a species' life-history processes and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the PCEs specific to CPSD tiger beetle are: Dynamic sand dunes and swales within the Coral Pink Sand Dunes geologic feature that have:
○ Elevations from 1,710 to 2,090 m;
○ Appropriate levels of moisture and compaction to allow for burrowing (greater than 3 percent); and
○ Vegetative cover of 23–57% that allows for ovipositing, adult thermoregulation, and abundant prey.
With this proposed designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the species, through the identification of PCEs sufficient to support the life-history processes of the species. All units and subunits proposed for designation as critical habitat are currently occupied by CPSD tiger beetle and contain the PCEs sufficient to support the life-history needs of the species.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection. A detailed discussion of threats to CPSD tiger beetle and its habitat can be found in the Summary of Factors Affecting the Species section.
The primary threats impacting the physical and biological features essential to the conservation of CPSD tiger beetle that may require special management considerations or protection within the proposed critical habitat include, but are not limited to, ORV use, drought, and climate change, and the cumulative effects of all of these threats.
The features essential to the conservation of this species (sand dunes, moist and vegetated swales, and prey species) may require special management considerations or protection to reduce threats. Extremely low numbers and a highly restricted geographic range make CPSD tiger beetle particularly susceptible to extinction in the foreseeable future. Special management considerations or protections are required within critical habitat areas to address threats. Management activities that could ameliorate threats include (but are not limited to): The establishment of a second self-sustaining population; regulations and/or agreements that balance conservation with ORV use in areas that would affect the species; the designation of additional protected areas with specific provisions and protections for the species; and the elimination or avoidance of activities that alter the soil moisture, vegetation community, or prey base in swale
As required by section 4(b)(1)(A) of the Act, we use the best scientific and commercial data available to designate critical habitat. We review available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we consider whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing—are necessary to ensure the conservation of the species. We are proposing to designate critical habitat concurrent with listing in areas within the geographical area occupied by the species.
We are proposing to designate all currently occupied habitat as critical habitat—any degradation of existing occupied habitat would further increase CPSD tiger beetle's susceptibility to extinction. CPSD tiger beetle primarily occurs in two populations that are separated by 4.8 km (3 mi) of dunes. We include the 4.8-km (3-mi) dune segment that separates the two populations because dispersal is likely important for the long term-survival of the species (see
We delineated the critical habitat unit boundaries for CPSD tiger beetle using the following steps:
(1) In determining what areas were occupied by CPSD tiger beetle, we used data collected by Dr. Barry Knisley (Hill and Knisley 1993 pp. 7–10; Knisley and Hill 1994 pp. 5–10; Knisley and Gowan 2005, pp. 7–8; Knisley and Gowan 2011 p. 29) to map the central and northern populations of CPSD tiger beetle using ArcMap 9.3.1.
(2) We delineated proposed critical habitat areas by creating polygons around each population. Because of the narrowness of the actual CPSD area (less than 1.6 km (1 mi)) and the shifting and movement of habitat within the CPSD system, we included the entire width of the CPSD area surrounding each population.
(3) We then included a dispersal corridor, the dune area between the central and northern populations. We delineated the dispersal corridor as the entirety of the dune area between the central and northern populations because the entirety of the dune area could be used by dispersing adults.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features for CPSD tiger beetle. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
We are proposing for designation of critical habitat lands that we have determined are occupied at the time of listing and contain sufficient elements of physical or biological features to support life-history processes essential for the conservation of the CPSD tiger beetle.
One unit is proposed for designation based on sufficient elements of physical or biological features being present to support CPSD tiger beetle life-history processes. This unit contains all of the identified elements of physical or biological features and supports multiple life-history processes.
We are proposing one unit as critical habitat for CPSD tiger beetle. The critical habitat area we describe below constitutes our current best assessment of the area that meets the definition of critical habitat for CPSD tiger beetle. The unit will be occupied at the time of any listing and is currently occupied. The approximate area of the proposed critical habitat unit is shown in Table 2.
We present brief descriptions of the unit, and reasons why it meets the definition of critical habitat for CPSD tiger beetle, below.
The Unit consists of 921 ha (2,276 ac) of dune habitat and is located entirely within the CPSD geologic feature (see Proposed Regulation Promulgation, below). The southern 310 ha (767 acres) are located within CPSD State Park. The northern 610 ha (1,508 ac) are located on BLM land.
CPSD State Park is categorized as public land with a recreational emphasis. The State Park encompasses the southern 809 ha (2,000 ac) of the CPSD geologic feature. The habitat consists of a series of high, mostly barren, dry dune ridges separated by lower, moister, and more vegetated interdunal swales (Romey and Knisley 2002, p. 170). The proposed unit overlaps an existing 84 ha (207 ac) of State Park nonmotorized area (Conservation Area A). The remaining 227 ha (560 ac) of the State Park are open to ORV use.
The BLM Kanab Resource Area manages the northern 610 ha (1,508 ac) of the CPSD geologic feature (BLM 2000, p. 14). The BLM portion of the proposed Unit is characterized by dunes and swales that contain dense pockets of vegetation. In general, dunes and swales
This unit currently has all the physical and biological features essential to the conservation of the species. This unit requires special management considerations or protections from the threats of ORV use, drought, and climate change. It is located within the appropriate elevation range, and it contains numerous moist and vegetated swales near dunes. Adult and larval CPSD tiger beetle have occurred throughout the proposed State Park owned portion of the Unit continuously for the past 20 years (Knisley and Gowan 2011, p. 8), and small numbers of adult and larval CPSD tiger beetles occupy the northern extent within the BLM Conservation Area B habitat (Knisley and Gowan 2011, p. 9). The central portion of the proposed unit between Conservation Areas A and B may contain suitable swale habitat and larval beetles; however, comprehensive surveys have not been conducted in the past 20 years, and we have no information to confirm the present occurrence of larval CPSD tiger beetles. However, the central portion of the proposed unit is used by dispersing adult beetles, and likely serves as a link between the two known populations.
As stated previously, we recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species.
Only areas within the historical distribution of CPSD tiger beetle were considered for proposed critical habitat because areas outside of the historical distribution do not contain the requisite PCEs for the species. For this reason, we did not consider unoccupied areas outside of the CPSD geologic feature.
We did consider the 227 ha (560 ac) of sand dunes within CPSD State Park that exist south of our proposed critical habitat unit (see Figure 4 below). However, we have no information suggesting that this dune area was historical habitat, or is now suitable habitat for CPSD tiger beetle. Unlike the areas included within the proposed critical habitat unit, this southern area has no record of CPSD tiger beetle larval presence nor is there record of regular adult occurrence. As we described previously (see
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, or are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action;
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for CPSD tiger beetle. As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the CPSD tiger beetle. These activities include, but are not limited to:
(1) Actions that would reduce soil moisture or vegetative cover in swale habitats. Such activities could include, but are not limited to, continued or increased vehicular access or pedestrian traffic in or adjacent to occupied habitats. These activities could reduce soil moisture by churning up soils and exposing the moisture that is locked up between soil particles (beneath the surface) to greater evaporative pressure (Shultz 1988, p. 28) and by increasing soil compaction (Adams
Reduced soil moisture may lead to death of some CPSD tiger beetle larvae, as soil moisture is the most important factor determining larval tiger beetle survival (Knisley and Juliano 1988, entire). Reduced vegetative cover adversely impacts CPSD tiger beetle ovipositioning, adult thermoregulation, and prey base. Low prey densities can result in prolonged development and decreased survivorship in larval tiger beetles and reduced size in adults, which lowers fecundity in females (Pearson and Knisley 1985, p. 165; Knisley and Juliano 1988, p. 1990).
(2) Actions that would significantly affect dune morphology or dynamics. Such activities could include road or campground construction within or adjacent to the dunes. CPSD is a dynamic system where wind action continues to shape the dunes and redistribute sediment. Any significant alteration to dune morphology or dynamics may alter the arrangement and amount of swale and dune habitat available to CPSD tiger beetle.
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108–136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
There are no Department of Defense lands within the proposed critical habitat designation. Thus, we are not proposing any exemptions based on section 4(a)(3)(B)(i).
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species.
Under section 4(b)(2) of the Act, we consider the economic impacts of
Upon completion, copies of the draft economic analysis will be available for downloading from the Internet at
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist.
In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for CPSD tiger beetle are not owned or managed by the Department of Defense, and, therefore, we anticipate no impact on national security. Consequently, the Secretary does not propose to exercise his discretion to exclude any areas from the final designation based on impacts on national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any Tribal issues, and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.
In preparing this proposal, we have determined that there are currently no HCPs for CPSD tiger beetle, and the proposed designation does not include any Tribal lands or trust resources. We anticipate no impact on Tribal lands, partnerships, or HCPs from this proposed critical habitat designation. As we described previously, a CCA exists for CPSD tiger beetle (see
In accordance with our joint policy on peer review published in the
We will consider all comments and information received during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
At this time, we lack the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, we defer the RFA finding until completion of the draft economic analysis. This draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, we will announce availability of the draft economic analysis of the proposed designation in the
Land use sectors that could be affected by this proposed rule include: BLM land managers, CPSD State Park land managers, and ORV users that may
We have concluded that deferring the RFA finding until completion of the draft economic analysis is necessary to meet the purposes and requirements of the RFA. Deferring the RFA finding in this manner will ensure that we make a sufficiently informed determination based on adequate economic information and provide the necessary opportunity for public comment.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect the designation of this proposed critical habitat to significantly affect energy supplies, distribution, or use as there is no energy supply or distribution infrastructure near the proposed critical habitat. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)–(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely affect small governments because the lands being proposed for critical habitat designation are owned by the State of Utah, and the BLM. None of these government entities fit the definition of “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.
In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for CPSD tiger beetle in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this designation of critical habitat for CPSD tiger beetle does not pose significant takings implications for lands within or affected by the designation.
In accordance with Executive Order 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies in Utah. The designation of critical habitat in areas currently occupied by CPSD tiger beetle may impose nominal additional regulatory restrictions to those currently in place and, therefore, may have little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain the physical or biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the NEPA (42 U.S.C. 4321
However, when the range of the species includes States within the Tenth Circuit, such as that of CPSD tiger beetle
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.
We determined that there are no Tribal lands that were occupied by CPSD tiger beetle at the time of listing that contain the features essential for conservation of the species, and no Tribal lands unoccupied by the CPSD tiger beetle that are essential for the conservation of the species. Therefore, we are not proposing to designate critical habitat for CPSD tiger beetle on Tribal lands.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this package are the staff members of the Utah Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.11(h) by adding an entry for “Beetle, Coral Pink Sand Dunes tiger” in alphabetical order under “Insects” to the List of Endangered and Threatened Wildlife to read as follows:
(h) * * *
3. In § 17.95, amend paragraph (i) by adding an entry for “Coral Pink Sand Dunes Tiger Beetle (
(i)
(1) A single critical habitat unit is depicted for Kane County, Utah on the map below.
(2) Within this area, the primary constituent elements of the physical or biological features essential to the conservation of the Coral Pink Sand Dunes tiger beetle consist of:
(i) Dynamic sand dunes and swales within the Coral Pink Sand Dunes geologic feature that have:
(A) Elevations from 1,710 to 2,090 m;
(B) Appropriate levels of moisture and compaction to allow for burrowing (greater than 3 percent); and
(C) Vegetative cover of 23–57 percent that allows for ovipositing, adult thermoregulation, and abundant prey.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4)
(5) Unit 1: Coral Pink Sand Dunes Tiger Beetle, Kane County, Utah.
Fish and Wildlife Service, Interior.
Proposed rule; 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), propose to remove the valley elderberry longhorn beetle (
We will accept comments until December 3, 2012. We must receive requests for public hearings, in writing, at the address shown in
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Susan Moore, Field Supervisor, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Suite W–2605, Sacramento, CA 95825; telephone 916–414–6600; facsimile 916–414–6712. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339.
This document contains: (1) A 12-month finding in response to a petition to delist the valley elderberry longhorn beetle (beetle); and (2) a proposed rule to remove the valley elderberry longhorn beetle as a threatened species from the List of Endangered and Threatened Wildlife, and to remove the designation of critical habitat.
We reviewed all available scientific and commercial information pertaining to the five threat factors in our status review of the valley elderberry longhorn beetle. The results of our status review are summarized below.
• While there are minimal surveys to comprehensively evaluate current presence or population trends over time, we believe the available data are sufficient to conclude that the beetle persists in several more locations that were not known at the time of listing under the Act, some of which are either restored or protected, or both. Records since listing show the beetle may currently occupy most of the 26 locations identified and continues to persist in these locations, as is expected for some period of time into the future.
• Notwithstanding data uncertainties and the absence of protections or enhancements at many locations, we believe sufficient habitat will remain within this range into the foreseeable future, and the subspecies no longer meets the definition of endangered or threatened under the Act. Varying levels of protections have been applied to 15 of the 23 locations discovered since listing (10 locations contain well-protected lands and portions of 5 other locations are managed for natural and open space values), and management is being applied to occupied and unoccupied sites within these locations
We intend any final action resulting from this proposal to be based on the best scientific and commercial data available, and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, tribes, the scientific community, industry, or other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) Location-specific information concerning the cause and extent of past, recent, and projected future losses of total riparian vegetation and elderberry shrubs within the 26 individual river or watershed systems (referred to hereafter as locations) considered in this document to be, or to have previously been, occupied by the beetle, including the north Central Valley (Sacramento River; Thomes, Stony, Big Chico, Butte, Putah, and Cache Creeks; Feather, Yuba, Bear, and lower American Rivers; and the upper American River vicinity and the Ulatis-Green Valley Creeks vicinity) and the south Central Valley (Cosumnes River and vicinity, including Laguna and Dry Creek; Mokelumne River and vicinity, including Bear River; the lower Stanislaus River; upper Stanislaus hills vicinity, including the foothill systems between and around New Melones and Don Pedro Reservoirs; the Calaveras, Tuolumne, Merced, Kings, Kaweah, Tule, Kern, and San Joaquin Rivers; and Caliente Creek).
(2) Location-specific information (including Geographic Information System (GIS) data or tabular geographic coordinate data) on the range, distribution, population size, or population trends of the valley elderberry longhorn beetle, with particular emphasis on data collected since, or not included in, our 2006 5-year review.
(3) Location-specific information on protections in each of the above-mentioned locations (river systems or watersheds) with emphasis on discerning the geographic locations and extent of protected and unprotected areas, including, but not limited to: vegetative allowances, vegetative maintenance, monitoring programs with adaptive management actions, conservation easements, public land ownership and associated permanent protections, and any other form of location-specific protection.
(4) Location-specific information regarding male specimen observation and subspecies identification, with particular interest in recently reported locations in the eastern portion of the range in foothill elevations.
(5) Location-specific information on future anticipated level of threat of additional habitat loss, and the source of such loss (such as agricultural and urban development, or flood control). Where threats are not yet elevated in the absence of formal protection, we seek information on rationales for why threats may or may not be elevated in the future. We also seek information on future reduction in threats of habitat loss, where appropriate.
(6) Information, including geographic coordinates of the locations, about any additional populations of the valley elderberry longhorn beetle in other locations not considered in this proposed rule, or regarding the loss of previously existing populations.
(7) Information on all other threats, such as from scientific study of the valley elderberry longhorn beetle, inferred from study of a similar species, or location-specific threats information, including potential impacts from predators such as the Argentine ant, effects of small population size, and pesticides.
(8) New information and data on the projected and reasonably likely impacts to valley elderberry longhorn beetle associated with climate change.
(9) Documentation of the effectiveness (or lack thereof) of current mitigation, habitat restoration, and other conservation measures, particularly those mentioned in Talley
(10) Information on the spatial extent of occupation within locations at which the beetle has been observed in relation to habitat and threats within these areas.
(11) Location-specific information on the present quantity of riparian vegetation, elderberry within riparian vegetation, and elderberry within the watershed or vicinity, but not associated with riparian vegetation.
(12) Information regarding how best to conduct post-delisting monitoring, should the proposed delisting lead to a final delisting rule (see Post-Delisting Monitoring Plan Overview section below, which briefly outlines the goals of the draft plan that is available for public comment concurrent with publication of this proposed rule). Such information might include suggestions regarding the draft objectives, monitoring procedures for establishing population and habitat baselines, or for detecting variations from those baselines over the course of at least 10 years.
You may submit your comments and materials concerning this proposed rule (and associated draft post-delisting monitoring (PDM) plan) by one of the methods listed in
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. We must receive your request within 45 days after the date of this
In accordance with our joint policy on peer review published in the
We will consider all comments and information we receive during the comment period on this proposed rule as we prepare the final determination. Accordingly, the final decision may differ from this proposal.
