DHS invites interested persons to submit written comments, data, or views. For each comment, please identify the document number and agency name for this notice. DHS encourages commenters to provide their names and addresses. You may submit comments and materials electronically or by mail as provided under the ADDRESSES section. DHS will file in the public docket all comments received by DHS, except for comments containing confidential information, sensitive information, or Chemical-terrorism Vulnerability Information (CVI) as defined in 6 CFR 27.400(b).

Do not submit comments that include trade secrets, confidential commercial information, Chemical-terrorism Vulnerability Information (CVI) or other sensitive information to the public docket. Please submit such comments separate from other non-sensitive comments regarding this notice. Specifically, please mark any confidential or sensitive comments as containing such information and submit them by mail to the individual listed in the FOR FURTHER INFORMATION CONTACT section. Any comments containing CVI should be marked and handled in accordance with the requirements of 6 CFR 27.400(f).

DHS will not place any confidential or sensitive comments in the public docket; rather, DHS will handle them in accordance with applicable safeguards and restrictions on access. See, e.g., 6 CFR 27.400. See also the DHS CVI Procedural Manual (“Safeguarding Information Designated as CVI,” September 2008, located on the DHS Web site at http://www.dhs.gov/chemicalsecurity). DHS will hold any such comments in a separate file to which the public does not have access, and place a note in the public docket that DHS has received such materials from the commenter.

For access to the docket to read the public comments received and relevant background documents referred to in this notice, go to http://www.regulations.gov.

Section 550 of the Homeland Security Appropriations Act of 2007 (Pub. L. 109-295, Oct. 2006) required the Department to issue, within six months, interim final regulations for the security of chemical facilities that, “in the Secretary's discretion, present high levels of security risk.” Under that authority, the Department promulgated the Chemical Facility Anti-Terrorism Standards, 6 CFR Part 27 (CFATS), on April 9, 2007. See 72 FR 17688.

The CFATS interim final rule sought public comment on Appendix A, a tentative list of over 300 chemicals of interest (COI) with the potential to create significant human life or health consequences if released, stolen or, diverted, or sabotaged. Section 27.200(b)(2) of the CFATS regulation requires any chemical facility that possesses any COI at or above the applicable screening threshold quantity (STQ) specified in Appendix A to complete and submit an online data collection (the Top-Screen) to DHS. The Department uses the facility's Top-Screen and, where applicable, other available information to perform a preliminary assessment of the facility's capacity to cause significant adverse consequences if targeted for a terrorist attack.1 DHS uses that preliminary consequence assessment to make an initial high-risk determination for the facility. See 6 CFR 27.200-27.210.

The Department assigns each facility that is initially determined to be high-risk to a preliminary risk-based tier level (Tiers 1-4, with Tier 1 representing the highest risk) and notifies the facility that it must submit a Security Vulnerability Assessment (SVA) to DHS. The Department uses the SVA to make a final high-risk and tiering determination. Only those facilities that are finally determined to be high-risk are subject to the full scope of the regulations and required to submit, for DHS approval, Site Security Plans (SSPs) or Alternative Security Programs (ASPs) that satisfy the risk-based performance standards specified in the CFATS regulations. See 6 CFR 27.220-27.225.

DHS issued the final Appendix A on November 20, 2007. See 72 FR 65396. The November 2007 rule clarified that chemicals of interest listed in Appendix A due to potential risks related to “release” are classified as Release-Explosives, Release-Flammables, or Release-Toxics, according to the type of potential harm they may cause. See 72 FR 65397. In response to comments on the tentative Appendix A, DHS also added provisions to CFATS to clarify under what circumstances 2 and in what manner facilities must calculate the quantities of certain types of COI under Appendix A to determine if they are required to submit Top-Screens. See 72 FR 65397-65398.

Among other clarifications made in November 2007, DHS added § 27.203, which instructs facilities on when and how to calculate the STQ for certain types of chemicals of interest. With respect to chemicals in gasoline, § 27.203(b)(1)(v) requires facilities to count release-flammable COI (such as butane and pentane) contained

In response to comments requesting that DHS clarify whether and how facilities should count COI in mixtures when calculating whether a facility meets or exceeds the applicable STQ under Appendix A, the November 2007 rule also added § 27.204. That section specifies how to calculate the amount of Release-Toxic, Release-Flammable and Release-Explosive COI (as well as Theft-COI) in chemical mixtures. See 72 FR 65399, 65416. In particular, § 27.204(a)(2) (the “flammable mixtures rule”) clarified how to calculate the quantity of Release-Flammable COI contained in chemical mixtures, including gasoline 3 and the other fuels specified in § 27.203(b)(1)(v), for purposes of Appendix A.

The CFATS flammable mixtures rule generally parallels the rules previously adopted by the U.S. Environmental Protection Agency (EPA) under the Clean Air Act's Risk Management Program (RMP) for counting—or excluding—flammable chemicals contained in mixtures that may be inadvertently or accidentally released.4  See 72 FR 65402. As explained in the preamble to the November 2007 rule, however, given the different purposes, scope, and applicability of CFATS and the EPA RMP rules, there are several important differences between the CFATS and RMP mixture regulations. See 72 FR 65398-65399, 65401-65402.

One such difference is that the CFATS flammable mixtures rule requires that Release-Flammable COI (such as butane or pentane) contained in gasoline (and other fuels specified in § 27.203(b)(1)(v)) must be counted under Appendix A, even though EPA does not count the flammable chemicals in gasoline under the terms of the RMP “mixtures rule,” 42 CFR 68.115(b)(2).5 See 72 FR 65399 and n. 8. The November 2007 notice explained that, while EPA's RMP rules are premised solely on accidental releases of chemicals, the COI in these flammable mixtures, including gasoline, should be counted under Appendix A because of the potential consequences to human life or health of an intentional terrorist attack. See 72 FR 65399.

Over 36,000 facilities have submitted Top-Screens to DHS and about 6500 of those facilities were preliminarily determined by DHS to be high-risk and required to submit SVAs. DHS is now in the process of notifying those facilities that, based on review of their SVAs, DHS has finally determined to be high-risk and thus required to submit SSPs. On June 29, 2009, DHS issued final high-risk notifications to 10 aboveground gasoline storage tank facilities (i.e., terminals).6 Subsequently, DHS extended the SSP due dates for those facilities to allow the Department to coordinate further actions regarding terminals as a group. This extension is indefinite, pending the Department's consideration of certain technical issues and questions raised during the initial high-risk determination process for those facilities, as discussed below.

Soon after promulgation of the November 2007 Appendix A final rule, several trade associations representing gasoline terminals raised both technical and procedural issues related to the applicability of Appendix A and the Top-Screen requirement to those facilities. Procedurally, those associations claimed that DHS did not provide advance notice and opportunity to comment on the provisions of §§ 27.203 and 27.204 related to aboveground fuel storage facilities that DHS added to CFATS in November 2007. Technically, the industry associations claimed that DHS had overestimated the potential consequences of a terrorist attack on gasoline terminals by relying on a model that calculates the impacts of a “vapor cloud explosion” from release of flammable liquids from aboveground storage tanks, which the industry asserted is unrealistic for gasoline terminals.

On May 13, 2009, the International Liquid Terminals Association (ILTA) submitted a petition to DHS under the Administrative Procedure Act requesting that DHS exempt gasoline from CFATS and remove all references to gasoline terminals from § 27.203(b)(1)(v) and the CFATS flammable mixtures rule (§ 27.204(a)(2)).7 Through this notice, DHS invites comments on certain technical issues related to the applicability of CFATS to gasoline terminals.

In deciding to add provisions to CFATS for counting chemicals of interest in aboveground gasoline storage tanks, DHS considered several possible methods for modeling the potential consequences of terrorist incidents directed at such facilities—i.e., the vapor cloud explosion (VCE) model and the “pool fire” model.

In essence, a VCE model calculates the maximum distance at which a vapor cloud produced by release of flammable chemicals would be harmful or lethal to persons in or near the cloud (the “distance to endpoint”), based on the amount of flammable liquid chemical available, the estimated amount of the liquid that would convert to vapor, and the distance the vapor cloud could spread before becoming too “lean” to explode when exposed to an ignition source.

Since EPA had already developed a VCE model for estimating the consequences of accidental releases of flammable chemicals, including flammable mixtures, under the RMP regulations, DHS used the EPA VCE model as a starting point for modeling potential VCE consequences for all Release-Flammable COIs, including those at gasoline terminals.8 DHS modified the EPA VCE model, however, to account for certain differences between gasoline and other flammable liquids mixtures, as explained below. DHS believes the modified VCE model reflects a plausible worst-case scenario for terminals and is an appropriate tool for assessing the potential consequences of a terrorist attack against gasoline terminals.

Specifically, DHS refined the EPA VCE model to provide an even more plausible estimate of the potential consequences of a terrorist attack on gasoline terminals in particular. While EPA's VCE model assumes that (up to) ten percent of a given amount of a flammable liquid will participate in the explosion (the “yield factor”), DHS assumes that only one percent of gasoline will participate, based on gasoline's combustion properties and its storage at ambient conditions.9 This modification results in a reduction of the potential consequences calculated by the model, as compared to EPA's model, and appears to be consistent with the consequences from prior vapor cloud explosions involving gasoline, as discussed below. Therefore, the modified VCE model allows DHS to reasonably estimate the number of plausible worst-case casualties resulting from a successful attack on a gasoline terminal.

DHS understands that the formation of a gasoline vapor cloud with the potential to cause significant harm to human life and health requires that a number of natural and man-made circumstances combine in a certain way, and that accidental gasoline vapor cloud explosions are therefore uncommon. DHS has determined, however, that those necessary conditions are more likely to exist in the event of an intentional terrorist incident than in the context of an accident, and thus, that it is reasonable and within the Secretary's discretion under Section 550 to apply the modified VCE model to gasoline terminals. See generally 72 FR 65399.

For example, in 2005 (long after EPA excluded gasoline from the RMP rule, see n. 5, supra), a vapor cloud explosion resulting from an unintentional overflow of a gasoline storage tank at the Buncefield Oil Storage Depot in Hertfordshire, UK caused significant injuries and other damage. Several gasoline storage trade associations have asserted that the combination of specific circumstances resulting in the Buncefield incident—e.g., accidental but prolonged and undetected overflow of the tank, failure of detection devices, congestion from nearby obstacles, weather conditions favoring accumulation rather than dispersal of the vapor cloud 10 —are so rare that DHS should disregard the possibility of such explosions at gasoline terminals.11

DHS has concluded, however, that a terrorist seeking to cause such an explosion could target a facility where the necessary physical conditions exist (or are likely to occur at some point in time). In order to maximize the consequences of the explosion, such a terrorist could attempt to cause gasoline to leak or overflow from the targeted tank(s) in such a way as to make formation of a vapor cloud more likely than it would be in an accident like the Buncefield explosion.12

Nonetheless, DHS invites public comment on the modified VCE model and on any alternatives to the specific modification made by DHS to the yield factor in the model.

DHS considered other options for evaluating the potential consequences of a release from such facilities. Specifically, DHS considered an existing model that calculates the potential consequences from the radiated heat of a “pool fire” caused by ignition of liquid gasoline suddenly released from one or more aboveground tanks, but that implicitly assumes the pool fire is confined within dikes or other secondary containment surrounding the tank(s).13 The gasoline industry asserts that this “contained pool fire” scenario is more realistic for terrorist incidents involving gasoline terminals (e.g., attacks using explosive devices or weapons) than the VCE scenario. The industry also asserts that the potential consequences of such contained pool fires do not warrant subjecting terminals to any CFATS requirements.