The valley elderberry longhorn beetle was proposed as a threatened species with critical habitat on August 10, 1978 (43 FR 35636). A rule re-proposing critical habitat was issued on May 2, 1980 (45 FR 29373), to comply with amendments made to the Act. A final rule listing the beetle as threatened and designating critical habitat was published in the
On September 13, 2010, we received a petition dated September 9, 2010, from the Pacific Legal Foundation, as representative for Reclamation District Number 108,
The valley elderberry longhorn beetle (beetle) (
The valley elderberry longhorn beetle is a wood borer, dependent on (and found only in association with) its host plant, the elderberry (
The females lay eggs, singly or in small groups, on the leaves or stems of living elderberry shrubs (Barr 1991, p. 4). The larvae hatch in a few days, and bore into living stems that are at least 1 in. (2.5 cm) in diameter. The larvae remain within the elderberry stem, feeding on the pith (dead woody material) until they complete their development. Each larva creates its own gallery (set of tunnels) within the stem by feeding (Talley
Although there are insufficient valley elderberry longhorn beetle records to directly assess changes in distribution from historical times to the present, it is probable that beetle habitat distribution was coarsely related to the extent of riparian forests of which the host plant, elderberry, is often a component. However, we note that elderberry does not occur in all areas where riparian vegetation exists. Thus, we are unable to provide an accurate assessment of potential lost historical range of valley elderberry longhorn beetle habitat; rather, estimates are based on historical losses of riparian vegetation.
Historically, California's Central Valley riparian forests have experienced extensive vegetation loss during the last 150 years due to expansive agricultural and urban development (Katibah 1984, p. 23). These Central Valley riparian forests include those along the Sacramento and San Joaquin Valleys that comprise the north and south range, respectively, of the valley elderberry longhorn beetle, as discussed in detail below in “Occurrence Information and Population Size and Distribution.” Since colonization, these forests have been “* * * modified with a rapidity and completeness matched in few parts of the United States” (Thompson 1961, p. 294). As of 1849, the rivers and larger streams of the Central Valley were largely undisturbed (Thompson 1961, p. 305), supporting continuous bands of riparian woodland 4 to 5 mi (6.4 to 8 km) wide along some major drainages such as the lower Sacramento River, and generally about 2 mi (3.2 km) wide along the lesser streams (Thompson 1961, p. 307). Most of the riverine floodplains supported riparian vegetation to about the 100-year flood line (Katibah 1984, p. 25). A large human population influx occurred after 1849; however, much of the Central Valley riparian vegetation was rapidly converted to agriculture and used as a source of wood for fuel and construction to serve a wide area (Thompson 1961, p. 311). By as early as 1868, riparian woodland had been severely affected in the Central Valley, as evidenced by the following excerpt:
This fine growth of timber which once graced our river [Sacramento], tempered the atmosphere, and gave protection to the adjoining plains from the sweeping winds, has entirely disappeared—the woodchopper's axe has stripped the river farms of nearly all the hard wood timber, and the owners are now obliged to rely upon the growth of willows for firewood. (Cronise 1868
Based on the historical riparian woodlands information summarized in the paragraph above, we conservatively estimate that over 90 percent of that riparian vegetation in the Central Valley has been converted to agriculture or urban development since the middle of the 1800s (Thompson 1961, pp. 310–311; Katibah
For the purposes of this analysis, we are utilizing what we believe is a reliable estimate for remaining riparian vegetation within the Central Valley (i.e., 132,586 ac (53,656 ha) as reported by Geographic Information Center (2003)); this value will be used as a reference point when discussing impacts to remaining riparian vegetation in this document. The causes of this lost historical riparian vegetation are described in the following paragraphs as background information for this discussion on valley elderberry longhorn beetle's lost historical range. Causes of ongoing and future loss of riparian vegetation within the range of the beetle are discussed below in Summary of Factors Affecting the Species.
The historical clearing of riparian forests for fuel and construction in the Central Valley made this land available for agriculture (Thompson 1961, p. 313). Natural levees bordering the rivers, which once supported vast tracts of riparian vegetation, became prime agricultural land (Thompson 1961, p. 313). As agriculture expanded in the Central Valley, needs for increased water supply and flood protection spurred water development and reclamation projects. Artificial levees, river channelization, dam building, water diversion, and heavy groundwater pumping have further reduced riparian vegetation to small, isolated fragments (Katibah 1984, p. 28). In recent decades, these riparian areas in the Central Valley have continued to decline as a result of ongoing agricultural conversion, urban development, and stream channelization. As of 1989, there were more than 100 dams within the Central Valley drainage basin, as well as thousands of miles of water delivery canals and stream bank flood control projects for irrigation, municipal and industrial water supplies, hydroelectric power, flood control, navigation, and recreation (Frayer
Between 1980 and 1995, the human population in the Central Valley grew by 50 percent, while the rest of California grew by 37 percent (American Farmland Trust 2011). The Central Valley's population was 4.7 million in 1999, and it is expected to more than double by 2040 (American Farmland Trust 2011). The American Farmland Trust estimates that by 2040, more than one million cultivated acres will be lost and 2.5 million more put at risk (American Farmland Trust 2011). With this growing population in the Central Valley, increased development pressure could affect native vegetation communities.
A number of studies have focused on riparian vegetation loss along the Sacramento River, which supports some of the densest known populations of the beetle. Approximately 98 percent of the middle Sacramento River's historical riparian vegetation was believed to have been extirpated by 1977 (DWR 1979, entire). The State Department of Water Resources estimated that native riparian vegetation along the Sacramento River from Redding to Colusa decreased 34 percent from 27,720 ac (11,218 ha) to 18,360 ac (7,430 ha) between 1952 and 1972 (Conard
There is no comparable information on the historical loss of beetle habitat (i.e., the component of riparian vegetation that contains elderberry, which includes elderberry savanna and other vegetation communities where elderberry occurs, such as oak or mix-chaparral woodland, or grasslands adjacent to riparian vegetation). However, all natural habitats throughout the Central Valley have been heavily impacted within the last 200 years (Thompson 1961, pp. 294–295), and it can, therefore, be concluded that beetle habitat also has declined. Accordingly, loss of beetle habitat (also described in literature as nonriparian vegetation where elderberry occurs), and of specific areas where the beetle has been recorded (Barr 1991, entire), further suggests reduction of the beetle's range and increased fragmentation of its upland habitat.
We cannot conclude that the losses of riparian and aquatic vegetation described in this section are representative of the lost historical habitat for the valley elderberry longhorn beetle, because we have no way of knowing which of these lost areas were actually historically occupied by the beetle.
Historically and currently, the valley elderberry longhorn beetle is rarely observed (although we expect infrequent observations because there is infrequent survey data). For example, survey efforts conducted by Barr (1991, pp. 45–46), Collinge
When the valley elderberry longhorn beetle was listed in 1980, it was known from 10 occurrence records at three locations: the Merced River (Merced County), the American River (Sacramento County), and Putah Creek (Yolo County) (45 FR 52805, August 8, 1980; Service 2006a, p. 5; Talley
In Table 1, we present information for 201 occurrence records representing 26 locations that we believe represent the best available data regarding the distribution of this subspecies. These selected records include all of the major riparian systems within the Central Valley proper and a few foothill systems immediately above major reservoirs. We do not include 12 occurrence records from other riparian systems (i.e., they are not included in Table 1 nor are they discussed further in this rule), because we do not regard them as verified for various reasons, including that they: Are isolated records that contain extremely limited habitat; occur exclusively at higher elevations adjacent to the range of the California elderberry longhorn beetle (Oakhurst vicinity, Auberry vicinity, North Fork Willow Creek, Mariposa Creek, Los Banos Creek, Lawrence Livermore National Laboratory, North Fork Feather River); are extirpated (Middle River); represent a single shrub in rural development (Dixon); contain records from dead wood or old exit holes only (Honcutt Creek, Paynes Creek); or occur in a location within heavily maintained channels (Chowchilla). Additionally, there are also locations (Deer Creek, Battle Creek) that are represented by a single non-CNDDB report, and are not discussed.
An occurrence (or “element occurrence”) is a term used in the CNDDB to refer to an observation at a location where a species has been documented to occur, such as a sighting of a valley elderberry longhorn beetle, or of an exit hole (recent or otherwise), that indicates possible presence of the subspecies. CNDDB data do not represent the results of a systematic survey, but rather reflect a compilation of observations from multiple contributors and studies over time. Depending on information provided by contributors, many beetle occurrence records are merely points on the map, whereas others include information regarding the size of the occupied area. Beetle occurrences are distributed across the Central Valley, generally occurring singly and in small, relatively isolated clusters along river corridors. Noticeably larger clusters of beetle records occur along the northern portions of the Sacramento River (around Tehama, Glenn, and Butte Counties), along the lower American River (primarily in Sacramento County), and along the Kings River (in Fresno County). One hundred and twenty-five beetle occurrences have been recorded in the northern portion of the Central Valley (north of the line formed by the southern boundaries of Sacramento and Amador Counties), as compared with 76 south of that line. CNDDB presumes all 201 occurrences in the Central Valley are currently extant (CDFG 2007, p. 4). Based on this information, we understand these occurrences to be currently extant.
This rule uses the term “occurrence” to refer to the valley elderberry longhorn beetle observations reported in CNDDB records. We use the terms “site” and “survey site” to refer to a specific local area that is surveyed for evidence of beetle presence (Barr 1991, pp. 9, 19; Collinge
The number and area of occurrences do not necessarily indicate the number and size of interbreeding populations (defined as groups of interbreeding valley elderberry longhorn beetles). This is because CNDDB generally groups sightings of beetles or exit holes within 0.25 mi (0.4 km) of each other into the same occurrence (CDFG 2009, pp. 2–3). In addition, while beetle movement is restricted, dispersal is believed to occur over a scale of around 12 mi (20 km), and metapopulations (a set of partially isolated subpopulations between which dispersal is limited) form at a scale of 25 mi (40 km) or less, within which there can be many occurrences (Collinge
The infrequency of sampling data, and particularly the lack of recent sampling, makes it difficult to precisely determine population size and distribution of this subspecies. Dates last seen range from 1937 to 2008, with the vast majority occurring in the late 1980s and early 1990s (Service 2007, p. 11). For most of these sites, the date the subspecies was last seen and the date
Although the majority of valley elderberry longhorn beetle occurrence records are those recorded in CNDDB, other occurrence records (not necessarily reported to the CNDDB) originate from projects reviewed under section 7 or section 10 of the Act, monitoring of elderberry plantings, and a few location-specific surveys (see below, this section). There are not a large number of records from any of these other sources. The most extensive of these other records are from National Wildlife Refuge (NWR) units along the Sacramento River north of Colusa. For example, in 2003, while monitoring elderberry shrubs planted at five Sacramento River NWR units, surveyors found 449 beetle exit holes in 299 (3.8 percent) of the 7,793 shrubs surveyed (River Partners 2004a, pp. 2–3; Talley
Within the range of the valley elderberry longhorn beetle, local beetle populations tend to be sporadic, small, and clustered, independent of the availability of larger areas of mature elderberry. For example, a study conducted in 1985–1987 focused on areas of native riparian vegetation along 183 mi (295 km) of the Sacramento River floodplain north of Sacramento. Researchers found that 95 percent of surveyed sites contained elderberries, while exit holes (old and recent) occurred in 64 percent of surveyed sites (Lang
Barr (1991) conducted an extensive study of riparian vegetation in 1991 along major rivers and streams in both the Sacramento and San Joaquin Valleys, and the adjacent foothills. Barr (1991, pp. 15, 42) found evidence of valley elderberry longhorn beetle occupancy (recent and old exit holes) in 28 percent of surveyed sites (64 of 230 sites), and in about 20 percent of the 504 groups of elderberry shrubs examined at those sites (each site had one to several shrub groups). The author noted general observations (such as rarity of the beetle and clustered nature of occurrences (Barr 1991, p. 49)), and specific results that include recent exit holes occurring at only 14 percent of sites surveyed (33 of 230 sites). In 1997, Collinge
Evaluating available data on old and recent valley elderberry longhorn beetle exit holes to aid in the determination of current occupancy of locations and current distribution across the subspecies' range has proven difficult. For example, in the San Joaquin Valley surveyors for two recent studies along the Stanislaus and San Joaquin Rivers found relatively recent beetle exit holes at six sites (Kucera
Beetle occupancy appears to be lower in the south Central Valley as compared to the north Central Valley. In the south Central Valley, Kucera
In summary, multiple factors limit our ability to draw direct comparisons between all studies and over time, but, taken together, these studies consistently indicate a patchy distribution of the valley elderberry longhorn beetle throughout its range. As discussed above, the earliest study (Lang
There are no long-term population data available for the valley elderberry longhorn beetle; rather, the only available data are the CNDDB occurrence records and limited records from other sources (Table 1). The Collinge
For comparisons regarding valley elderberry longhorn beetle site occupancy, Collinge
The overall trend of valley elderberry longhorn beetle occupancy was moderately downward when comparing the 1991 and 1997 survey data (described above), as indicated by both short- and long-term extinctions and colonization sites with elderberry shrubs and by occupied shrub groups within each site (Talley
Collinge
Of the 14 drainages surveyed by both Barr (1991) and Collinge
In summary, minimal trend information exists related to valley elderberry longhorn beetle's rangewide population status. Collinge
Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. The Act directs that, to the maximum extent practicable, we incorporate into each plan:
(1) Site-specific management actions that may be necessary to achieve the plan's goals for conservation and survival of the species;
(2) Objective, measurable criteria, which when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the list; and
(3) Estimates of the time required and cost to carry out the plan.
Revisions to the list (adding, removing, or reclassifying a species) must reflect determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) that requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Objective, measurable criteria, or recovery criteria contained in recovery plans, must indicate when we would anticipate an analysis of the five threat factors under 4(a)(1) would result in a determination that a species is no longer endangered or threatened. Section 4(b) of the Act requires the determination made be “solely on the basis of the best scientific and commercial data available.”
While recovery plans are intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. Determinations to remove a species from the list made under section 4(a)(1) of the Act must be based on the best scientific and commercial data available at the time of the determination, regardless of whether that information differs from the recovery plan.
In the course of implementing conservation actions for a species, new information is often gained that requires recovery efforts to be modified accordingly. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more recovery criteria may have been exceeded while other criteria may not have been accomplished, yet the Service may judge that, overall, the threats have been minimized sufficiently, and the species is robust enough, that the Service may reclassify the species from endangered to threatened or perhaps delist the species. In other cases, recovery opportunities may have been recognized that were not known at the time the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan.
Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that recovery criteria need to be met for recognizing recovery of the species. Overall, recovery of species is a dynamic process requiring adaptive management, planning, implementing, and evaluating the degree of recovery of a species that may, or may not, fully follow the guidance provided in a recovery plan.
Thus, while the recovery plan provides important guidance on the direction and strategy for recovery, and indicates when a rulemaking process may be initiated, the determination to remove a species from the Federal List of Endangered and Threatened Wildlife is ultimately based on an analysis of whether a species is no longer endangered or threatened.
When the Service completed the final Valley Elderberry Longhorn Beetle Recovery Plan (Recovery Plan) in 1984 (Service 1984, pp. 1–62), there was little information regarding the beetle's life history, distribution, and habitat requirements to develop specific recovery objectives (Service 1984, p. 21). The development of these objectives was left for a later date (Service 1984, p. 39), and the Recovery Plan instead described four primary interim objectives (Service 1984, pp. 22). This was followed by an outline and narrative (referred to as the Step-Down Outline that includes many discrete recovery actions), including three of the four primary interim objectives, and four additional objectives that are interpreted as recovery actions (these latter four additional objectives are further described below in the section titled “Additional Recovery Objectives.”) The determination of delisting criteria is considered a discrete action within the Recovery Plan's narrative, Step 3—Determine ecological requirements and management needs of VELB (Service 1984, pp. 35–39). The four primary interim objectives were (Service 1984, p. 22):
(1) Protect the three known locations of the beetle;
(2) Survey riparian vegetation along certain Central Valley rivers for the beetle and habitat;
(3) Protect remaining beetle habitat within its suspected historical range; and
(4) Determine the number of sites and populations necessary to eventually delist the species.
In the following paragraphs, we address the extent to which the four primary interim objectives (criteria) have been accomplished.
The intent of this primary interim objective was to ensure that the three localities of the valley elderberry longhorn beetle known at the time the Recovery Plan was written in 1984 (American River in Sacramento County, Putah Creek in Yolo and Solano Counties, and Merced River in Merced County) would continue to sustain the subspecies and the necessary habitat components on which the subspecies depends at those locations.