DHS did not rely on the “contained pool fire” scenario, however, because any model that assumes the effectiveness of secondary containment does not represent a plausible, worst-case terrorist scenario, since an adversary seeking to maximize the consequences of attacking a terminal would also attempt to breach the secondary containment.14

DHS is currently considering, however, and seeks comments on, whether it is feasible to refine existing models or develop a new model for uncontained pool fires (i.e., where the contents of one or more gasoline storage tanks escape from secondary containment), so that such a model could be used for future consequence assessments for gasoline terminals—in lieu of or in addition to the modified VCE model.

Comments that will provide the most assistance to DHS should address the following issues and questions. Commenters should include explanations and relevant supporting materials with their comments whenever possible.

a. Comments on the inclusion of 6 CFR 27.203(b)(1)(v) (counting of Release-COI in gasoline, diesel, kerosene, or jet fuel in aboveground storage tanks) and 6 CFR 27.204(a)(2) (the flammable mixtures rule), as they apply to gasoline terminals.

b. Comments on the applicability of the modified VCE model to gasoline terminals, including: whether the reduction of the vapor yield for gasoline from ten percent (as in EPA's VCE model) to one percent reasonably reflects the potential consequences for a vapor cloud explosion from gasoline (as compared to other liquid flammable chemicals); and whether a different yield factor adjustment might better reflect the potential consequences for a vapor cloud explosion from gasoline.

c. Comments on whether a reasonable model exists or should be developed for future use that would allow DHS to estimate the plausible worst-case consequences of an uncontained pool fire resulting from a successful attack on gasoline terminals.

I. Background

On December 21, 2000, the Secretary established, within the National Organic Program (NOP) (7 CFR part 205), the National List regulations §§ 205.600 through 205.607. This National List identifies the synthetic substances that may be used and the nonsynthetic (natural) substances that may not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural and nonorganic agricultural substances that may be used in organic handling. The Organic Foods Production Act of 1990, as amended, (7 U.S.C. 6501 et seq.), (OFPA), and NOP regulations, in § 205.105, specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural and any nonsynthetic nonagricultural substance used in organic handling be on the National List.

Under the authority of the OFPA, the National List can be amended by the Secretary based on proposed amendments developed by the NOSB. Since established, the National List has been amended eleven times: October 31, 2003, (68 FR 61987); November 3, 2003, (68 FR 62215); October 21, 2005, (70 FR 61217), June 7, 2006, (71 FR 32803); September 11, 2006, (71 FR 53299); June 27, 2007, (72 FR 35137); October 16, 2007, (72 FR 58469); December 10, 2007, (72 FR 70479); December 12, 2007, (72 FR 70479); September 18, 2008, (73 FR 59479); October 9, 2008, (73 FR 59479). Additionally, a proposed amendment to the National List was published on June 3, 2009, (74 FR 26591).

This proposed rule would amend the National List to reflect two recommendations submitted to the Secretary by the NOSB on November 19, 2008, and May 6, 2009. Based upon their evaluation of petitions submitted by industry participants, the NOSB recommended that the Secretary amend § 205.601 of the National List to amend the annotation for one exempted material (tetracycline) and add one substance (sulfurous acid) for use in organic crop production. The amended annotation and the exemption for use of the added substance in organic production were evaluated by the NOSB using the criteria specified in OFPA (7 U.S.C. 6517-6518).

The following provides an overview of the proposed amendments to designated sections of the National List regulations:

This proposed rule would amend § 205.601 of the National List regulations by: (1) Amending the annotation of paragraph (i)(11) by eliminating the parenthetical reference to a form of the exempted material and adding an expiration date; and (2) adding new paragraph (j)(9), for the purpose of allowing the use of the following substances:

Tetracycline. Tetracycline, in the form of oxytetracycline calcium complex, was included in the National List as originally published on December 21, 2000 (FR 65 80548), for use for fire blight control only. In October 2007, a petition was submitted to add oxytetracycline hydrochloride complex for fireblight control in organic crop production. Tetracycline is a broad-spectrum antibiotic for control of bacteria, fungi and mycoplasma-like organisms which functions by inhibiting protein synthesis in bacteria and altering bacterial membranes so that vital genetic material is leaked. For regulatory purposes, Environmental Protection Agency (EPA) uses the term oxytetracycline to refer to pesticides containing either calcium oxytetracycline or hydroxytetracycline monohydrochloride (oxytetracycline hydrochloride). Oxytetracycline is registered with the EPA for the following agronomic uses: fire blight of apples, pears, peaches and nectarines; pear decline; bacterial spot on peaches and nectarines; lethal yellowing of coconut palm; and lethal decline of pritchardia palm.

Oxytetracyclines are derived from the soil bacteria, Streptomyces, by a fermentation process. Technical grade tetracycline is a pale yellow to tan crystalline powder, is freely soluble in water, and decomposes above 180 degrees Celsius. Formulated products containing the technical grade oxytetracycline calcium complex and oxytetracyline hydrochloride for fireblight are wettable powders which are spray-applied using ground or aircraft equipment at early bloom stage, when fire blight infection usually occurs. In addition to agronomic uses, oxytetracyclines are also antibiotics used in human and animal drugs.

Per the Federal Food, Drug, and Cosmetic Act (FFDCA) (21 U.S.C. 301 et seq.), as amended by the Food Quality Protection Act of 1996 (FQPA) (Pub. L. 104-170, August 3, 1996), the EPA established tolerances for residues of these oxytetracycline pesticides in or on raw apples, peaches, nectarines, and pears of 0.35 parts per million (ppm) (40 CFR 180.337). In the 2006 Tolerance Reassessment Progress and Risk Management Decision (TRED), EPA deemed that the toxicity of the oxytetracylines would be similar and thus treated oxytetracycline hydrochloride and oxytetracycline calcium as equivalent for hazard characterization. In conducting the tolerance reassessment for oxytetracycline, EPA considered the aggregate risk from exposure via food and water intake and concluded that the dietary risk for all U.S. populations was below the level of concern. In regards to ecological effects, the EPA reported the potential for terrestrial and aquatic species to be exposed to oxytetracyclines due to use patterns on food crops, and the potential for acute and/or chronic toxicity. The EPA concluded that it is unlikely that antibiotic resistance from pesticidal use of oxytetracycline would result from food exposure, but could theoretically occur among bacteria in orchards. The EPA is conducting a registration review of oxytetracycline to ensure that the intended function is achieved without unreasonable adverse effects on human health or the environment. That review is scheduled for completion in 2014.