The Recovery Plan states that the American River sites may be adequately protected through provisions of the American River Parkway Plan (Service 1984, p. 32). The River Corridor Management Plan for the Lower American River (Lower American River Task Force 2002, p. 94) refers to a future funded action to develop a valley elderberry longhorn beetle management plan that would include mapping, identification of stressors, and management protocols to avoid impacts. More recently, the American River Parkway Plan (County of Sacramento 2008) refers to an Integrated Vegetation and Wildlife Management Plan as pending, and references the 2002 Lower American River Corridor Plan for interim guidance. It includes generalized measures to maintain the beetle and its habitat into the foreseeable future (Talley
Similar guiding documents have been developed for Putah Creek, which may (if implemented) maintain the valley elderberry longhorn beetle at publicly accessible locations, where management focuses on maintaining natural habitat rather than protecting the beetle specifically (University of California at Davis 2005, pp. 24–33, App. A, p. 1; Gates and Associates 2006, pp. 13–15; Talley
The Recovery Plan states that the beetle location on the Merced River is from the McConnell State Recreation Area (Service 1984, p. 31). Evidence of the beetle (exit holes) was not observed by Barr (1991), but was noted in a 2010 non-CNDDB record (Table 1). We are unaware of the status of management of beetle habitat at this site.
Completion of Primary Interim Objective 1, with respect to the original intent of the Recovery Plan, would be represented by three locations that are preserved or protected with a reduction of threats to the valley elderberry longhorn beetle and its habitat. Threats would be addressed through ongoing management actions outlined in respective management plans. The Recovery Plan describes long-term administrative actions appropriate to protect and secure known colonies, to include coordinated long-term agreements (such as cooperative agreements, memoranda of understanding, or conservation easements) among primary resource management agencies (such as California Department of Water Resources, California Water Resources Control Board, U.S. Bureau of Reclamation, U.S. Army Corps of Engineers, County governments, and private landowners) (Service 1984, p. 30).
This objective is partially met by management planning efforts along the American River and Putah Creek; we are uncertain of the status of protection and management planning and implementation at the Merced River location. The development of management plans that emphasize open space and natural values for riparian areas that support the valley elderberry longhorn beetle along the American River Parkway and Putah Creek are considered beneficial to the beetle and its habitat into the future. As we discuss in further detail below, parklands such as these are facing increased pressures from human use as population centers have expanded since listing, and management plans lack sufficient specificity with respect to the subspecies or its host plant to ensure long-term persistence. We are unaware of regular monitoring of beetles or elderberry shrubs in these areas, from which recovery might be assessed. While there is no monitoring of beetles or elderberry shrubs in these areas, nor funding targeted on restoration or enhancement specifically for the beetle and its habitat, the beetle derives long-term benefit and prospects for persistence at these sites from management emphasis on maintaining riparian vegetation on the American River and Putah Creek.
As discussed throughout this document, the valley elderberry longhorn beetle was known at the time of listing from only three locations. Since listing, observations of the beetle have been recorded at 26 locations throughout the Central Valley (Table 1). The occurrence of additional populations was anticipated in both our listing rule and Recovery Plan (Service 1980, p. 52804; Service 1984, p. 32). The Recovery Plan recommended surveys within the suspected range of the beetle along portions of the Sacramento, Feather, Tuolumne, Stanislaus, Mokelumne, Calaveras, Cosumnes, and San Joaquin Rivers (Service 1984, pp. 23, 32–35). The intent of this interim objective was to document the existence of additional populations so that they could then be protected as described in Primary Interim Objective 3.
Achievement of this objective with respect to the original intent of the Recovery Plan is represented by completion of surveys in the above-named locations that resulted in the reporting of 23 additional locations of the valley elderberry longhorn beetle throughout the Central Valley. Many of these surveys are old, and the subspecies would benefit from further survey information throughout the Central Valley to update information and provide guidance for additional protection and restoration actions, as was originally contemplated in the Recovery Plan. The subspecies is more widespread than had been documented at the time of listing. The cumulative increase in beetle occurrences and increase in the known range of the subspecies in the Central Valley is considered sufficient to meet the original intent of Primary Interim Objective 2.
The intent of this recovery criterion was to ensure that newly discovered valley elderberry longhorn beetle habitat would be protected. The Recovery Plan (Service 1984, p. 40) describes administrative actions to protect newly discovered habitat, including a cooperative agreement or memorandum of understanding with the U.S. Army Corps of Engineers (Corps) to conduct surveys for valley elderberry longhorn beetle for activities they permit in riparian areas, as well the interagency consultation requirements of section 7 of the Act.
Of the 23 locations discovered since the Recovery Plan was prepared, 10 contain well-protected lands such as State or Federal wildlife areas, or areas with conservation easements (Bear River, Cosumnes River, Feather River, Sacramento River, Stony Creek, Big Chico Creek, Butte Creek, Tuolumne River, Kaweah River, and San Joaquin River). Portions of five locations are managed for natural and open space values, are partially on city parks or Forest Service lands, and have current protections against urban development, but no specific protections for the valley elderberry longhorn beetle or elderberry shrubs (Big Chico Creek, Lower Stanislaus River, Kings River, Upper Stanislaus Hills, and a portion of the Kaweah River upstream of Lake Isabella). The remaining locations, or
Achievement of criterion 3 with respect to the original intent of the Recovery Plan would be represented by protection of the remaining suitable habitat at newly discovered occupied beetle locations. This criterion is considered partially met because the protections discussed in our Recovery Plan have been applied to all or portions of 13 of the 23 newly discovered locations. Protections at all or portions of 12 locations described above are either lacking or unknown. Some locations have varying degrees of protection in different areas and have been counted in more than one category. Several of the newly discovered localities are now preserved and managed for at least the conservation of natural values associated with riparian vegetation, including, if not specifically for, the beetle. Such management is being applied to occupied and unoccupied sites within these locations. Management activities at these locations include habitat restoration to increase the amount of suitable habitat for potential use by the beetle. We consider Primary Interim Objective 3 to be partially met.
The intent of this primary interim objective was to utilize the results of surveys and other information to determine the areal extent and number of populations of valley elderberry longhorn beetle that would be needed to delist the subspecies. Our 1984 Recovery Plan stated that this would be determined (Service 1984, p. 39) “in part * * * by the remaining habitat and beetles found during survey work.” Thus, the delisting criteria would not be solely based on survey information, but also based on information derived from other actions described in the step-down narrative, including but not limited to, life history, population structure, limiting factors, adult behavior, site-specific management needs, tests of the effectiveness of various management practices, and other factors. To date, specific delisting recovery criteria have not been developed.
A greater number of beetle occurrences have been discovered than we previously anticipated, which has resulted in a total of 26 locations known today compared to 3 locations known at the time of listing. The new detections of the beetle in riparian vegetation throughout the Central Valley (as compared to only Sacramento, Yolo, Solano, and Merced Counties at the time the Recovery Plan was written) have altered our understanding of the subspecies' range and distribution. This improved understanding, together with restoration, habitat management, and protection implemented at various locations to date, have led us to determine that the beetle can persist without the protections of the Act. The status review and five-factor analysis contained in this proposed rule provide the information on which our delisting proposal is based.
As discussed above in this section, the Recovery Plan described four primary interim objectives (Service 1984, p. 22). The Recovery Plan also includes an outline and narrative (referred to as the Step-Down Outline), which contains four additional recovery objectives that are interpreted as recovery actions. These four additional recovery objectives (hereafter referred to as additional recovery actions) are a sample of the actions outlined in the narrative of the Recovery Plan that have been implemented for the benefit of the valley elderberry longhorn beetle. The four additional recovery actions summarized here are directly related to the primary interim objectives and include: (1) Determining the beetle's ecological requirements and management needs, (2) reestablishing the beetle at rehabilitated sites, (3) increasing public awareness of the beetle, and (4) enforcing existing laws and regulations protecting the beetle (Service 1984, pp. 22–26). A summary of our evaluation of these additional recovery actions is shown in the following four paragraphs, thus providing information for the public on the extent to which we have implemented and completed these actions.
4.
The Recovery Plan did not include recovery criteria, but did include four primary interim objectives that were to be addressed initially and used to develop recovery criteria. Our review indicates that interim objective 1 is partially met by management and planning efforts at two of the three originally known locations of the valley elderberry longhorn beetle. Interim objective 2 is met because surveys were conducted throughout the range of the subspecies and identified 23 additional locations at which the valley elderberry longhorn beetle was present. However, much of this information is old, and additional surveys should be conducted at these locations and others. Interim objective 3 is considered partially met because the protections discussed in the Recovery Plan have been applied to all or portions of 13 of the 23 locations discovered since listing (or since the Recovery Plan was finalized). Interim objective 4 is considered partially met, noting that recovery of species is a dynamic process requiring adaptive management, planning, implementing, and evaluating the degree of recovery of a species that may, or may not, fully follow the guidance provided in a recovery plan. Notwithstanding data uncertainties and the absence of protections or enhancements at some locations, there are a significantly greater number of known occurrences and locations of the beetle (resulting in a significantly greater range size as compared to the time of listing) across the Central Valley. Based on our review of the Recovery Plan for the subspecies and our review of the beetle's status under section 4(a)(1) of the Act presented below, we are proposing to remove the valley elderberry longhorn beetle from the List of Endangered and Threatened Wildlife.
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for adding species to, reclassifying species on, or removing species from the Federal List of Endangered and Threatened Wildlife (List). We may determine a species 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. The five listing factors 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; and (E) other natural or manmade factors affecting its continued existence. We must consider these same five factors in delisting a species. We may delist a species according to 50 CFR 424.11(d), if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened (as is the case with the valley elderberry longhorn beetle); or (3) the original scientific data used at the time the species was classified were in error.
We took the following steps in order to examine the scale of threats and potential for extinction for the valley elderberry longhorn beetle within the 26 known beetle locations and as a whole:
(1) We compiled a rangewide GIS spatial database that included all available information on beetle records, riparian vegetation, section 7 consultations, mitigation actions, conservation and other protection actions (including specific plantings of elderberry shrubs), current (year 2010) aerial imagery, roadways, and near-term population growth (i.e., through the year 2020).
(2) We used the database (described in step 1 above) and supporting information to synthesize a best professional opinion of the prospectus for persistence with delisting at those locations, considering current habitat; occupation records by location (presented previously in Table 1); threats; protections and recovery actions; and studies needed to address uncertainties in species data, protections, threats, and prospectus for persistence.
The five factors listed under section 4(a)(1) of the Act and their analysis in relation to the beetle are presented below (additional discussion is presented in the Finding section below regarding these threats within the context of the north Central Valley, south Central Valley, and the subspecies as a whole across its range). This analysis of threats requires an evaluation of both the threats currently facing the subspecies and the threats that could potentially affect it in the foreseeable future, following the delisting and the removal of the Act's protections. The Act defines an endangered species as a species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1632(6)). A threatened species is one that is likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1632(20)).
In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and during the status review, we attempt to determine how significant a threat it is. The threat is significant if it drives or contributes to the risk of extinction of the species, such that the species warrants listing as endangered or threatened as those terms are defined by the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that the potential threat is likely to materialize and that it has the capacity (i.e., it should be of sufficient magnitude and extent) to affect the species' status such that it meets the definition of endangered or threatened under the Act.
At the time of listing, habitat destruction was identified as one of the most significant threats to the valley elderberry longhorn beetle (45 FR 52805, August 8, 1980; Eng 1984, pp. 916–917). This section analyzes four threats that have been identified to impact, or potentially impact, the valley elderberry longhorn beetle under Factor A:
(1) Agricultural and urban development;
(2) Levees and flood protection;
(3) Road maintenance and dust; and
(4) Climate change.
As discussed above (“Lost Historical Range” section), a significant amount of riparian vegetation (of which a portion contained elderberry shrubs) has been converted to agriculture and urban development since the mid-1800s according to estimates by Thompson 1961 (pp. 310–311) and Katibah
Although riparian vegetation in the Central Valley has been lost over time, a number of areas have been restored to accommodate the habitat needs and recovery of the valley elderberry longhorn beetle (riparian vegetation that specifically contains elderberry shrubs), as described in detail in Factor A, “Conservation—Habitat Restoration and Protection” below. To provide an indication of the amount of beetle habitat lost and restored since the beetle's listing in 1980, we reviewed Federal projects for which we conducted consultations for the beetle under section 7 of the Act. As part of these consultations, incidental take for the beetle was measured in terms of acres of habitat impacted, because incidental take of beetles themselves could not be determined due to the biology of the subspecies and difficulty in monitoring it. From 1983 to 2006, the incidental take we authorized amounted to roughly 10,000 to 20,000 ac (4,047 to 8,094 ha) of potential beetle habitat (both occupied and suitable; suitable is defined as habitat that contains mature elderberry shrubs with stems of at least 1 in. (2.5 cm) in diameter), primarily for projects associated with urbanization, transportation, water management, and flood control (Talley
Although incidental take authorized by section 7 consultations has occurred throughout the current range of the subspecies, it has been concentrated in areas predominantly developed prior to the subspecies' listing under the Act. Additionally, not all of the incidental take authorized by those section 7 consultations has been carried out, so the number of actual acres of habitat lost is some unknown degree less than the number of acres of habitat we anticipated (Talley
In addition to evaluating section 7 Federal projects to provide an indication of the amount of elderberry shrubs lost or restored since the valley elderberry longhorn beetle's listing, we reviewed the 20 incidental take permits issued to non-Federal entities (undertaking otherwise lawful projects that might result in the take of an endangered or threatened species) under section 10(a)(1)(B) of the Act. The majority of these permits minimally impacted the beetle or its habitat (elderberry shrubs), and only eight of those permits are still active. We issue these permits only upon our approval of a habitat conservation plan (HCP) that is developed, funded, and implemented by the permittee, and that adequately minimizes and mitigates the effects of incidental take associated with the proposed activity. Incidental take associated with the 12 expired permits is estimated at less than 100 ac (40 ha) of beetle habitat. For the eight active permits, 4,808 ac (1,946 ha) of take is permitted, and all of the corresponding HCPs contain elderberry shrubs and evidence of at least past occupancy (exit holes) of the beetle within their boundaries (noting that at least one known beetle location is addressed by each HCP). Section 10(a)(2)(B)(ii) of the Act requires HCP applicants to agree to mitigate takings of identified species “to the maximum extent practicable.” These mitigation requirements are built into each HCP implementing agreement, so even if the beetle is delisted they will continue to apply within the bounds of the HCPs.
Unauthorized impacts to the beetle or elderberry host plant are likely to have occurred, and the Service is aware of examples. Talley
Conversion of agricultural lands to urban areas and direct urbanization of natural areas that include riparian vegetation continue to impact the valley elderberry longhorn beetle, because elderberry is a minor component of the vegetation that grows (in some areas) along existing irrigation channels, on hedgerows, and on, and adjacent to, levees that provide flood control to this agriculture. Existing agriculture continues to affect beetle habitat through suppression of vegetation in, what are now, channelized tributaries and split channels that function for drainage and irrigation. For example, vegetation suppression occurs in channelized tributaries or split channels at approximately two locations in the north Central Valley (Sacramento River-Chico to Colusa and the Ulatis-Green Valley Creeks locations) and more frequently at approximately six locations in the south Central Valley (Lower Stanislaus hills, Calaveras River-Stockton Diverting Channel, Merced River, Kings River, Kaweah River, and Caliente Creek). Agricultural lands provide the additional benefit of buffering natural lands, whereas urban land uses most often do not. Agricultural development has probably reached close to its maximum extent in
During the 1990s, the Central Valley experienced a decline of about 223,000 ac (90,245 ha) of high-quality farmland (American Farmland Trust 2011). Although some of this is due to reclassification, about 100,000 ac (40,469 ha) is considered to have been urbanized (homes, businesses, impervious surfaces) (American Farmland Trust 2011). Between 2000 and 2002, 27,000 ac (10,926 ha) of farmland were urbanized (American Farmland Trust 2011). Examples of light residential or rural ranchette development since listing (most recent) are evident in areas along as the Consumnes River (in the vicinity of the towns of Wilton and Rancho Murieta), Bear River (east of Lodi, with documented 1984 valley elderberry longhorn beetle record), Cache Creek (north and adjacent to the city of Woodland), the Kern River (expansion of Bakersfield), and many other locations throughout the State. Most of these developments have resulted in some direct loss of beetle habitat, as evidenced by consultation actions.
In sum, losses of valley elderberry longhorn beetle habitat associated with agricultural activities through conversion to urban uses is likely to occur to some extent because elderberry is a minor component of vegetation along irrigation channels, levees, and hedgerows, and agriculture is a major land use adjacent to the Sacramento and San Joaquin Rivers and their tributaries. Many of the 26 locations in both the Sacramento and San Joaquin Valleys, as well as to areas outside of the 26 locations are affected by this activity. However, compared to the past loss of beetle habitat that resulted from flood control and agricultural development, future losses are likely to result from progressive conversion of agriculture into urban growth.