At its November 18-20, 2008, meeting in Washington, DC, the NOSB recommended revising the tetracycline listing at 205.601(i)(11) to remove the qualifying words, “oxytetracycline calcium complex,” from the annotation and, in effect, permit the use of either form of oxytetracycline, i.e., oxytetracycline calcium complex and oxytetracycline hydrochloride until October 21, 2012. Both forms of oxytetracycline have EPA registered uses for fire blight control. In this open meeting, the NOSB evaluated the available technical forms of oxytetraclycline against the evaluation criteria of 7 U.S.C. 6517 and 6518 of the OFPA, received public comment, and concluded that the two forms of tetracycline are comparable, and that allowing the use of both substances is consistent with the prior decision to allow the use of oxytetracycline calcium complex.

The NOSB, however, recommended adding an expiration date of October 21, 2012, after which no form of tetracycline could be used in organic crop production. Therefore, tetracycline will be removed from the National List by the expiration date rather than through a petition for removal or sunset. The recommendation to change the annotation for tetracycline would have reset the sunset date to 5 years from the date on which the annotation was changed through this rulemaking. The NOSB did not support prolonging the exemption for tetracycline and recommended an expiration date to prevent that occurrence. The NOSB did not find tetracycline to be essential to, nor compatible with, organic production, but approved the use of oxytetracycline hydrochloride solely on the basis that a functionally equivalent form is already allowed for use in organic crop production. The Board was informed during the meeting, and this information is supported by EPA references, that oxytetracycline calcium complex and oxytetracycline hydrochloride are the only forms of oxytetracycline that have registered agricultural uses. NOSB approval of this petition is not expected to increase the overall use of tetracycline in organic crop production, but would allow growers to substitute one form for another until October 21, 2012.

The NOP engaged in consultations with the EPA and Food and Drug Administration (FDA). The EPA informed the NOP that the proposed amendment to exempt oxytetracycline hydrochloride for use in organic crops is consistent with EPA regulations. Concerning the use of tetracycline, FDA deferred to EPA as the appropriate regulatory body. Therefore, after consultation with the EPA and FDA regarding NOSB's recommendation to amend the annotation for tetracycline use in organic crops, the Secretary proposes to accept NSOB's recommendation and amend § 205.601 of the National List by: (1) Removing the qualifying words in parenthesis from the annotation at (i)(11) which currently specifies, “oxytetracycline calcium complex” to allow either form of oxyetracycline to be used; and, adding the expiration date, October 21, 2012, after which no tetracycline may be used in organic crop production for fireblight control.1

Sulfurous Acid (CAS #-7782-99-2). Sulfurous Acid was petitioned for use in organic crop production as a soil amendment. It functions as an acidifying agent to neutralize and reduce the excessive alkalinity (bicarbonates and carbonates) in soil or water. This substance also has transient biocide properties that contribute to keeping irrigation conveyance systems clean by suppressing growth of bacteria and pathogenic microorganisms. Sulfurous acid is a clear, nearly colorless solution (6-12%) which has a pungent odor, and is soluble in water. Sulfurous acid degrades through microbial decomposition to hydrogen ion and sulfate ion. The hydrogen ions cause the acidifying effects. The sulfate ion is a nutrient to plants and micro-organisms as long as the soil is aerobic.

Sulfurous acid is produced through natural and man-made processes by reacting sulfur dioxide with water. In nature, sulfurous acid is produced by wild fires, hydro-thermal vents on the ocean floor, vents on the earth's surface, volcanic eruptions and fumaroles emitting sulfur dioxide and reacting with water. Sulfur dioxide is also produced by burning coal to produce heat or electricity. Sulfurous acid can be manufactured by oxidizing elemental sulfur in a burner chamber with pressurized water. The sulfur dioxide that is produced is immediately captured to form an aqueous solution of sulfurous acid which can be added to the irrigation water stream for application to fields. Within hours of formation, sulfurous acid degrades to a hydrogen ion and a bi-sulfite ion and is not sufficiently stable for transporting to a farm sites for use.

The EPA does not regulate the application of sulfurous acid as a soil amendment to reduce alkalinity. Sulfurous acid can cause burns from all routes of exposure and is corrosive. Handlers should have protective clothing, eyeware and gloves, and respirators may be needed in some circumstances. Sulfurous acid should be used in a well-ventilated area. Repeated exposure may cause damage to mucous membranes, upper respiratory tract, skin and eyes.

Adverse biological or chemical reactions are not likely from the proposed use in organic crops soil amendment purposes due to the quick degradation of sulfurous acid, provided, that the sulfurous acid is applied at the intended use rate and that soil pH is closely monitored. If anaerobic conditions develop in waterlogged soil, anaerobic bacteria could convert the sulfate ion to hydrogen sulfide which would be toxic to the immediate ecosystem.

At its May 4-6, 2009, meeting in Washington, DC, the NOSB recommended adding sulfurous acid to the National List as a soil amendment for use in organic crop production, to be generated on-farm only by burning 99% pure elemental sulfur per § 205.601(j)(2), due to the transient nature of the sulfurous acid. In this open meeting, the NOSB evaluated sulfurous acid against the evaluation criteria of 7 U.S.C. 6517 and 6518 of the OFPA, received public comment, and concluded that the use of the substance, as annotated, is consistent with the OFPA evaluation criteria. The NOSB explained that the on-farm generation is necessary because the short half-life of sulfurous acid would prohibit shipping from off-farm sites. Furthermore, the NOSB specified elemental sulfur at 99% purity as it is typically available in this form.