The range of the valley elderberry longhorn beetle is now known to be greater than at the time of listing, and it is known from 26 locations throughout the Central Valley. The bulk of habitat protection and restoration activities have occurred in the northern Central Valley locations. In the south Central Valley, where historical habitat losses are believed to have been greater, a more limited quantity of protected and restored beetle habitat exists. Even with consideration of the restoration activities that have occurred in the subspecies' range (see the Factor A, “Conservation—Habitat Restoration and Protection” section below), the threat posed by agricultural and urban development (including activities that impact the vegetation that grows along existing irrigation channels, levees, etc.) may continue into the future in both the north and south Central Valley as urban growth places agricultural lands and associated riparian vegetation at further risk.
The flood protection system in California's Central Valley includes about 1,600 mi (2,575 km) of Federal project levees, 1,200 mi (1,931 km) of designated floodways, 26 project channels covering several thousand acres, and 56 other major flood protection works. Projects that may have impacted, or could impact, valley elderberry longhorn beetle habitat include: levee construction; bank protection; channelization; facility improvements or ongoing maintenance activities, including clearing and snagging; construction of bypasses; and construction of ancillary features (such as overflow weirs and outfall gates). Some of these projects or facilities predate Federal authorization, and either meet, or are modified to meet (through current or future activities), Federal standards. Many predate listing, although some facilities have been constructed since listing, and additional projects are proposed for imminent construction.
Construction and maintenance of these flood protection systems and associated reservoir flood control facilities have resulted in direct losses of riparian vegetation within project impact areas, and indirect impacts in surrounding riparian vegetation due to agricultural and urban development that resulted from flood protection (see Factor A, “Agricultural and Urban Development” above). Flood control facilities are also subject to vegetative removal activities to maintain flood capacity or alleviate perceived levee risks (see below).
Examples of past major activities in the north Central Valley include the Sacramento River Flood Control Project (980 mi (1,577 km) of levees); Sacramento River Major and Minor Tributaries (channel enlargement of portions of Chico, Mud, Dandy Gulch, Butte, Little Chico, Elder, and Deer Creeks); American River Flood Control Project (18 mi (29 km) of levee); Sacramento River Chico Landing to Red Bluff (increased bank protection); Lake Oroville-New Bullards Bar (reservoir footprints); and the Sacramento River Bank Protection Project (915,000 linear feet (ft) (279 km) of bank protection in Phases I and II with Phase III not yet specified). Examples of past major activities in the south Central Valley include the Lower San Joaquin-River and Tributaries project (major flood control activities) and the Mormon Slough Project (levees, channel improvements, pumping plants). With the exception of the Cosumnes River, major multi-purpose dams exist on both north and south Central Valley mainstems and all major tributaries, including those at the following locations: Lake Shasta, Black Butte Lake, Folsom Lake, Lake Oroville, New Bullards Bar Reservoir, Lake McClure, Don Pedro Reservoir, New Melones Lake, Pardee Reservoir, Camanche Reservoir, New Hogan Lake, Bear River Reservoir, Owens Reservoir, Mariposa Reservoir, H.V. Eastman Lake, Hensley Lake, and Millerton Lake. Smaller dams exist in other locations within the range of the valley elderberry longhorn beetle. Tributaries in the southern portion of the south Central Valley (within the range of the beetle) have also been affected by major dams on the Kings River (Pine Flat Dam), Lake Success on the Tule River (Success Dam), and Kern River (Isabella Dam).
Flood control activities are evident as current threats and appear more frequently in the north Central Valley (such as the Lower American River and Cache Creek locations) and less frequently in the south Central Valley (such as Tule River-Deer Creek and San Joaquin River locations). Information presented in the following paragraphs is a more detailed account of potential impacts to remaining riparian vegetation (that may or may not contain elderberry shrubs) at existing facilities, including along levees, channels, etc., as previously introduced in the section above (Factor A, “Agricultural and Urban Development”).
Currently, the State Plan of Flood Control (SPFC) in California's Central Valley is composed of 20 major projects along the Sacramento and San Joaquin Rivers and tributaries (CVFMPP 2010).
(1) Ongoing projects, such as the American River Watershed Investigation, the Natomas Levee Improvement, and the West Sacramento Levee Improvement Project;
(2) Projects under other Corps authorities, such as RD 17 Phase III (San Joaquin River, north of Lathrop);
(3) Projects in the planning phase, such as the Feather River West Levee Project (44 mi (71 km)) from Thermolito Afterbay to the Sutter Bypass; and
(4) Projects under investigation but not yet authorized, such as the Sacramento River Bank Protection Project (SRBPP) Phase III.
Riparian vegetation losses from development projects have been compensated through a variety of restoration activities or protections of land, as described in various places throughout this document (for example, see the
We also anticipate that future actions will be implemented within the valley elderberry longhorn beetle's range to treat areas for flood damage under emergency authority (Pub. L. 84–99) on an as-needed basis, such as flood damage repairs made in 1997 and 1999. Past emergency actions (often involving placement of rock revetment) and continued maintenance since construction (which precludes or suppresses future vegetation growth) have affected hundreds of sites and many miles of river systems (such as the recent emergency levee repair conducted along the Sacramento River (American River confluence south). Maintenance practices are relatively frequent to achieve compliance with the Corp's standard operating procedures (for processing Department of the Army permit applications) and vary with location, ranging from twice a year to once every 5 years, or more, depending on specific site characteristics and need. These activities can damage or remove vegetation that could potentially provide beetle habitat.
Trees and shrubs grow to a variable extent on most of the State-Federal levees in the Central Valley; this vegetation (which in some instances may include elderberry shrubs) provides an important remnant of the riparian forest that once lined the Sacramento and San Joaquin Rivers and tributaries. Currently, there is no estimate of the acreage of riparian vegetation on Central Valley levees and other flood facility lands, nor of what portion of the riparian vegetation contains elderberry shrubs. The California Department of Water Resources is in the process of determining the acreage of woody vegetation on levees using recent aerial photography of the entire flood control system. This information was not available to us for analysis and consideration in this proposed rule.
Ongoing and future maintenance of levees, channels, and other facilities for purposes of flood control and agriculture may result in future losses of riparian vegetation and associated valley elderberry longhorn beetle habitat, or at least prevent establishment of additional beetle habitat on, and immediately adjacent to, levees or within channels that otherwise could benefit the beetle. The effect of flood control and associated maintenance on riparian vegetation varies somewhat with the extent of setback (if present) of the levee from the water's edge, and the magnitude of maintenance activities within the designated floodway. Although some locations do have vegetated areas on or adjacent to the floodway (such as the American River, unleveed portions of the Sacramento River from Red Bluff to Chico, Feather River portions of east bank), many do not. Flood control activities, combined with associated agricultural and urban development, are considered largely responsible for the loss of riparian vegetation throughout the beetle's range before and since listing, and also for the presence of less riparian vegetation along the lower Sacramento River compared to the upper Sacramento River. Specifically, the lower Sacramento River, Sacramento-San Joaquin Delta, and San Joaquin River contain areas that are constrained by flood control levees and areas of urban and agricultural development, thereby limiting future restoration opportunities in those areas.
The California Central Valley Flood Protection Board (Flood Protection Board; previously known as the Reclamation Board) oversees the Central Valley's flood control system, and has jurisdiction over the floodplains and levees on both sides of the waterways. For more than a decade, the Flood Protection Board has generally denied permits for projects that involve planting elderberry shrubs in floodplain areas between levees, because the Board is concerned that additional beetle habitat could interfere with, or delay, flood prevention measures (Talley
Since listing, there have been nationwide changes to Corps flood control system maintenance requirements. Specifically, on April 10, 2009, the Corps issued Engineering Technical Letter (ETL) 1110–2–571 (Guidelines For Landscape Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures). This ETL standard establishes a vegetation-free zone for the top of all levees and levee slopes, and 15 ft (4.5 m) on both the water and land sides of levees (which could potentially eliminate occupied or unoccupied elderberry shrubs that may be present). Currently, and in specific cases, the Corps provides for the potential issuance of variances from the standard vegetation guidelines in the ETL, which in turn provides opportunities to maintain or improve valley elderberry longhorn beetle habitat throughout its range. Variances may be issued to further enhance environmental values or meet State and Federal laws and regulations. The variance must be shown to be necessary, and to be the only feasible means to: (1) Preserve, protect, and enhance natural resources; or (2) protect the rights of Native
We are not presently able to determine how many levee segments may be eligible for a variance. At the time of this proposal, the Service does not consider the variance process to be a reliable and consistent means of assuring the protection and persistence of beetle habitat where it is at risk of loss from flood control activities. We conclude this because a variance has been granted only once in the past. The Corps is currently preparing to issue a public draft of a new policy guidance letter for the variance process; thus, we do not know the extent to which the Corps may be willing to accommodate variances for woody vegetation that may include elderberry shrubs in the future variance process.
In addition to ongoing work with the Corps regarding the variances, some parts of the State-Federal flood protection system in the Central Valley currently meet the ETL standards for vegetation, and the State will enforce the standards in those areas in the future. New levees being added to a flood protection system (such as setback levees, backup levees, and ring levees) will also be designed, constructed, and maintained to ETL standards. This means the type and stature of vegetation that provides valley elderberry longhorn beetle habitat will continue to be suppressed, although additional habitat would be available off the levees within new levee areas. The older and original levees built immediately adjacent to California's major riverine systems present unique challenges that may require regional variances or other engineered alternatives if vegetation is to remain, or else they too may be required to establish and maintain the vegetation-free zones required by the ETL (as described in the preceding paragraph).
The Sacramento Area Flood Control Association sponsored a symposium to discuss issues related to levees and vegetation in August 2007. The symposium led to formation of the California Levees Roundtable, a collaborative partnership of Federal, State, and local officials. A product of the Roundtable was the release of the
The Framework has interim criteria that are currently being implemented for vegetation control on levees, which include requirements for tree branches (but not trunks) to be trimmed up to 5 ft (1.52 m) above the base and sides of the levee, and up to 12 ft (3.6 m) above the top of the levee. The interim criteria also call for enough thinning of vegetation to allow visibility and access to the levee. Thus, the interim criteria and the Framework allow properly trimmed elderberry shrubs to grow on and around levees, whereas the Corps' ETL standard vegetation guidelines (assuming no variance) currently do not.
The Framework interim criteria are in effect until the CVFPP plan is completed in 2012. It is not clear at this point whether the CVFPP will incorporate the ETL standards, the Framework interim criteria, or some other set of standards collaboratively developed by the agencies involved. Accordingly, the effect of the Framework document is to allow more vegetation to remain in place than would the ETL guidelines. Neither the Framework nor the ETL guidelines are currently structured to accommodate extensive riparian restoration that potentially could enable the valley elderberry longhorn beetle to be restored to river reaches from which it currently is absent due to lack of habitat. Therefore, where such additional vegetation may be deemed appropriate to benefit the beetle, a variance would be required.
The Framework identified a deadline of November 1, 2010, for Local Maintaining Agencies (LMAs) to be in compliance with the Framework interim criteria. The Department of Water Resources conducts levee inspections twice a year, and reported that 86 of the 106 LMAs (81 percent) were in compliance with the interim criteria by the deadline (Eckman 2010, pers. comm.). Thirteen LMAs report they will not comply, and seven report they may comply. The most common reasons for not complying and for uncertainty about complying include cost, impact minimization requirements, and inconsistencies between agencies and issues relating to presence of elderberry shrubs. Thus, elderberry shrubs may persist in a portion of the 9 percent of LMAs where compliance is uncertain for a temporary and undetermined time period in part because some landowners or agencies think permits to cut or remove elderberries are difficult to obtain and they will be required to compensate for loss and damage. Additionally, landowners view the process of obtaining a permit to cut and remove elderberry as time-consuming. Currently, compliance with the interim criteria would result in impact minimization or compensation measures for any elderberry branches or shrubs removed, in accordance with the Service's conservation and mitigation guidelines (Service 1996, pp. 3, 4; Service 1999a, pp. 3, 4). These beneficial measures would no longer be required if the beetle is delisted.
Based on data compiled by the Department of Water Resources during their levee inspections (Eckman 2010, pers. comm.), about 91 mi (146 km) of the total 1,600 mi (2,575 km) of levees (6 percent) do not meet the Framework interim criteria requiring trimming of branches and thinning of brush. About 111 elderberry shrubs were estimated to be present on 2.5 miles (4 km) of those 91 miles (146 km), which is less than one percent of the total length of the levees (Eckman 2010, pers. comm.). Most, if not all, of the levee system locations are within the 26 locations described in Tables 1 and 2 of this proposed rule. Near-term impacts to remaining beetle habitat as a result of maintenance needed to comply with the Framework and interim criteria are considered relatively small compared to the suppression of vegetation from maintenance throughout the entire flood control system.
In summary, maintenance of the existing levee and flood protection facilities, ongoing projects, and potential future flood control activities or projects may include direct impacts in the form of temporary or permanent losses of existing riparian vegetation (including any associated elderberry shrubs and valley elderberry longhorn beetles). In some cases, there may also be permanent loss of riparian vegetation
Flood control elements dominate the river systems that encompass most of the valley elderberry longhorn beetle's range in the Central Valley proper, measuring in the hundreds of miles and millions of linear feet of river bank. It is our judgment that the effect of flood control and associated land-uses resulting from this flood control on the beetle has been significant at certain localities in terms of habitat quantity, spatial distribution, and connectivity. Despite the increased number of occurrences of the subspecies and its larger range than was previously known, this range encompasses a number of other maintained floodways for which protections of beetle habitat have not been established. Levee and flood protection activities (both maintenance and new construction) remain an ongoing threat at some of the largest beetle locations or major portions thereof (such as the Sacramento and San Joaquin Rivers). Maintenance of these floodways can conflict with the recovery need to establish or protect riparian vegetation. Further, this maintenance can preclude opportunities to establish greater connectivity between beetle populations. Finalization of the CVFPP, the PGL, and implementation of the ETL will influence the nature and magnitude of impacts to riparian vegetation from flood control activities and the locations and size of potential riparian restoration throughout Central Valley streams and floodways.
The Recovery Plan for the valley elderberry longhorn beetle, section 7 biological opinions, and research results have identified roads and trail maintenance, and potentially dust, as threats capable of lowering the quality of valley elderberry longhorn beetle habitat (Service 1984, p. 41; Service 2002, p. 3; Huxel
There is no evidence to suggest that the proximity of conservation sites adjacent to dirt or paved trails and low-traffic roadways results in detrimental effects to the valley elderberry longhorn beetle or its habitat, as long as dust levels do not exceed the low levels found in the study (Talley
Consideration of climate change is a component of our analyses under the Act. In general terms, “climate” refers to the mean and variability of various weather conditions such as temperature or precipitation, over a long period of time (e.g. decades, centuries, or thousands of years). The term “climate change” thus refers to a change in the state of the climate (whether due to natural variability, human activity, or both) that can be identified by changes in the mean or variability of its properties and that persists for an extended period—typically decades or longer (Intergovernmental Panel on Climate Change (IPCC) 2007a, p. 78).
Most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate, and is very likely due to the observed increase in greenhouse gas concentrations in the atmosphere as a result of human activities, particularly emissions of carbon dioxide from fossil fuel use (IPCC 2007a, p. 5 and Figure SPM.3; Solomon
The projected magnitude of average global warming for this century is very similar under all combinations of models and emissions scenarios until about 2030. Thereafter, the projections show greater divergence across scenarios. Despite these differences in projected magnitude, however, the overall trajectory is one of increased warming throughout this century under all scenarios, including those which assume a reduction of greenhouse gas emissions (Meehl
Various types of changes in climate can have direct or indirect effects on species, and these may be positive or
Projected changes in climate and related impacts can vary substantially across and within different regions of the world (such as IPCC 2007a, pp. 8–12). Thus, although global climate projections are informative and in some cases are the only or the best scientific information available, to the extent possible we use “downscaled” climate projections, which provide higher-resolution information that is more relevant to the spatial scales used to assess impacts to a given species (see Glick
Global climate change may have significant effects on plant species distributions in California over the next 100 years (Loarie
Average temperatures have been rising in the Central Valley of California, and this trend will likely continue because of climate change. Climate change may also affect precipitation and the severity, duration, or periodicity of drought. However, there is a great deal of uncertainty as to the rate at which the average temperature may increase, and the effect of climate change on both precipitation and drought. In addition to the uncertainty associated with how the overall climate of the Central Valley may change, the impact of climate change on the valley elderberry longhorn beetle will depend on a complex array of other factors, including how the subspecies and its habitat respond to climate change. We know that one of the elderberry species on which the beetle depends is well adapted to warm temperatures, and extends its range into southern California and northern Mexico. We are not aware of information that would allow us to make a meaningful prediction that potential changes in temperature and precipitation patterns would significantly affect elderberry growth, or whether such changes may cause shifts in the timing of elderberry flowering relative to beetle emergence, or affect the relationship of these two species in any other way.
The amount of riparian vegetation and associated beetle habitat considered conserved has been revised since our 5-year review (Service 2006a). According to the estimate used in our 5-year review, since the valley elderberry longhorn beetle was listed in 1980, approximately 45,000 ac (18,211 ha) of existing riparian vegetation had been acquired or protected (Talley
The estimate of 45,000 ac (18,211 ha) of acquired or protected habitat includes 6,600 ac (2,671 ha) of land in the San Joaquin River NWR, and assumes these lands could support the valley elderberry longhorn beetle under favorable management (Talley
Some existing areas that are protected and currently provide a benefit to the valley elderberry longhorn beetle were not yet established at the time that Talley
For this proposed rule, we constructed a GIS database from several sources to provide a range of estimates of the current amount and distribution of protected riparian vegetation (which may or may not contain elderberry shrubs) in the range of the valley elderberry longhorn beetle, and the amount of beetle habitat restored or created. For reference and as stated previously in the “Lost Historical Range” section, 132,586 ac (53,656 ha) of riparian vegetation remained across the Central Valley in 2003 (Geographic Information Center 2003). Current range estimates are as follows:
(1) Protected Riparian Vegetation—Areas of land within the range of the beetle that is either subject to a conservation easement, is riparian land managed and held in fee by CDFG, or public land known to be managed for conservation (such as Cosumnes River Preserve). The amount of such protected riparian vegetation is 21,536 ac (8,715 ha). We used a GIS-layer of riparian vegetation from the Department of Water Resources to obtain this estimate.
(2) Restored Riparian Vegetation—Areas of predominantly Federal and State lands of any riparian type, including both beetle habitat and general riparian combined (approximately 13,000 ac (5,261 ha)).
(3) Restored Beetle Habitat—Areas with elderberry plantings and partially overlapping restoration lands where these have been planted, including various mitigation banks and excluding approximately 1,600 ac (648 ha) not yet planted. This estimate is approximately 12,400 ac (5,018 ha).
Each of these estimates should be interpreted with caution. The riparian vegetation GIS layer may include areas too wet for elderberry to grow, and may exclude small fragments, or some adjacent lands, where elderberry or other riparian could potentially grow. For the elderberry plantings total (with the exception of transplantings and plantings near occurrences), some elderberry has been planted too recently to expect the plants to be occupied by the valley elderberry longhorn beetle because occupancy increases as a function of time, particularly after 7 years (River Partners 2004a, p. 4). Some restoration has not been successful as noted above, and some is within mitigation banks intended to offset losses of beetle habitat elsewhere. Finally, there is significant, albeit incomplete, overlap among these riparian vegetation estimates.
Eight agencies and private organizations have completed 26 projects to enhance or restore 4,950 ac (2,003 ha) by planting elderberry (Talley
The largest effort to protect and restore beetle habitat (through elderberry plantings) is that at the Sacramento River NWR. Valley elderberry longhorn beetle habitat on this refuge currently totals more than 2,400 ac (974 ha). The Sacramento River NWR was established in 1989, with a focus on conserving the beetle as well as other native riparian species (Service 2006a, p. 9). Over 100,000 elderberry seedlings or transplanted shrubs have been planted at the refuge (Talley
Unfortunately, in 2006, elderberry shrubs that had been planted on approximately 765 ac (310 ha) in the San Joaquin River NWR and 35 ac (14 ha) in the Mohler Tract of the Stanislaus River died due to flooding (Griggs 2007, pers. comm.; River Partners 2007, p. 47). The San Joaquin River NWR responded by planting elderberry on about 120 ac (49 ha) of higher elevation land. Additionally, drought at the San Luis and Merced National Wildlife Refuges killed all but about 100 elderberry shrubs out of the 250 ac (101 ha) planted at those sites (Woolington 2007, pers. comm.). The remaining total areas of restored valley elderberry longhorn beetle habitat (roughly 4,000 ac (1,619 ha), or the total restored acreage (4,950 ac) (2,003 ha)), less the 765 ac (310 ha) on San Joaquin NWR and 250 ac (101 ha) at San Luis/Merced NWR, are likely to remain viable for the beetle into the foreseeable future, as evidenced by the fact that the elderberry shrubs survived the flooding and droughts discussed above.
Seven agencies and private organizations have completed, or are completing, 19 projects restoring or enhancing riparian vegetation totaling approximately 1,592 ac (644 ha), but no elderberry are being planted at these sites (Talley
Currently, of the 26 known locations of valley elderberry longhorn beetles, 4 include a significant component of well-protected lands with known beetle habitat mainly as State or Federal wildlife areas (Bear River, Cosumnes River, Feather River, Sacramento River), and portions of 6 others contain some well-protected lands (Stony Creek, Big Chico Creek, Butte Creek, Tuolumne River, Kaweah River, and San Joaquin River). The extent of protection and success as beetle habitat along the San Joaquin River is somewhat less than the others. Seven locations (Lower American River, Big Chico Creek, Putah Creek, Lower Stanislaus River, Kings River, Upper Stanislaus Hills, and portion of the Kaweah River upstream of Lake Isabella) are managed for natural and open space values, or are partially on city parks and Forest Service lands, where the land and management status protects against urban development, but with no specific protections for the beetle or elderberry shrubs in particular. The remaining locations or portions of the remaining locations are on lands without protections or are not known to have protections, some of which are private lands or designated floodways that may experience activities that affect elderberries (primarily through vegetation suppression from bank protection and vegetation removal on levees and within floodway channels). This includes (but is not limited to) some sections of the Sacramento River from Colusa to the American River confluence, portions of Big Chico and Butte Creeks, parts of the Feather, American, and Bear Rivers, Thomes Creek, Yuba River, former portions of Ulatis Creek (now a flood channel), Cache Creek, Upper Stanislaus Hills, the Calaveras River-Stockton Diverting Canal, Mokelumne-Bear Rivers, Merced River, Kings River, Tule River-Deer Creek, Kern River, and Caliente Creek.
Some locations (or portions thereof) on private lands throughout the Central Valley, despite lack of formal protections, are deemed less likely to be impacted due to the remote or rural
In the south Central Valley, the occupied locations immediately south of Sacramento to Stanislaus County have a good potential to support populations of valley elderberry longhorn beetles; however, there are limited protections for this existing habitat. For example, the Cosumnes River Preserve covers only a portion (perhaps 20 percent of its length) of the Cosumnes River, but beetle records and habitat are largely outside of the Preserve. Much of the riparian area along the Cosumnes, Mokelumne, and Stanislaus Rivers, which appears on aerial photos as intact riparian vegetation, is privately owned and to our knowledge does not have protection. Additionally, most locations in the southern portion of the subspecies' range (as compared to the north Central Valley) harbor fewer occurrences in general, and display lower quality riparian vegetation (both major rivers and tributaries, particularly on the valley floor). Therefore, persistence and conservation of the valley elderberry longhorn beetle in the central and especially the northern portion of its range may provide more consistent support of the subspecies as a whole, both currently and in the foreseeable future. The likelihood of persistence of the subspecies is considered fair, average, or good at all south Central Valley locations with the exception of three locations that are uncertain due to lower quality beetle habitat and absence of protections as compared to the north Central Valley. Additionally, in some south Central Valley areas where there is protected beetle habitat (Kings and San Joaquin Rivers), the subspecies has not been observed despite recent surveys.
Examples of protected lands in the southern Central Valley include about 5,500 ac (2,226 ha) of floodplain habitat suitable for the valley elderberry longhorn beetle in the Cosumnes River Preserve (Talley
The Service has developed conservation guidelines to promote restoration and protection of valley elderberry longhorn beetle habitat (USFWS 1996, 1999a). Subsequent to the development of these guidelines, proponents of projects resulting in authorized habitat loss often conduct habitat restoration for the valley elderberry longhorn beetle as an impact minimization measure (Service 1996 pp. 3, 4; Service 1999a, pp. 3, 4). Since the 1996 and revised 1999 guidelines were implemented, the number of restoration and protection actions for beetle habitat has dramatically increased. As described above under the “Agricultural and Urban Development” section, we reviewed Federal projects for which we conducted section 7 consultations for the beetle between 1983 and 2006. We determined that the total amount of incidental take authorized amounted to roughly 10,000 to 20,000 ac (4,047 to 8,094 ha) of riparian vegetation, with actual acres lost an unknown amount less due to projects that were not implemented, and thus, for which habitat loss did not occur (Talley
The habitat restoration and protection agreements established under the guidelines require planting and maintenance of roughly 3.5 new elderberry shoots on protected land for every elderberry stem 1 in. (2.5 cm) in diameter or greater that is removed (Talley
The degree of success of the conservation guidelines (as discussed above) has been difficult to measure because many of the required monitoring reports were unavailable to the Service and Talley
Valley elderberry longhorn beetle habitat has also been protected or restored through the provisions of section 10 of the Act. Habitat conservation plans prepared for the beetle to offset the effects of a project, through some combination of habitat restoration and protection transplanting of occupied elderberry shrubs to a protected location, are accompanied by
Five conservation banks containing protected beetle habitat have been authorized to sell credits for the beetle as needed for project impacts associated with either section 7 or 10 of the Act. These banks protect approximately 242 ac (98 ha) of existing, restored, or created habitat for the beetle in Placer, Shasta, San Joaquin, Sacramento, and Yolo Counties (Talley 2006a, p. 55). A sixth bank in Yolo County supports some elderberry shrubs, but is not authorized to sell credits for the beetle.
Since 1996, our conservation and mitigation guidelines under sections 7 and 10 of the Act have required project proponents to establish preserves and conservation easements for the valley elderberry longhorn beetle to minimize the impacts of projects that may incidentally take beetles (Service 1996, p. 6; Service 1999a, p. 6). These protected areas of habitat total approximately 642 to 1,900 ac (260 to 769 ha), which are in addition to areas that have been restored for the beetle, all of which is described in further detail under the “Current Estimate” section above.
Since the mid-1800s, riparian vegetation has been impacted throughout the Sacramento and San Joaquin Valleys as a result of agricultural and urban development, and associated flood control activities. At the time of listing, habitat loss was identified as one of the most significant threats to the valley elderberry longhorn beetle (45 FR 52805, August 8, 1980; Eng 1984, pp. 916–917). These impacts are expected to continue to affect the beetle as a result of some additional riparian vegetation (and specifically beetle habitat) loss across the subspecies' range. Cumulatively, this riparian vegetation loss and associated beetle habitat loss may limit the overall amount of beetle habitat, and in some cases cause the loss of connectivity between beetle locations. However, when examining the potential rangewide impacts across the subspecies' known current range that is now known to be greater in size than at the time of listing, we believe that those impacts are of a lower magnitude to the subspecies as a whole due to there being significantly more locations known today (26 locations), including protected areas, as compared to the level of impacts affecting the 3 locations known at the time of listing.
Agricultural and urban development (including activities that impact vegetation that grows along existing irrigation channels, levees, etc.) throughout much of the range of the valley elderberry longhorn beetle is likely to continue to have some effect on the subspecies and its habitat.
The flood protection system throughout the valley elderberry longhorn beetle's range is fairly extensive, impacting most of the rivers or creeks where beetle occurrences are known. Many dams or other flood protection facilities (such as levees) predate listing of the beetle, but require ongoing maintenance or improvements currently and into the future, such as improvement projects completed through the Corps. Construction and maintenance of these flood protection and associated reservoir flood control facilities have resulted in direct losses of riparian vegetation within project impact areas, and indirect impacts in surrounding riparian vegetation areas, due to agricultural and urban development resulting from flood protection.
Although ongoing and future maintenance of levees, channels, and other facilities will likely result in future losses of valley elderberry longhorn beetle habitat at some locations, these impacts are currently limited by interim protection measures. The Corps has established a procedure for seeking a variance from the ETL (which can result in vegetation-free zones within riparian areas when implemented). Variances may be issued to provide opportunities for beetle habitat to remain. Also, the
The Recovery Plan for the valley elderberry longhorn beetle, section 7 biological opinions, and research results have identified road or trail maintenance, and potentially dust, as threats capable of lowering the quality of valley elderberry longhorn beetle habitat (Service 1984, p. 41; Service 2002, p. 3; Huxel
Although an unknown amount of habitat for the valley elderberry longhorn beetle has been lost since the time of listing, we now know that the range of the beetle is larger than was previously known. About 21,536 ac (8,715 ha) of lands containing riparian vegetation have been preserved, enhanced, or restored by many agencies and organizations across the subspecies' current range. This is a fraction of the roughly 132,586 ac (53,656 ha) of riparian vegetation (not necessarily all containing elderberry shrubs) estimated to remain in the Central Valley in 2003 (our most recent estimate) (Geographic Information Center 2003, p. 14). These estimates include approximately 18,000 ac (7,284 ha) of Central Valley Joint Venture conservation easements, approximately 13,000 ac (5,261 ha) of restoration lands predominantly on Federal and State areas, and approximately 12,400 ac (5,018 ha) of lands with elderberry plantings (the latter of which partially overlaps restoration lands, such as mitigation banks, and excludes approximately 1,600 ac (648 ha) that has not yet been planted). We note that each of these estimates should be interpreted with caution; only a portion of these conservation easements or restoration lands actually support riparian vegetation that could contain elderberry, or are dedicated specifically to elderberry plantings.
Habitat and valley elderberry longhorn beetle protection measures are also associated with section 7 consultations and mitigation occurring as a result of section 10 habitat conservation plans. Since the 1996 and revised 1999 guidelines were implemented, the number of restoration and protection actions that have occurred to benefit the beetle have dramatically increased. To date, project proponents have restored and protected (through conservation easements in perpetuity) approximately 642 to 1,900 ac (260 to 769 ha) of beetle habitat.
Finally, another large protected riparian area that provides habitat for the beetle is the 4,600-ac (1,862-ha) American River Parkway (Parkway) in Sacramento County, which includes important habitat for the beetle, part of which was designated critical habitat (45 FR 52803; August 8, 1980) (see
There is uncertainty as to the effect of climate change on precipitation and the severity, duration, or periodicity of drought in the Central Valley. The impact of climate change on the valley elderberry longhorn beetle will depend on many factors, including how the subspecies and its habitat respond to such change. We are not aware of information that would allow us to make a meaningful prediction that potential changes in temperature and precipitation patterns would significantly affect elderberry growth.
Overall, we consider the current and future impacts of habitat loss on the valley elderberry longhorn beetle to be different today than at the time of listing. There are a greater number of locations within the range of the subspecies (26 locations) known now compared to the time of listing (3 locations), and there have been conservation actions and protections at portions of those additional locations. Of the 26 known locations, all or portions of 10 are on State or Federal wildlife areas or other areas under conservation easement, and all or portions of 6 are partially on city parks or Forest Service lands, where the particular threat of habitat loss is reduced, but other threats from human use remain. All or portions of 7 other locations throughout the Central Valley include private lands where (despite lack of formal protections) threats are presently reduced due to their remote or rural nature, or due to topography that limits the more pervasive threats of agricultural and urban development. The majority of locations contain some lands without protections, some of which are private or designated as floodways that could experience activities that affect beetle habitat. These unprotected locations encompass most of the range of the subspecies, including riparian zones in major drainages. Therefore, we conclude that agricultural and urban development, levees, and flood control protection remain threats to the valley elderberry longhorn beetle now, and likely into the future, although these threats are not considered significant when taken within the context of the increased number of occurrences known today as compared to the time of listing.
Collecting all species of longhorn beetles is popular among amateur entomologists. However, we are not aware of any evidence that commercial use or private trade of the valley elderberry longhorn beetle has been, or is, a threat. We did not identify collecting or overutilization for any purpose as a threat to the beetle in the final listing rule or the Recovery Plan. Therefore, based on our review of the available scientific and commercial information, overutilization for any purpose is not currently considered a threat, and is not anticipated to emerge as a threat in the future.
At the time of listing in 1980, we did not consider disease or predation as significant threats to the valley elderberry longhorn beetle. Given the available scientific and commercial information on the beetle, disease is not considered a threat. Since listing, however, several insect predators have been identified as potential threats to the beetle.