The NOSB also examined whether the addition of sulfurous acid was necessary in consideration of other substances on the National List, specifically elemental sulfur and organic acids. The Board indicated that the controlled application of sulfurous acid via irrigation is preferable to broadcast applications of elemental sulfur, which acts slower and can negatively impact the microbial soil life at the application rates used. Furthermore, the Board determined that relying upon organic acids, such as citric, would require the importation and application of such large quantities as to make the use of those substances impractical.

The NOP engaged in consultations with the EPA and FDA. FDA deferred to EPA as the appropriate regulatory body. EPA concurred that the use of this substance as specified would not conflict with EPA regulations. Therefore, after consultation with the EPA and FDA regarding NOSB's recommendation to permit the use of sulfurous acid as a soil amendment in organic crop production when limited to on-farm generation by burning 99% pure elemental sulfur, the Secretary is proposing to accept the NOSB's recommendation and amend § 205.601(j) of the National List by adding sulfurous acid at new paragraph (j)(9) as follows:

Sulfurous acid (CAS #-7782-99-2)—from on-farm generation of substance, by burning only 99% elemental sulfur, exempted at (j)(2) in this section.2

Three notices were published regarding the meetings of the NOSB and its deliberations on recommendations and substances petitioned for amending the National List. Substances and recommendations included in this proposed rule were announced for NOSB deliberation in the following Federal Register Notices: (1) 73 FR 18491, April 4, 2008 (Tetracycline); (2) 73 FR 54781, September 23, 2008 (Tetracycline); (3) 74 FR 11904, March 20, 2009 (Sulfurous Acid). NOSB meetings are open to the public and allow for public participation.

The OFPA, as amended [7 U.S.C. 6501 et seq.], authorizes the Secretary to make amendments to the National List based on proposed amendments developed by the NOSB. Sections 6518(k)(2) and 6518(n) of the OFPA authorize the NOSB to develop proposed amendments to the National List for submission to the Secretary and establish a petition process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List. The National List petition process is implemented under § 205.607 of the NOP regulations. The current petition process (72 FR 2167, January 18, 2007) can be accessed through the NOP Web site at http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5048809&acct=nopgeninfo.

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

Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This proposed rule is not intended to have a retroactive effect.

States and local jurisdictions are preempted under the OFPA from creating programs of accreditation for private persons or State officials who want to become certifying agents of organic farms or handling operations. A governing State official would have to apply to USDA to be accredited as a certifying agent, as described in § 2115(b) of the OFPA (7 U.S.C. 6514(b)). States are also preempted under §§ 2104 through 2108 of the OFPA (7 U.S.C. 6503 through 6507) from creating certification programs to certify organic farms or handling operations unless the State programs have been submitted to, and approved by, the Secretary as meeting the requirements of the OFPA.

Pursuant to § 2108(b)(2) of the OFPA (7 U.S.C. 6507(b)(2)), a State organic certification program may contain additional requirements for the production and handling of organically produced agricultural products that are produced in the State and for the certification of organic farm and handling operations located within the State under certain circumstances. Such additional requirements must: (a) Further the purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.

Pursuant to § 2120(f) of the OFPA (7 U.S.C. 6519(f)), this proposed rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601 et seq.), the Poultry Products Inspections Act (21 U.S.C. 451 et seq.), or the Egg Products Inspection Act (21 U.S.C. 1031 et seq.), concerning meat, poultry, and egg products, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 et seq.), nor the authority of the Administrator of the EPA under the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.).

Section 2121 of the OFPA (7 U.S.C. 6520) provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under this title that adversely affects such person or is inconsistent with the organic certification program established under this title. The OFPA also provides that the U.S. District Court for the district in which a person is located has jurisdiction to review the Secretary's decision.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

Pursuant to the requirements set forth in the RFA, the AMS performed an economic impact analysis on small entities in the final rule published in the Federal Register on December 21, 2000 (65 FR 80548). The AMS has also considered the economic impact of this action on small entities. The impact on entities affected by this proposed rule would not be significant. The effect of this proposed rule would be to allow the use of additional substances in agricultural production. This action would relax the regulations published in the final rule and would provide small entities with more tools to use in day-to-day operations. The AMS concludes that the economic impact of this addition of allowed substances, if any, would be minimal to small agricultural producers and service firms. Accordingly, USDA certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Small agricultural service firms, which include handlers and accredited certifying agents, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000.

According to USDA, Economic Research Service data based on information from USDA-accredited certifying agents, the U.S. organic industry included nearly 6,949 certified organic crop and livestock operations at the end of 2001. These operations reported certified acreage totaling more than 2.09 million acres of organic farm production. By the end of 2005, the number of U.S. certified organic crop and livestock operations totaled about 8,500 and certified organic acreage exceeded 4 million acres. ERS, based upon information provided by domestic accredited certifying agents, estimated the number of certified handling operations as exceeding 2,790 in 2004. AMS believes that most of these entities would be considered small entities under the criteria established by the SBA.

The U.S. sales of organic food and beverages have grown from $1 billion in 1990 to nearly $17 billion in 2006. The organic industry is viewed as the fasting growing sector of agriculture, representing almost 3 percent of overall food and beverage sales. Since 1990, organic retail sales have historically demonstrated a growth rate between 20 to 24 percent each year, including a 22 percent increase in 2006.

In addition, USDA has 100 accredited certifying agents who provide certification services to producers and handlers. A complete list of names and addresses of accredited certifying agents may be found on the AMS NOP Web site, at http://www.ams.usda.gov/nop. AMS believes that most of these accredited certifying agents would be considered small entities under the criteria established by the SBA.

No additional collection or recordkeeping requirements are imposed on the public by this proposed rule. Accordingly, OMB clearance is not required by section 350(h) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., or OMB's implementing regulation at 5 CFR part 1320.

The AMS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

The AMS is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons set forth in the preamble, 7 CFR part 205, Subpart G is proposed to be amended as follows:

The Petitioner

The petitioner is an organization representing the managers of solid waste, hazardous waste, remediation, and underground storage tank programs of the States and territories. The petitioner states it is tasked with identifying national level radiation issues of concern and promoting partnerships between States and Federal agencies to address these issues. The petitioner states it has been working with the U.S. Environmental Protection Agency since 2002 to improve public information about existing tritium exit signs.

The petitioner performed an evaluation on the lack of control of tritium exit signs and contamination of landfill leachate (the final report “Lack of Tritium Exit Signs Control and Contamination of Landfill Leachate,” dated July 2009, is included as part of the petition), and stated that it found that the majority of unaccounted for tritium exit signs are disposed of in solid waste landfills where they become potential sources of groundwater and surface water contamination. The petitioner states that a minority of tritium exit signs are returned to the manufacturer for recycling, or disposed of as low-level radioactive waste.

The petitioner asserts that from the standpoint of the existing market, specific changes to new tritium exit signs will improve recognition and thus accountability. The labeling should be in several locations on the sign, with a larger font, and the expiration date should be distinctly legible to a fire or building inspector without taking down the sign. The petitioner also states that manufacturers do not always demonstrate accountability in dispensing exit signs to the proper recipients, and recipients are not informed of proper ownership and regulatory requirements provided in NUREG-1556, Vol 16, Appendix L, and 10 CFR 31.5 of the NRC's regulations. The online vendors do not always highlight that tritium is radioactive and that it has special “general licensing” requirements. The petitioner asserts that radiation trefoil should be displayed on the front and back of advertisements.

The petitioner believes that, given the recent Walmart experience with the tritium exit signs, general licensing is successful only when the user understands that these devices are radioactive and subject to controls. Also, in light of the current general lack of controls, specific licensee manufacturers should be responsible for informing customers of the proper disposal of expired and used tritium exit signs. From the standpoint of solid waste management officials, the petitioner believes that the NRC should exercise its full regulatory authority to prevent the disposal of tritium exit signs in landfills.

The petitioner further asserts that, though not in NRC's purview, advances in photo-luminescent technology over the past decade have demonstrated effective alternate technology for places without electricity. Efficient Light Emitting Diodes with backup batteries are being used where electricity is available. These technologies together replace the need for tritium self-luminescent exit signs. The petitioner states that solid waste management officials simply want to stop tritium exit sign disposal in landfills.

The petitioner requests that the NRC revise its regulations and/or guidance to improve the labeling and accountability of tritium exit signs. The petitioner states that it would ideally like to see tritium exit sign technology immediately replaced by alternative technologies.

The petitioner requests that NRC revise its regulations and/or guidance to state:

1. The labeling should be in several locations on the sign, with larger font.

2. An expiration date should be distinctly legible to a fire or building inspector without taking down the sign.

3. The radiation trefoil should be displayed on the front and back of advertisements.

Also, the petitioner recommends a national collection effort with distinct milestones and goals should be undertaken to consolidate all expired and disused tritium exit signs. The petitioner requests that NRC organize a meeting with ASTSWMO and all interested stakeholders to set a new path forward on this issue.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-1254; Directorate Identifier 2009-NM-040-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009-0014, dated January 21, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

BAE Systems (Operations) Limited has issued Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008. 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 reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 1 product of U.S. registry. We also estimate that it would take about 12 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $960.

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.

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

1. Is not a “significant regulatory action” under Executive Order 12866;

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

3. 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.

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

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 ADDRESSES section. Include “Docket No. FAA-2009-1250; Directorate Identifier 2008-NM-169-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.

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

On January 8, 1993, we issued AD 93-01-11, Amendment 39-8465 (58 FR 6081, January 26, 1993). That AD required actions intended to address an unsafe condition on the products listed above.

Since we issued AD 93-01-11, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2008-0168, dated September 2, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

BAE Systems (Operations) Limited has issued Inspection Service Bulletin ISB.57-070, dated October 15, 2007. 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 reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 1 product of U.S. registry.

The actions that are required by AD 93-01-11 and retained in this proposed AD take about 4 work-hours per product, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the currently required actions is $320 per product.

We estimate that it would take about 4 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $320.

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.

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

1. Is not a “significant regulatory action” under Executive Order 12866;

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

3. 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.

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

In proposed rule FR Doc. E9-28517, beginning on page 62531 in the issue of November 30, 2009, make the following corrections in the heading of the document.

On page 62531, correct the docket number to read “[ISOO-09-0001]”and correct the RIN to read “3095-AB63”.

The proposal for which EPA is holding the public hearings will be published in an upcoming Federal Register. The public hearings will provide interested parties the opportunity to present data, views, or arguments concerning the proposed rules. The EPA may ask clarifying questions during the oral presentations, but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at the public hearings. Written comments must be postmarked by the last day of the comment period, as specified in the proposal.

The three public hearings will be held concurrently in Arlington, Virginia, and Houston, Texas, on February 2, 2010, and in Sacramento, California, on February 4, 2010. The public hearings will begin each day at 9:30 a.m. and continue until 7:30 p.m. (local time) or later, if necessary, depending on the number of speakers wishing to participate. The EPA will make every effort to accommodate all speakers that arrive and register before 7:30 p.m. The EPA is scheduling a lunch break from 12:30 until 2 p.m. If you would like to present oral testimony at the hearings, please notify Ms. Tricia Crabtree, (C504-02) U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, e-mail (preferred method for registering): crabtree.tricia@epa.gov; telephone: (919) 541-5688. She will arrange a general time slot for you to speak. The EPA will make every effort to follow the schedule as closely as possible on the day of the hearings.