The invasive, nonnative Argentine ant (
The Argentine ant requires moisture, and may thrive in riparian or irrigated areas (Holway and Suarez 2006, p. 321). A negative association between the presence of the ant and valley elderberry longhorn beetle exit holes was observed along Putah Creek in Yolo and Solano Counties in 1997, causing the author to conclude that the spread of Argentine ants along permanent streams would likely have a significant impact on the long-term persistence of the beetle (Huxel 2000, pp. 83–84). Although Huxel's (2000) survey did not distinguish whether the observed negative association is due to direct effects of the ant on the beetle, or simply a result of different habitat preferences between the two species, a follow-up study (Klasson
A recently submitted preliminary report for a survey conducted 12 years after the survey reported by Huxel (2000) found that the valley elderberry longhorn beetle does continue to occupy at least three of six locations along Putah Creek (Holyoak and Graves 2010, p. 23). The same preliminary report suggests that the average number of recent beetle exit holes per elderberry shrub is lower for shrubs with Argentine ants (Holyoak and Graves 2010, p. 17). The authors did not conclude that this apparent difference was statistically significant, however, and noted that because the beetle is found at such low densities, sampling must be extensive to statistically confirm population declines as serious as 50 percent or higher (Holyoak and Graves 2010, p. 20). The study found Argentine ants to be present on 13 percent of shrubs overall, and present in 7 of 10 watersheds sampled from across the range of the beetle (Putah Creek, and American, Feather, Sacramento, Merced, Stanislaus, and Tule Rivers; Holyoak and Graves 2010, p. 16). This aggressive ant may potentially interfere with adult mating or feeding behavior, or prey on larvae (Way
Invasive ants, including the argentine ants specifically, can cause severe ecological impacts, including documented threats to many other listed invertebrate species in the United States (Wagner and van Driesche 2010, p. 555). It is possible that the lack of demonstrated predation impact on the valley elderberry longhorn beetle could be due to small sample size, and similar
The European earwig (
The valley elderberry longhorn beetle is also likely prey of insectivorous birds. One study noted holes in elderberry stems created by foraging birds at nearly every site where beetle exit holes were found, suggesting that birds had been excavating holes to forage for beetle larvae in the pith (Lang
We have no information to indicate that the valley elderberry longhorn beetle is threatened by disease. The best available information indicates birds, lizards, European earwigs, and Argentine ants are potential predators of the valley elderberry longhorn beetle. Although predation likely causes some mortality of individual eggs, larvae, or adult beetles, we have no data that support the premise that predation is adversely affecting the subspecies as a whole. Beetles have coexisted with Argentine ants at Putah Creek and the American River Parkway for over 10 years (Huxel 2000, p. 82; Holyoak and Graves 2010, pp. 16, 17, 30), although possibly not without some decrease in average adult beetle population size, as measured by recent exit holes (Holyoak and Graves 2010, p. 17). The question of the extent to which predation by Argentine ants could be lowering adult beetle populations is potentially important because Argentine ants have been found in 7 of the 26 beetle locations, but existing evidence suggests that ants need to be present above some as yet unknown density threshold. Based on review of the best available scientific and commercial information, we do not consider disease or predation to be of such significance that it could threaten the continued existence of the beetle currently or in the future.
State and Federal laws provide some degree of protection for riparian vegetation and valley elderberry longhorn beetles, as discussed below. We did not research the extent to which county or city ordinances or regulations provide direct protection for the beetle, although the subspecies may benefit from some city and county open space designations that harbor beetle habitat. The beetle may also benefit from local impact minimization or mitigation plans for special status species that have been developed as part of city or county general plans. Conversely, other types of local zoning or changes in open space designations in the future could affect the beetle. For the purposes of this discussion, we assume that there are no local laws that provide protection for the subspecies.
The California Endangered Species Act (CESA) does not provide protection to insects (sections 2062, 2067, and 2068, California Fish and Game Code). The Swainson's hawk (
The California Environmental Quality Act (CEQA) requires review of any project that is undertaken, funded, or permitted by the State or a local governmental agency. If significant effects are identified, the lead agency has the option of requiring mitigation through changes in the project or deciding that overriding considerations make mitigation infeasible (CEQA Sec. 21002). In the latter case, projects may be approved that cause significant environmental damage, such as destruction of wildlife species or their habitat. Species protection, including the valley elderberry longhorn beetle, through CEQA is therefore dependent upon the discretion of the lead agency.
Section 1600 of the California Fish and Game Code authorizes CDFG to regulate streambed alteration. CDFG must be notified of, and approve, any work that substantially diverts, alters, or obstructs the natural flow or substantially changes the bed, channel, or banks of any river, stream, or lake. If an existing fish or wildlife resource could be substantially adversely affected by a project, CDFG must provide the project applicant with a draft agreement within 60 days to protect the species (section 1602 of the California Fish and Game Code). However, if CDFG does not submit such a draft agreement within the required time, the applicant may proceed with the work. Mitigation under a streambed alteration agreement is entirely voluntary by a project applicant; thus, such agreements are typically only provided to applicants when the mitigation activities they identify are compatible with other mitigation activities required by another type of permit.
Section 815 of the California Civil Code establishes conservation easements as enforceable and perpetual interests in real property for purposes of retaining land in its natural state (Cal Civ Code, sections 815–815.3). Conservation easements can only be held by nonprofit environmental organizations, State or local governmental entities, or Native American tribes (Cal Civ Code, section 815.3). Conservation easements have been used to protect land for the beetle in mitigation banks and under the terms of permits granted under sections 7 and 10 of the Act. Although sections 7 and
The National Environmental Policy Act (NEPA; 42 U.S.C. 4321
Under section 404 of the Clean Water Act (CWA; 33 U.S.C. 1251
The National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105–57) establishes the protection of biodiversity as the primary purpose of the Service's National Wildlife Refuge System. This legislation lends support to various management actions to benefit the valley elderberry longhorn beetle in refuges in the Sacramento and San Joaquin Valleys, as discussed under Factor A (see “Conservation—Habitat Restoration and Protection” above). The Sacramento River NWR was established to conserve and manage up to 18,000 ac (7,284 ha) of riparian or floodplain vegetation from Red Bluff to Colusa in Tehama, Glenn, and Colusa Counties. The Sacramento River NWR CCP identifies conservation of the beetle as one of its management goals (Service 2005, pp. 1–37). CCPs for the San Luis and Merced National Wildlife Refuges are not yet complete. The CCP for the San Joaquin River NWR calls for surveys for the beetle, but does not call for a management plan unless “deemed necessary” (Service 2006b, p. 64); however, the refuge is proceeding with conservation efforts for the beetle, as discussed under the Factor A, “Conservation—Habitat Restoration and Protection” above. We expect conservation efforts being developed by National Wildlife Refuges in the Sacramento and San Joaquin Valley to continue to assist in conservation of the beetle.
The Federal Government administers a variety of programs involving grants and loans through the Natural Resources Conservation Service (NRCS) and the Service for the express purpose of promoting habitat enhancement. Some of the actions within these programs could potentially benefit the valley elderberry longhorn beetle.
The Service's Partners for Fish and Wildlife (PFW) Program works directly with private landowners to restore and enhance habitat for federally listed species on their lands through the use of small grants. However, private landowners contacted by the Service have expressed a preference not to have elderberry shrubs planted on their property (in spite of the value these shrubs provide for birds and other wildlife) due to a fear of restrictive regulations and impacts to their economic livelihood. NRCS reports that 22 of 210 easements held under its Wetland Reserve and Emergency Watershed Protection Programs support elderberries (NRCS 2011, p. 1). NRCS (2011, p. 2) indicates that elderberry plantings in its Hedgerow Planting Program are restricted to San Joaquin and Yolo Counties where safe harbor agreements are in place. Based on responses from landowners, NRCS believes that more elderberries would be planted on easements if the valley elderberry longhorn beetle were delisted. The extent that such plantings have contributed to beetle recovery could not be assessed because no spatial data or other information are available for us to assess.
If the valley elderberry longhorn beetle is delisted as a threatened species under the Act and removed from the List of Endangered and Threatened Wildlife, the greatest impact to the beetle would be loss of the protections provided by sections 4(d) and 7(a)(2) of the Act. Under regulations established under the authority of section 4(d), the Service has prohibited the take of the beetle (50 CFR 17.31(a)). Section 7(a)(2) of the Act requires all Federal agencies to insure that any action that it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any listed species or cause the destruction or adverse modification of designated critical habitat. No other Federal or State law explicitly protects the beetle or its habitat. The Clean Water Act and National Environmental Policy Act may continue to provide incidental benefits to the beetle when riparian vegetation is impacted, but mitigation can meet the requirements of these laws without necessarily benefitting the beetle. State laws such as CESA and CEQA may continue to provide incidental protection as described above should the beetle be delisted. On the other hand, private landowners throughout the range of the beetle who participate in Federal or State riparian and other vegetation enhancement programs may be more inclined to plant elderberries on their properties.
As discussed above (Factor A), there are a number of ongoing and projected flood control actions, and vegetative maintenance of the existing flood control system, that may continue to affect valley elderberry longhorn beetle habitat, and hence the subspecies, if the beetle is removed from the List of Endangered and Threatened Wildlife. However, this relative lack of regulatory protection should be judged in light of the remaining presence of this threat.
Absent continued protection of the valley elderberry longhorn beetle under the Act, long-term protection would be most certain in areas where the subspecies currently receives some form of protection. As discussed above (see
The final rule to list the valley elderberry longhorn beetle did not include any threats under Factor E. Since listing, we have learned that the following other factors may impact the valley elderberry longhorn beetle: climate change, pesticides, human uses other than those discussed under Factor B, small population size, and loss of beetle populations due to habitat fragmentation, which is a synergistic threat when combined with small population size (and thus a Factor E threat discussed in this section).
Climate change could affect the valley elderberry longhorn beetle in other ways besides the amount and distribution of habitat (see Factor A discussion on climate change above). Changes in temperature and precipitation patterns may cause shifts in the timing of elderberry flowering relative to beetle emergence, or affect the relationship of the host plant species or beetle subspecies in other ways. Talley
Since listing, we have learned that many pesticides are commonly used within the valley elderberry longhorn beetle's range. These pesticides include insecticides (most of which are broad-spectrum and likely toxic to the beetle) and herbicides (which may harm or kill its elderberry host plants). The California Department of Pesticide Regulation (CDPR) in 1997 listed 239 pesticide active ingredients applied in proximity to locations of the beetle (Marovich and Kishaba 1997, pp. 270–275). Four of the five California Counties (Fresno, Kern, Tulare, and Madera) that have the greatest pesticide use in California are in the San Joaquin Valley (CDPR 2010, p. 1), where approximately 33 percent of beetle occurrences are documented (CNDDB 2010, pp. 1–201). Many pesticide applications likely coincide with the period when adult beetles are active, and when the beetle eggs and early larval stages occur (Talley
Although no major issues relating to drift from agricultural pesticides have been documented for riparian vegetation in general (Spotts 1989, p. 524), Barr (1991, p. 40, and citing Jones & Stokes 1987) noted yellowing of plants adjacent to cultivated fields along Middle River in San Joaquin County, and direct loss of elderberry from herbicides on the Cosumnes River. No sign of the valley elderberry longhorn beetle was observed near Middle River in 1991, although exit holes and an adult had been noted in 1984–1985 (Barr 1991, p. 27). Additionally, pesticide or herbicide use was specifically noted as a threat in 25 of 201 CNDDB records (CNDDB 2010, pp. 12, 33, 46, 86–87, 110, 114, 116, 121, 155–158, 160–165, 169, 173–174, 192–193, 195). Judging from the distribution of pesticide-affected locations identified in the CNDDB, this threat can be considered widespread, rather than localized. In most cases, however, the CNDDB notes appear to qualify the pesticide threat as one related to proximity to agricultural operations (a notable exception is CNDDB occurrence number 16, whose notes state, “Many plants * * * were dead (herbicides) * * *.” CNDDB 2010, p. 12). The sensitivity of valley elderberry longhorn beetles or its host plant to agricultural pesticides, and overall effect, is uncertain.
We consult with agencies on the potential effects of some pesticides on the valley elderberry longhorn beetle in the context of several national-level evaluations of pesticide effects on endangered and threatened species. For example, in 1999, the U.S. Environmental Protection Agency (EPA) entered into a section 7 consultation with the Service on the registration of 15 pesticides. In this consultation, the Sacramento Fish and Wildlife Office provided a memorandum to the Service's Region 1 Office in Portland, Oregon, regarding the use of these pesticides (Service 1999b). Our 5-year review mischaracterized the consultation (Service 2006a, p. 18), stating that a draft jeopardy opinion was prepared; however, the consultation was never completed and no jeopardy opinion was issued. In the memorandum, the Sacramento Fish and Wildlife Office provided its rationale for determining that the registration of 7 of the 15 pesticides, and their subsequent use as proposed by product labeling, would likely result in jeopardy to the beetle (Service 1999b). Service biologists noted that the primary threat to the beetle was the loss and alteration of habitat, but also noted that insecticide use and vegetation control in agricultural areas and along rights-of-way may be factors that could limit the beetle's abundance and distribution, although no data were available to allow an evaluation of potential effects (Service 1999b, pp. 77–83). Service biologists based their rationale for the draft jeopardy determinations on the beetle's small population status and the small, scattered habitat sites known at the time (Service 1999b, pp. 80–83).
Although several of the seven pesticides are still widely used in the Central Valley, the registered use of two of the seven pesticides (Bendiocarb and Fenthion) has been revoked by the EPA and the State of California (Kegley
Based on the information presented above, there is potential for agricultural pesticides to impact the valley elderberry longhorn beetle through drift in both the northern and southern Central Valley. However, the concerns expressed above were never confirmed by the Service in a final biological opinion and we otherwise lack any information confirming that pesticide use constitutes a significant threat to the subspecies.
A number of the major occurrences of the valley elderberry longhorn beetle (such as American and Sacramento Rivers, Putah Creek, and the Feather, Stanislaus, and Kern Rivers) occur at least partially on publicly accessible areas that are subject to intended and unintended human uses, including biking (on and off-road), hiking, horseback riding, associated formal and informal trails, maintenance of such trails, camping (legal and illegal), pruning of trees (Barr 1991, pp. 40, 90–91), cutting of firewood generally, and related effects such as fires, which continue today. On September 15, 2011, for example, nine arson fires were set between River Bend and Hagan Parks in the American River Parkway. Alone or in combination with other threats, and depending on severity, these activities can, and do, kill elderberries or reduce their health (Barr 1991, pp. 40, 27, 31, 32, 92). In some cases, evidence of fire corresponds to negative surveys of beetles where they formerly occurred (such as the Merced River) (Barr 1991, p. 31). Evidence of fire is also mentioned in four CNDDB records (CNDDB 2010, pp. 70, 86, 115, 202), where it appears to be associated—in some cases—with proximity to roads and a greater perceived risk of fire associated with traffic or roadside mowing. Pruning is identified in five CNDDB records (CNDDB 2010, pp. 2, 12, 67, 99, 174), and several records identify maintenance around bike and equestrian trails (CNDDB, pp. 121, 195). Overall, Barr (1991, p. 40) found that 38 out of 230 sites showed some damage from fire or cutting.
All intended and unintended human use effects may result in incremental losses or reduction in the amount or quality of valley elderberry longhorn beetle habitat. While evidence exists of sporadic and localized impacts to elderberry bushes from human uses, such as the arsons described above, we are not aware of similar reoccurring impacts throughout the beetle's range. Thus, based on review of the best available scientific and commercial information, we do not expect losses associated with human use to be of such significance that they could threaten the continued existence of the beetle currently or in the future.
Small population numbers of valley elderberry longhorn beetle host plants, and even lower numbers of occupied host plants, constitute a threat to the beetle at many locations, which, in turn, may result in small beetle population sizes. However, this potential threat can be true for many species. Additionally, Talley
Although we do not have data from which to draw conclusions regarding the rangewide valley elderberry longhorn beetle population size, we nonetheless considered whether rarity poses a potential threat to the subspecies. While small populations are generally at greater risk of extirpation from normal population fluctuations due to impacts such as predation, disease, changing food supply, and stochastic (random) events such as fire, corroborating information regarding threats beyond rarity is needed to meet the information threshold indicating that the beetle is endangered or threatened. Many species are naturally rare and in the absence of information identifying threats to the species and linking those threats to the rarity of the species, the Service does not consider rarity alone to be a threat. Further, a species that continues to survive could be well-equipped to continue to exist into the future even if it has always had small population sizes, has always been rare, or has always been patchily distributed (as is the case for the valley elderberry longhorn beetle).
Many naturally rare species have persisted for long periods within small geographic areas, and many naturally rare species exhibit traits that allow them to persist despite their small population sizes. Consequently, the fact that a species is rare or has small populations does not necessarily indicate that it may be in danger of extinction now or in the future. We need to consider specific potential threats that might be exacerbated by rarity or small population size (or patchy distribution such as with the valley elderberry longhorn beetle). Although low genetic variability and reduced fitness from inbreeding could occur, at this time we have no evidence of such genetic problems with the valley elderberry longhorn beetle.
Based on our review of valley elderberry longhorn beetle occurrence records compared to aerial imagery and other documentation, small population size may potentially be the result of one or more threats (as evidenced by data showing that some locations may have experienced loss of elderberry shrubs over time). Small populations in general are particularly susceptible to extirpation as a result of localized stochastic events or local exposure to threats already discussed. Several records at the Sacramento River, Colusa to American River confluence, American River Confluence south to Delta, Bear River near Mokelumne, Calaveras River-Stockton Diverting Canal near Linden locations were associated with a few isolated elderberry plants or groups of plants that appear to have been completely lost since last observation or nearly so (i.e., since listing), and currently lack protections or enhancement measures that would allow regeneration or restore habitat (comparison of Service database described in the Finding section below and Barr (1991, pp. 24, 27, 29)). Other areas with elderberries lack beetles (see “Population Status and Trends” above). Talley
As indicated under the “Population Status and Trends” section above, local valley elderberry longhorn beetle populations are subject to extirpation and subsequent recolonization, but recolonization is only likely if there are occupied areas within about 25 mi (40 km) from which colonizers can migrate (Collinge
At this time, we are unaware of any information that would support robust conclusions regarding the extent to which local beetle populations may become isolated from each other by distances of greater than 25 mi (40 km). We know that there are already discontinuities of more than this distance between some populations, especially in the south Central Valley, as well as within major corridors. We suspect that potential habitat fragmentation, in combination with small population size (discussed above), results in a greater combined threat of local extirpation in the south Central Valley. However, we have not censused all potential habitat in tributaries or uplands that may harbor the subspecies; additional populations not yet detected could increase the potential for recolonization.
It is possible that some level of threat from fragmentation and small population size (though we are uncertain of natural valley elderberry longhorn beetle population numbers) could have always existed. Nevertheless, our evaluation of the best available scientific and commercial information indicate that fragmentation remains as a threat today, and may increase in the future. However, we note that our 1980 estimates of the beetle's range were underestimates. Given our knowledge today, the level of threat posed by fragmentation is much reduced.
Since listing, potential Factor E threats that could affect the valley elderberry longhorn beetle include climate change, pesticides, human use, loss of beetle populations due to habitat fragmentation, and small population size.
Climate change might affect the valley elderberry longhorn beetle through effects other than habitat distribution, such as shifts in the timing of elderberry flowering relative to beetle emergence, or impacts to the relationship of the listed and common beetle subspecies in some other way. Based on the best available scientific and commercial information at this time and absent any confirming information, we conclude that climate change is not a significant factor affecting the persistence of the valley elderberry longhorn beetle.
The valley elderberry longhorn beetle has been reported from locations adjacent to agriculture where pesticide application occurs. Information from occurrence records and other sources indicate that drift of pesticides into beetle habitat is of concern. However, we have no information regarding exposure of the beetle to specific pesticides or potential impacts to beetle populations from exposure. Although some effects of pesticides on elderberry shrubs have been noted, no link has been established between persistence or occurrence of the beetle and adjacency to farmed lands that use pesticides.
Some valley elderberry longhorn beetle occurrences are at least partially on publicly accessible areas that are subject to intended and unintended human uses, the impacts of which could result in incremental losses or reduction in the amount or quality of beetle habitat. However, available information indicates losses would likely not be frequent; thus, significant losses are not expected. There is also evidence of a variety of human use impacts involving trails, cutting, pruning, and fire in occupied beetle locations.
Based on review of occurrence records compared to aerial imagery and other documentation, loss of valley elderberry longhorn beetle populations due to fragmentation (which alone, or in combination with, other threats has the potential to result in small population size) remains a threat currently and potentially into the future. However, small population size is not considered a significant current or future threat, and the threat of fragmentation is not considered significant when taken within the context of the increased number of occurrences known today as compared to the time of listing. Additionally, we are unaware of any information that would support robust conclusions regarding frequent isolations of beetle populations across the subspecies' range, the extent to which local beetle populations may become isolated from each other by distances of greater than 25 mi (40 km), or whether any potential threats might be exacerbated by characteristics such as rarity or patchy distribution.
We have carefully assessed the best scientific and commercial data available regarding the past, present, and future threats faced by the valley elderberry longhorn beetle. As required by the Act, we considered the five potential threat factors to assess whether the beetle is endangered or threatened throughout all or a significant portion of its range. When considering the listing status of a species, the first step in the analysis is to determine whether it is in danger of extinction throughout all of its range. If this is the case, then the species is listed in its entirety. For instance, if the threats to a species are acting only on a portion of its range, but they are at such a large scale that they place the entire species in danger of extinction, we would continue to list the entire species.
When the valley elderberry longhorn beetle was listed in 1980, it was known from only the American River, Putah Creek, and the Merced River in the Central Valley of California. Its two primary threats were loss of habitat (Factor A) and inadequate regulatory mechanisms protecting the beetle (Factor D). Compared to the three locations known to support the beetle at the time of listing, surveys have identified at least 26 locations that support the beetle from Shasta County to Kern County (CNDDB 2010, pp. 1–202; Table 1). This represents a significant increase of occurrences and a significant change in our understanding of the subspecies' range as compared to the time of listing.
As first introduced and described above in the Summary of Factors Affecting the Species section, in order to examine the scale of threats and potential for extinction for the valley elderberry longhorn beetle within these locations and as a whole, we first
Aerial imagery was used to generally assess quality of habitat and proximity to disturbances or other threats (width, extent and continuity of riparian areas, disturbances such as trails and roads). We also considered GIS database entries and other literature descriptions on the size, number, and distribution of elderberry shrubs; trends over time; and other site-specific factors (see Table 2). Location specific threats are identified for the five-factors where appropriate or otherwise noted as pervasive threats that apply to all locations. Protections (conservation) and recovery actions we considered include known actions, the extent of assurance that those actions would be implemented and, where available, the documented effectiveness or failure of those recovery actions.
As presented in Table 2 below (Prospectus for Persistence with Delisting column), we did not formulate quantifiable measurable objectives for our determinations of persistence. Rather, the suite of information was considered together and given a qualitative persistence determination of poor, fair, average, good, or best. Several determinations were deemed questionable due to high levels of data uncertainty and are noted as such (uncertain); these are to be considered a best-case scenario for the purpose of this analysis. Occupation records were considered in terms of number and constancy over time, with greater likelihood where such records were consistent, recent, regular, and of more certain species identification (Table 1). Species presence and persistence were considered less certain where species records and habitat surveys were older, and where elevations were higher (where the valley elderberry longhorn beetle and the nonlisted California elderberry longhorn beetle subspecies overlap) and there was no adult male specimen to confirm identity.
The potential for valley elderberry longhorn beetle persistence varies among the 26 locations and especially between the north and south Central Valley. The following paragraphs provide a summary rangewide evaluation of the beetle and its habitat based on the five-factor analysis presented above.
The north Central Valley has seven major locations, or portions thereof, where the beetle's persistence in the foreseeable future is likely due to a combination of: (1) Low threats and adequate protection measures; and (2) multiple and recent records, some with confirmation of adult beetles (Sacramento River north of Colusa, the lower American, Feather, and Bear Rivers, and Big Chico, Cache, and Putah Creeks). The protection measures include an array of existing and initially restored beetle habitat, and many have a wide or relatively unchanged riparian vegetation corridor with limited adjacent land-use, suggesting development or agriculture-related threats to these locations are reduced. Two additional locations in the north Central Valley were also deemed likely to persist, although both are smaller, and there is more uncertainty with respect to presence and threat due to the age of records, recent development, or uncertainties about threats and the need for protections (Butte Creek, Ulatis-Green Valley Creeks).
Even in these north Central Valley locations where valley elderberry longhorn beetle persistence is most likely, the extent of elderberry shrubs has not yet been fully quantified nor consistently monitored. Threats, and the likelihood of valley elderberry longhorn beetle persistence, vary markedly along the Sacramento River. Threats are minimal and beetle persistence is considered at least average north of Colusa to Redding, where there is protected habitat on refuge lands and reports of beetle occupation (River Partners 2004a). Threats are increased and beetle persistence is considered fair to poor on the Sacramento River south of Colusa to its Delta confluence; most of this area has no woody vegetation of any kind due to extensive rock bank protection. As shown by confirmed adult male specimens (Table 1, location 1.e), a remnant population of the beetle persisted on the Sacramento River near West Sacramento until recently, when the remaining habitat was lost at the expense of recent flood control improvements. With the possible exceptions of the lower American River, the best known location of the beetle, every other location (including portions of locations in which we have deemed the beetle likely to persist) in the valley proper (the valley floor of the Sacramento and San Joaquin Valleys combined) has a major section lacking riparian vegetation that almost certainly does not support the beetle due to complete absence of habitat in that section (Table 2).
Finally, there are no systems in the north Central Valley that are completely free of threats. In the American River and Putah Creek, for example, there are no, or limited, threats associated with development and agriculture; however, these areas continue to be subject to human use threats. There are management plans for the American River and Putah Creek locations (systems) that appear to be protected in their current ownership; however, the legal assurances for this protection and funding for implementation in perpetuity are unknown. Virtually all major rivers and tributaries in the Central Valley (both north and south) are subject to some level of effect from flood control operations and vegetative maintenance that affects or suppresses riparian vegetation (and associated beetle habitat if present), although this effect varies among locations and reaches within a location.
In the south Central Valley, the locations considered to have a good or average potential for persistence of valley elderberry beetle populations are those immediately south of Sacramento to about Stanislaus County (Cosumnes-Laguna-Dry Creeks, Mokelumne-Bear Rivers, lower Stanislaus River, Upper Stanislaus hills). However, the protections of existing riparian vegetation (including beetle habitat) are not well known for many of these riparian corridors. The Cosumnes River Preserve mentioned elsewhere in this rule covers only a portion of the Cosumnes River (perhaps 20 percent of its length), yet beetle records and habitat are largely outside the Preserve. Much
None of the other locations in the south Central Valley appear to have a good likelihood of beetle persistence (Table 2). This is because of the age of records, in combination with:
(1) Significant habitat loss (such as Kaweah, Merced, Tule, and Kern Rivers) since listing;
(2) Recent negative surveys (such as Kings River—Holyoak and Graves 2010, p. 8; San Joaquin River reaches 1B through 6—Kucera
(3) Low occupancy (Stanislaus River; Holyoak and Graves 2010 p. 7, River Partners 2007, p. 10);
(4) Absence of recent information (Calaveras River; exit hole last seen in 2000; adult in 1984) since listing;
(5) Limited overall riparian vegetation (most locations, especially lower rivers, which tend to be devoid of any woody vegetation); or
(6) Lack of protections or habitat quantification (most sites, except for San Luis NWR) (for additional location-specific rationales, see Table 2). Where there is habitat—often in higher elevations—there is a lack of positive subspecies identification via sightings of adult male specimens where the two subspecies likely overlap (higher elevation sites, such as Caliente Creek, upper American River vicinity, Kaweah River upstream of Lake Isabella). Even for the Stanislaus Hills location, which is a location that we presume the beetle persists, we have not been able to verify the identity of the adult sighting for this proposed rule.
According to Table 2, a prospectus for persistence that is considered poor, fair, average, or good (as compared to best) does not mean that the valley elderberry longhorn beetle is likely to be extirpated from the south Central Valley without continued protections of the Act. In those instances, a lower than best prospectus is usually due to the diminished condition of the riparian corridor, higher magnitude of threat, lack of known protections, and lack of recent habitat or species information. Overall, there is not a significant difference in the prospects for persistence from north to south, with 88 percent of locations in the north having the prospect of fair, average, good, or best, and 77 percent of locations in the south habitat a prospect of fair, average, or good.
As a whole, the south Central Valley (as compared to the north Central Valley) exhibits reduced valley elderberry longhorn beetle presence, density, and quality of riparian vegetation on major rivers and tributaries, and largely channelized and devegetated tributaries, particularly on the valley floor. These characteristics may at least partially explain why the beetle occurrences are rarer in the south as compared to the northern portion of its range.
Accordingly, we believe the valley elderberry longhorn beetle populations in most areas in the south Central Valley are likely to be small and subject to occasional episodes of extirpation. Whether or not recolonization occurs would depend on proximity to other beetle populations within dispersal distance, which would be those in foothill habitats above and between the major reservoirs. Due to the lack of adult male specimens (or verification where such records exist) from these foothill areas, it is not known whether these foothill populations are the federally threatened valley elderberry longhorn beetle or the more common California elderberry longhorn beetle. However, the valley elderberry longhorn beetle's long-term persistence in the south Central Valley depends not only on recolonization from the nearest beetle population within dispersal distance, but also on the presence of habitat and protection of habitat from threats. In general, the amount of riparian vegetation and associated beetle habitat in the south Central Valley, particularly the valley floor, is much more limited than in the north, and habitat protections are largely unknown for most known beetle locations (Table 2).
Rangewide, we believe that valley elderberry beetle populations at 13 locations (or portions of these locations) have an average or better likelihood of persistence after delisting (9 in the Sacramento Valley; 4 in the San Joaquin Valley). The remaining 13 populations (4 in the Sacramento Valley; 9 in the San Joaquin Valley) are less likely to persist (deemed fair-to-poor, some currently declining, with many of questionable current existence due to age of records, elevation and absence of confirming adult specimens, or apparent complete loss of habitat; see Table 2). Some of the locations in both the Sacramento and San Joaquin Valleys, where persistence is deemed likely in portions of the location (such as Sacramento River, Redding to Colusa), also have been determined to have major sections where persistence is unlikely due to habitat loss since listing or last observation of the beetle (such as Sacramento River, Colusa to American River and south to Delta; see Table 2 for other examples).
The uncertainties identified in this analysis can only be resolved through additional study. Valley elderberry longhorn beetle occurrence data (based on the CNDDB data available) have some amount uncertainty due to:
(1) The difficulty in verifying the species (because it spends most of its life
(2) The age of records (largely 1991 and earlier) and limited current and frequent surveys;
(3) The fact that some records that were based on exit holes occurred at higher elevations, which—in the absence of adult specimens—could also be the unlisted subspecies;
(4) The complete loss of elderberry shrubs from some of the 26 locations during the period since observations were recorded;
(5) In some of the 26 locations during the period since observations were made, more recent surveys did not find the beetle where elderberries still persist; and
(6) Detection is limited at locations with low or naturally low beetle population sizes. More data, over a longer time period, would improve our confidence in persistence determinations for locations with small population sizes.
Similarly, there is uncertainty as to the effectiveness of recent restoration efforts. Although approximately 21,536 ac (8,715 ha) of riparian vegetation have been protected through purchase or conservation easement, the proportion of this protected habitat that consists of elderberry shrubs, or would support elderberry, is unclear (i.e., beyond the 4,000 ac (1,619 ha) of existing plantings). Similarly, we still lack comprehensive information on the general effectiveness of habitat restoration and protection efforts, especially since the existing elderberry plantings are relatively recent and much is unoccupied. Even where plantings have resulted in beetle occupation, the rate of occupation varies (less than 0.1
There is also uncertainty as it relates to the actual amount of riparian vegetation (or other upland vegetation type) within the valley elderberry longhorn beetle's range that can support elderberry and, potentially, the beetle. As presented above, only a portion of protected land is riparian, and only some supports (or has characteristics to support) elderberry. Central Valley-wide, about 1 million ac (404,686 ha) of riparian vegetation have been lost since the turn of the century, and about 132,000 ac (53,418 ha) of that has been relatively recent (since 1960) (Geographic Information Center 2003). Based on our evaluation of available information for this analysis, we determined that of the approximately 132,000 ac (53,418 ha) of riparian vegetation left, a small portion of which is protected (21,536 ac (8,715 ha)), and a subset of this amount is actually elderberry (at most 5,000 to 7,000 ac (2,023 to 2,833 ha), but likely less). Admittedly, elderberries do occur outside of true riparian vegetation, and both riparian and nonriparian vegetation may support the beetle in its range outside the Central Valley proper. However, the extent of the beetle in these other areas (i.e., uplands in the Central Valley, foothills outside the Central Valley) would require more study involving adult male collection and identification to resolve with certainty. Even if there were significant numbers of elderberry shrubs outside of riparian systems, the extent to which these are used by beetle compared to riparian systems, and the extent to which these would offset shrub losses within riparian areas, has not been ascertained. Since listing, the rate of loss of riparian vegetation has slowed compared to historical times.
Most valley elderberry longhorn beetle habitat, occurrences, and locations are outside of the 21,536 ac (8,715 ha) of protected habitat, and have no (or no known) protections. The restoration efforts and protected habitat are largely concentrated on refuge lands, which are a minority of the current range of the valley elderberry longhorn beetle. Of the 23 beetle locations discovered since listing, 12 include habitat that is unprotected or whose protections are unknown. Resolving the uncertainties of the extent of threats and protections may be useful in identifying locations where additional protective measures would most benefit the beetle. Notwithstanding these uncertainties, it is clear that protections appear to be greatest in the north Central Valley where more occurrences are known.
Of the 26 known locations, four include a significant component of well-protected lands with known beetle habitat mainly as State or Federal wildlife areas, and portions of six others contain some well-protected lands. All or portions of seven locations are managed for open space or natural values, or are partially on city parks or Forest Service lands where the particular threat of habitat loss is reduced, but other threats from human use remain. All or portions of seven other locations throughout the Central Valley include private lands where (despite lack of formal protections) threats are presently reduced due to their remote or rural nature associated with topography, which limits the more pervasive threats of agricultural and urban development, or are currently the subject of a safe harbor agreement. The majority of locations contain some lands without protections, some of which are private or designated as floodways that could experience activities that affect beetle habitat. These unprotected locations encompass most of the range of the subspecies including riparian zones in major drainages. Therefore, we conclude that agricultural and urban development, levees, and flood control protection remain as threats to the valley elderberry longhorn beetle in relation to the present or threatened destruction, modification, or curtailment of its habitat or range, both currently and in the future (Factor A). However, these habitat-based threats are not considered significant when taken within the context of the increased number of beetle occurrences known today as compared to the time of listing.