Oral testimony will be limited to five (5) minutes for each commenter to address the proposal. We will not be providing equipment for commenters to show overhead slides or make computerized slide presentations unless we receive special requests in advance. Commenters should notify Ms. Crabtree if they will need specific audiovisual (AV) equipment. Commenters should also notify Ms. Crabtree if they need specific translation services for non-English speaking commenters. The EPA encourages commenters to provide written versions of their oral testimonies either electronically on computer disk or CD-ROM or in paper copy.

The hearing schedules, including lists of speakers, will be posted on EPA's Web site for the proposal at http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_cr_fr.html prior to the hearings. Verbatim transcripts of the hearings and written statements will be included in the rulemaking docket.

The EPA has established the official public docket for the “Reconsideration of the 2008 National Ambient Air Quality Standards for Ozone” under Docket Number EPA-HQ-OAR-2005-0172. The EPA has also developed a Web site for the proposal at the address given above. Please refer to the proposal, published in an upcoming Federal Register for detailed information on accessing information related to the proposal.

A. Background

On January 6, 2010, DoD published a proposed rule in the Federal Register (75 FR 832). The comment date is being corrected from March 9, 2009, to March 9, 2010.

We, the U.S. Fish and Wildlife Service, published a 90-day finding on a petition to list the eastern population of the gopher tortoise (Gopherus polyphemus) as threatened in the Federal Register on September 9, 2009 (74 FR 46401). In that finding, we found that the petition presented substantial scientific or commercial information indicating that listing the eastern population of the gopher tortoise may be warranted. We also initiated a status review to determine if listing the species is warranted, and asked the public to submit information to assist us in our status review. We asked the public to submit information by November 9, 2009, in order for us sufficient time to consider the information in the status review.

Since that time, several interested parties have notified us that they wish to submit additional information relevant to the listing of the eastern population of the gopher tortoise. They have indicated that the information could not be submitted before November 9, 2009, but could be submitted prior to the anticipated completion of the status review in 2010. We have advised these parties individually that we would continue to accept such information after November 9, 2009. However, to ensure that all interested parties have the same opportunity to provide relevant data, this notice clarifies that information to assist us in our review of the status of the gopher tortoise may be submitted to the Federal eRulemaking Portal through the date specified in DATES, and directly to the Field Office thereafter (see DATES and ADDRESSES above). This notice also corrects errors in contact information in the September 9, 2009, notice.

We are continuing to request information on the status of the gopher tortoise throughout its range. We request information from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning the status of the eastern portion of the gopher tortoise's range. We are seeking information regarding:

(1) The species' historical and current status and distribution, its biology and ecology, and ongoing conservation measures for the species and its habitat;

(2) Information relevant to the factors that are the basis for making a listing determination for a species under section 4(a) of the Act, which are:

a) The present or threatened destruction, modification, or curtailment of the species' 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 and threats to the species or its habitat; and

(3) Information related to the genetics, status, distribution, and threats to the gopher tortoise in the eastern portion of its range.

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 (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.” Based on our status review, we will issue a 12-month finding on the petition as provided in section 4(b)(3)(B) of the Act.

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

We will accept written comments and information during this reopened comment period on the proposed designation of critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium cookii that was published in the Federal Register on July 28, 2009 (74 FR 37314), the DEA of the proposed designation of critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium cookii, and the amended required determinations provided in this rule. Verbal testimony or written comments may also be presented during the public hearing (see the Public Hearing section below for more information). We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

1) The reasons why we should or should not designate areas as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to Limnanthes floccosa ssp. grandiflora and Lomatium cookii from human activity, the degree of which could be expected to increase due to a designation, and whether the benefit of designation would outweigh threats to the species caused by a designation, such that the designation of critical habitat would be prudent.

2) Specific information on:

• The amount and distribution of L.f. ssp. grandiflora and Lomatium cookii habitat;

• What areas occupied at the time of listing that contain features essential to the conservation of the species should be included in the designation and why;

• Special management considerations or protections that the features essential to L.f. ssp. grandiflora and Lomatium cookii conservation that have been identified in the proposed rule, including managing for the potential effects of climate change; and

• What areas not occupied at the time of listing are essential to the conservation of the species and why.

3) Specific information on L.f. ssp. grandiflora and Lomatium cookii and the habitat components (physical and biological features) essential to the conservation of these species, such as soil moisture gradient, microsite preferences, and light requirements.

4) Any information on the biological or ecological requirements of these species.

5) Land-use designations and current or planned activities in areas occupied by the species, and their impacts on the species and the proposed critical habitat.

6) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities and the benefits of including or excluding areas that are subject to these impacts.

7) Whether the benefits of excluding any particular area from critical habitat would outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act.

8) 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.

You may submit your comments and materials concerning our proposed rule, the associated DEA, and our amended required determinations by one of the methods listed in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov, your entire submission? including any personal identifying information?will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

Comments and materials we receive, as well as supporting documentation used to prepare this notice, will be available for public inspection at http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section). You may obtain copies of the proposed rule and DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R1-ES-2009-0046, from our Web site at http://www.fws.gov/oregonfwo/, or by mail from the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

We are holding a public hearing on the date listed in the DATES section at the address listed in the ADDRESSES section. We are holding this public hearing to provide interested parties an opportunity to provide verbal testimony (formal, oral comments) or written comments regarding the proposed critical habitat designation, the associated DEA, and the amended required determinations section. An informational session will be held on the day of the hearing from 3:30 p.m. to 5:00 p.m. Pacific Time. During this session, Service biologists will be available to provide information and address questions on the proposed rule in advance of the formal hearing.

People needing reasonable accommodations in order to attend and participate in the public hearings should contact Paul Henson, Oregon Fish and Wildlife Office, at 503-231-6179, as soon as possible (see FOR FURTHER INFORMATION CONTACT section). In order to allow sufficient time to process requests, please call no later than one week before the hearing date.