We have found nothing to indicate that the valley elderberry longhorn beetle is threatened by overutilization, for any purpose (Factor B).
While the valley elderberry longhorn beetle may be preyed on by Argentine ants (Factor C), and there is some evidence to indicate that a negative association between presence of the beetle and presence of the ant at some local sites may be related to ant density, the beetle has persisted alongside the ant in larger areas, such as Putah Creek and the American River Parkway, for over 10 years. As there have been no dense concentrations of the ants reported, predation is not believed to be a significant threat.
In the absence of protection under the Act, the regulatory and other legal mechanisms protecting the valley elderberry longhorn beetle from habitat loss would be minimal, except in areas such as conservation easements, mitigation banks, and National Wildlife Refuges specifically managed for the protection of the beetle (Factor D). Riparian vegetation restoration on private lands is implemented under a variety of State and Federal programs. While we would not expect a delisting of the beetle to affect the amount of riparian vegetation restored under these programs. If the beetle were delisted, we anticipate future losses of beetle habitat due to loss of regulatory protection under the Act, especially under sections 7 and 10, but that loss may be offset to a small degree by an increased private landowner willingness to include elderberries in riparian vegetation restoration on their lands. However, removal of the protections of the Act could result in increased losses where the protective provisions of the Act serve to deter habitat modification or destruction on otherwise unprotected private lands. Based on the best available data, we believe it is possible that habitat losses of this type may increase if the subspecies were delisted; thus, there may need to be a commensurate increase in restoration and conservation efforts beyond the State and Federal programs mentioned above to offset this anticipated increased loss. We do not consider the inadequacy of existing regulatory mechanisms to be a threat currently nor in the future for the areas providing protection for the beetle and its habitat (such as portions of locations along the Sacramento River between Red Bluff-Chico and Chico-Colusa, the Feather River, and the Cosumnes-Laguna-Dry Creeks locations). For areas within the beetle's range where protections are less, the prospectus for persistence is considered poor at one location (the Colusa-American River confluence of the Sacramento River), uncertain at four locations (Yuba River in the north Central Valley and the Kings River, Tule River-Deer Creek, and Caliente Creek in the south Central Valley), and fair, average, good or best at all remaining locations (Table 2).
The valley elderberry longhorn beetle has been reported from locations adjacent to agriculture where pesticide application may occur. Pesticides are rarely applied directly to riparian vegetation or, if they are used within riparian vegetation, are believed to be normally applied in a highly controlled manner to target species. This reduces
Climate change might affect the valley elderberry longhorn beetle through habitat effects (i.e., potential changes in temperature and precipitation patterns that could affect elderberry growth; Factor A), or other direct and indirect impacts to the subspecies, such as shifts in the timing of elderberry flowering relative to beetle emergence, or affects to the relationship of the listed and common beetle subspecies in some other way. We are not aware of information that would allow us to make a meaningful prediction about the extent of threats related to climate change (Factors A and E).
Some valley elderberry longhorn beetle occurrences reside at least partially on publicly accessible areas that are subject to intended and unintended human uses, the impacts of which could result in incremental losses or reduction in the amount or quality of beetle habitat. Our evaluation suggests that this type of loss continues among the most important locations of the beetle such as the lower American River, Putah Creek, and other locations. However, available information indicates losses would likely not be frequent; thus, significant losses resulting from human use (including trails, cutting, pruning, and fire) in occupied locations of the beetle are not expected (Factor E).
The best available information suggests that many local beetle populations are isolated from others by distances of greater than the estimated 25 mi (40 km) dispersal distance needed for recolonization. Based on review of occurrence records compared to aerial imagery and other documentation, loss of populations due to fragmentation, and small population size as a result of potential threats to the subspecies, we anticipate these impacts may continue in the foreseeable future (Factor E), although they are not considered significant when taken within the context of the increased number of beetle occurrences known today as compared to the time of listing.
In this proposed rule, we have carefully assessed the best scientific and commercial data available regarding the past, present, and future threats faced by the valley elderberry longhorn beetle, and conclude that the Act's threatened designation no longer correctly reflects the current status of this subspecies. While there are minimal surveys to comprehensively evaluate current presence or population trends over time, we believe the available data are sufficient to conclude that the beetle persists in several additional major locations that were not known at the time of listing, including some locations where habitat restoration and protection has taken place (i.e., Sacramento River, Feather River, and some adjacent tributaries). Records since listing show the beetle may currently occupy most of the 26 locations identified and continues to persist in these locations, as is expected for some period of time into the future.
This accumulation of records over the past 30 years establishes that the beetle's range is larger than was known at the time of listing, albeit patchily distributed in small populations. However, our listing anticipated the finding of additional populations in its determination of the threatened status (Service 1980, p. 52804) and identified these suspected locations in our Recovery Plan (Service 1984, pp. 32–34). Specifically, there are 26 locations that have been documented to have been occupied since the subspecies was listed compared to 3 locations known at the time of listing. These 26 locations occur throughout the Central Valley, compared to the 3 locations known only from the lower American River, Putah Creek, and the Merced River (Talley
Notwithstanding data uncertainties and the absence of protections or enhancements at many locations, we believe sufficient habitat will remain within this range into the foreseeable future and the subspecies no longer meets the definition of endangered or threatened under the Act. Additionally, we believe the beetle will continue to persist based on: (1) The increase in number of beetle occurrence records; (2) increase in number of locations the beetle is found, including over a larger range then what was known at the time of listing; (3) past and ongoing riparian vegetation restoration; and (4) the persistence of elderberry shrubs in these restored areas, as well as a variety of public lands managed for natural values as open space.
The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The definition of “species” is also relevant to this discussion. The Act defines “species” as follows: “The term `species' includes any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” The phrase “significant portion of its range” (SPR) is not defined by the statute, and we have never addressed in our regulations: (1) The consequences of a determination that a species is either endangered or likely to become so throughout a significant portion of its range, but not throughout all of its range; or (2) what qualifies a portion of a range as “significant.”
Two recent district court decisions have addressed whether the SPR language allows the Service to list or protect less than all members of a defined “species”:
Consistent with that interpretation, and for the purposes of this finding, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing; thus there are two
We conclude, for the purposes of this finding, that interpreting the SPR phrase as providing an independent basis for listing is the best interpretation of the Act because it is consistent with the purposes and the plain meaning of the key definitions of the Act; it does not conflict with established past agency practice (i.e., prior to the 2007 Solicitor's Opinion), as no consistent, long-term agency practice has been established; and it is consistent with the judicial opinions that have most closely examined this issue. Having concluded that the phrase “significant portion of its range” provides an independent basis for listing and protecting the entire species, we next turn to the meaning of “significant” to determine the threshold for when such an independent basis for listing exists.
Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, for the purposes of this finding, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. Thus, for the purposes of this finding, and as explained further below, a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction.
We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation.
For the purposes of this finding, we determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether
We recognize that this definition of “significant” (a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction) establishes a threshold that is relatively high. On the one hand, given that the consequences of finding a species to be endangered or threatened in an SPR would be listing the species throughout its entire range, it is important to use a threshold for “significant” that is robust. It would not be meaningful or appropriate to establish a very low threshold whereby a portion of the range can be considered “significant” even if only a negligible increase in extinction risk would result from its loss. Because nearly any portion of a species' range can be said to contribute some increment to a species' viability, use of such a low threshold would require us to impose restrictions and expend conservation resources disproportionately to conservation benefit: listing would be rangewide, even if only a portion of the range of minor conservation importance to the species is imperiled. On the other hand, it would be inappropriate to establish a threshold for “significant” that is too high. This would be the case if the standard were, for example, that a portion of the range can be considered “significant” only if threats in that portion result in the entire species' being currently endangered or threatened. Such a high bar would not give the SPR phrase independent meaning, as the Ninth Circuit held in
The definition of “significant” used in this finding carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions will be imposed or resources expended that do not contribute substantially to species conservation. But we have not set the threshold so high that the phrase “in a significant portion of its range” loses independent meaning. Specifically, we have not set the threshold as high as it was under the interpretation presented by the Service in the
The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that have no reasonable potential to be significant or to analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be “significant,”
We consider the “range” of the valley elderberry longhorn beetle to be the Central Valley of California, from Shasta to Kern Counties. Because the beetle is dependent on the presence of elderberry shrubs, we consider suitable habitat within the range to be those areas currently supporting elderberry. We consider potentially suitable habitat within the range to be those areas likely to support elderberry shrubs within the foreseeable future. We base this on restoration or protection efforts for riparian vegetation, or on plans for future elderberry restoration efforts.
The valley elderberry longhorn beetle's range can naturally be divided into the Sacramento Valley to the north, and the San Joaquin Valley to the south. In Table 2, we conducted a spatial evaluation of the level of threat and extent of protective measures at each of the 30 locations where the beetle is known to occur (which include 5 separate locales along the Sacramento River that when combined result in a total of 26 beetle locations) in order to determine if any portion of the range were at risk of local extinction. Based on this assessment, there does not appear to be a significant concentration of threats in any portion of the species range. Of the 30 locations, 17 locations occur in the north Central Valley, and 15 of those (88 percent) have a fair, average, good, or best likelihood of persistence. Thirteen locations occur in the south Central Valley, and 10 of those (77 percent) have a fair, average, or good likelihood of persistence. One location in the north Central Valley has a poor likelihood of persistence, and four locations (three in the south Central Valley) are uncertain due to the age of surveys, infrequency of surveys, limited habitat, or absence of adult beetles to confirm identification. Because high percentages of beetle locations in both the north and south Central Valleys have a fair, average, or good likelihood of persistence, this suggests no specific concentration of threats occur in the south Central Valley, nor within any given area within the range of the subspecies. Therefore, we conclude that no portion of the beetle's range is impacted to the extent that it warrants an analysis of its biological significance to the subspecies.
It is our conclusion, based on our evaluation of current and future threats to beetle in the north Central Valley and south Central Valley locations (see Summary of Factors Affecting the Species section and Table 2), that the subspecies no longer meets the definition of endangered or threatened under the Act. Our estimates of the persistence of the beetle in those locations (Table 2) confirm that while a variety of threats affect the beetle in all or parts of its range, it nevertheless is likely to persist throughout its range.
According to 50 CFR 424.11(d), a species may be delisted if the best scientific and commercial data available substantiate that the species is neither endangered nor threatened because of: (1) Extinction, (2) recovery, or (3) error in the original data for classification of the species. We consider “recovery” to apply to the valley elderberry longhorn beetle because habitat protection and restoration efforts in some areas provide assurance that the subspecies and its habitat will continue to persist throughout its range, and additional discoveries of previously unknown beetle populations reduce the overall threat of extinction.
Based on our re-evaluation of the existing or potential threats to the valley elderberry longhorn beetle alone or in combination, we considered:
(1) The number and geographic range of additional locations throughout the Central Valley identified since the time of listing; and
(2) The amount of riparian vegetation restored and protected under numerous programs since the time of listing, again most particularly in the Sacramento Valley.
Based on these factors, we find the valley elderberry longhorn beetle no longer meets the Act's definition of a threatened (or endangered) species. Accordingly, we propose to remove it from the List of Endangered and Threatened Wildlife.
This rule, if made final, would revise 50 CFR 17.11(h) to remove the valley elderberry longhorn beetle from the List of Endangered and Threatened Wildlife, and would also revise 50 CFR 17.95(i) to remove designated critical habitat for the beetle. The prohibitions and conservation measures provided by the Act, particularly section 7 and section 9, would no longer apply to the valley elderberry longhorn beetle. Removal of the valley elderberry longhorn beetle from the List of Endangered and Threatened Wildlife would not supersede any State regulations.
Section 4(g)(1) of the Act requires the Secretary of the Interior, in cooperation with the States, to implement a system to monitor for not less than 5 years the status of all species that have recovered and been delisted. The purpose of this post-delisting monitoring (PDM) is to verify that a species delisted due to recovery remains secure from risk of extinction after it no longer has the protections of the Act. We are to make prompt use of the emergency listing authorities under section 4(b)(7) of the Act to prevent a significant risk to the well-being of any recovered species. Section 4(g) of the Act explicitly requires us to cooperate with the States in development and implementation of PDM programs, but we remain responsible for compliance with section 4(g) and, therefore, must remain actively engaged in all phases of PDM. We also seek active participation of other entities that are expected to assume
The valley elderberry longhorn beetle's draft PDM plan, required under section 4 of the Act, is designed to monitor the threats to the valley elderberry longhorn beetle by detecting changes in its status and habitat throughout its known range. The draft PDM plan is available for public comment concurrent with publication of this proposed rule in the
The draft PDM Plan provides information on the goals, duration, implementation, methods, and reporting schedule for monitoring the valley elderberry longhorn beetle. If the final determination is to delist the subspecies, upon publication of a final delisting rule, the Service will convene a Science Panel (see section 4.7 in the Draft PDM Plan) to help develop a detailed monitoring plan, which includes site-specific monitoring plans for each monitoring site established throughout the subspecies' range. This detailed monitoring plan will be developed based on site-specific parameters, including a standardized monitoring protocol. Additionally, there will be recognition of an adaptive management concept in the detailed monitoring plan that outlines how we may potentially revise the monitoring protocols based on new information received. The draft PDM Plan provides direction for the following measures to be implemented for a minimum of 10 years following delisting:
(1) Identifying thresholds that trigger an extension of monitoring, adaptive management changes at protected sites, or a status review.
(2) Continued monitoring of currently known occurrences, and conducting additional surveys to identify occurrences in new locations.
(3) Refining the population and habitat baseline published at time of delisting against which subsequent increases or decreases in occurrences can be compared.
(4) Determining overall and rangewide trends over 10 years of monitoring (with at least 3 of those years consisting of normal rainfall and air temperatures, specifically including trends regarding persistence of the beetle within watersheds and within protected areas such as conservation banks, select established mitigation sites, CDFG Wildlife Areas, the Sacramento NWR, and the San Joaquin River NWR.
(5) Conducting studies to determine the continued amount (such as number of habitat acres or number of individual plants) and effectiveness of restoration efforts after delisting.
(6) Developing an adaptive management strategy.
(7) Creating a science panel to address issues that arise throughout the PDM process.
Examples of specific monitoring objectives or activities described in the draft PDM Plan that address threats discussed in this proposed delisting rule include:
(1) Collecting data variables that will indicate the abundance of suitable beetle habitat potentially available and occupied by the beetle (Factor A);
(2) Counting the number and condition of elderberry shrubs to determine the overall quality of the host plant for the beetle (Factor A);
(3) Monitoring management efforts by land owners to maximize efficiency of overall expenditures and help the Service, science experts, and cooperating partners reprioritize management efforts (Factors A, C, D, and E);
(4) Sampling potential presence of Argentine ants and European earwigs to determine potential site-specific impacts or an increase in magnitude of this potential threat (Factor C);
(5) Monitoring at known locations in addition to monitoring attempts to locate new occurrences, particularly for expanding our knowledge of the subspecies in the southern portion of its range (Factor E);
(6) Determining effectiveness of riparian enhancement and restoration projects (Factor A); and
(7) Collecting data on potential threats, such as implementation or changes in agriculture or other land uses adjacent to the monitoring sites, signs of levee maintenance, changes or impacts from construction or use of roads and trails, fire and fire control, vegetation clearing or control, and herbicide use (Factors A, C, D, and E).
The loss of a valley elderberry longhorn beetle occurrence or location could be an indication of a problem. Therefore, if a beetle location or an important area (such as a large block of beetle habitat) is lost, the potential causes will be investigated and remedial action taken as outlined in the draft PDM Plan. The PDM Plan would accomplish the objectives through cooperation with the appropriate Federal, State, and local agencies; private partners; and species experts, thus fulfilling the goal to prevent the species from needing Federal protection once again, per the Act. We seek public and peer reviewer comments regarding the draft PDM Plan, including its objectives and procedures (see Public Comments section above).
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
The OMB regulations at 5 CFR 1320 implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501
This proposed rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and (e) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the
A complete list of all references cited in this rule is available on the Internet at
The primary authors of this document are the staff of the Sacramento Fish and Wildlife Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.
2. Amend § 17.11(h) by removing the entry “Beetle, valley elderberry longhorn” under “INSECTS” from the List of Endangered and Threatened Wildlife.
3. Amend § 17.95(i) by removing the critical habitat entry for “Valley Elderberry Longhorn Beetle (