It is our intent to discuss only those topics directly relevant to the proposed designation of critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium cookii in this notice. For more information on previous Federal actions concerning L.f. ssp. grandiflora and Lomatium cookii, refer to the proposed designation of critical habitat published in the Federal Register on July 28, 2009 (74 FR 37314). For more information on L.f. ssp. grandiflora and Lomatium cookii or their habitat, please refer to the final listing rule published in the Federal Register on November 7, 2002 (67 FR 68004), or contact the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

On December 19, 2007, the Center for Biological Diversity filed a complaint against the Service (Center for Biological Diversity v. Kempthorne, et al., 07-CV-2378 IEG, (S.D. CA)) for failure to designate critical habitat for four plant species, including Limnanthes floccosa ssp. grandiflora and Lomatium cookii. In a settlement agreement reached on April 11, 2008, we agreed to complete a critical habitat determination for L.f. ssp. grandiflora and Lomatium cookii in a single rulemaking because they share similar habitats. We also addressed the other two species in this settlement agreement; however, further work on these species will be completed in separate rules. We agreed to submit a proposed critical habitat rule for both L.f. ssp. grandiflora and Lomatium cookii to the Federal Register by July 15, 2009, and a final rule by July 15, 2010. The proposed rule for these two species was signed on July 13, 2009, and subsequently published in the Federal Register on July 28, 2009 (74 FR 37314).

Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of the Act, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection, and 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. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions that affect critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Under section 4(b)(2) of the Act, we may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of including that particular area as critical habitat, unless failure to designate that specific area as critical habitat will result in the extinction of the species. In making a decision to exclude areas, we consider the economic impact, impact on national security, or any other relevant impact of the designation.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat.

We have prepared a Draft Economic Analysis (DEA), which identifies and analyzes the potential economic impacts associated with the proposed designation of critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium cookii that we published in the Federal Register on July 28, 2009 (74 FR 37314). The DEA quantifies the economic impacts of all potential conservation efforts for L.f. ssp. grandiflora and Lomatium cookii; some of these costs will likely be incurred regardless of whether or not we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur if we finalize the proposed critical habitat designation.

The DEA estimates impacts based on activities that are reasonably foreseeable, including, but not limited to, activities that are currently authorized, permitted, or funded, or for which proposed plans are currently available to the public. The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for Limnanthes floccosa ssp. grandiflora and Lomatium cookii over the next 20 years, which we determined to be the appropriate period for analysis because limited planning information was available for most activities to reasonably forecast activity levels for projects beyond a 20-year timeframe. The DEA identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing. The DEA quantifies economic impacts of conservation efforts for L.f. ssp. grandiflora and Lomatium cookii associated with the following categories of activity: (1) residential, urban, and commercial development; (2) transportation; and (3) species conservation and management activities. A number of economic activities considered in the economic analysis are not forecast to incur baseline or incremental impacts. Therefore, the DEA considers potential impacts to agriculture, grazing, timber harvest, fire management, recreation, and mining activities, but does not quantify potential costs because these activities are either not forecast to occur within the proposed critical habitat, or are not subject to a Federal nexus requiring consultation with the Service.

Total forecast baseline impacts over the 20 years following the designation of critical habitat (2010-2029) are estimated to be $7.83 million to $157 million using a 7 percent discount rate. Baseline impacts are those anticipated regardless of a critical habitat designation. The majority of the total future baseline impacts are associated with development projects ($6.4 million to $156 million). The broad range in baseline impacts is due to the range of impacts estimated for future development activities. Under the low-forecast development scenario, the analysis assumes that future development will occur only in units where it has occurred in the past, at its past rate. Under the high-forecast development scenario, this analysis assumes full build-out over the next 20 years of developable areas within units where development has occurred in the past, or within units where the proposed rule identifies development as a potential threat to the two plant species and their habitat. Baseline impacts to transportation and species management activities are the same under both the low-and high-impact scenarios. Under the low-impact scenario, subunit RV9B (Medford Airport) has the highest levels of impacts ($2.2 million), stemming primarily from conservation actions applied to comply with section 404 of the Clean Water Act as part of a future airport runway expansion project. Under the high-impact scenario, subunit RV6A (White City) has the highest levels of impacts ($32.8 million), stemming primarily from conservation actions applied to comply with section 404 of the Clean Water Act during future development projects.

The DEA estimates that total potential incremental economic impacts in areas proposed as critical habitat over the next 20 years will be $95,200 to $403,000 applying a 7 percent discount rate. Development activities would be the primary economic sector affected; transportation activities and species habitat and conservation management activities would see some minor incremental impacts. All incremental impacts attributed to the designation of critical habitat are administrative costs associated with addressing adverse modification in future section 7 consultations. . As described above for baseline impacts, the range in total incremental impacts is due to the range in development forecasts.

The lack of incremental impacts stemming from sources other than administrative costs is due to the fact that critical habitat designation for Limnanthes floccosa ssp. grandiflora and Lomatium cookii is not expected to change the level, design, or regulation of forecast economic activities. That is, the designation of critical habitat is not expected to result in a decrease in economic activities or additional project modification above and beyond those that would be undertaken as part of the baseline (e.g., to comply with Clean Water Act requirements or to avoid jeopardy to the species).

As stated earlier, we are seeking data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period, including information received during or in response to the public hearing. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of the species.

In our July 28, 2009, proposed rule (74 FR 37314), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data in making these determinations. In this document, we affirm the information in our proposed rule concerning: Executive Order (E.O.) 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Paperwork Reduction Act, the National Environmental Policy Act, and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we are amending our required determinations concerning E.O. 12866 (Regulatory Planning and Review), the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 13211 (Energy Supply, Distribution, and Use), E.O. 12630 (Takings), and the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.).

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

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

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

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

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

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions), as described below. However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of a final rulemaking.

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 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 agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if the proposed designation of critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium cookii would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as residential and commercial development. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies.

If we finalize this proposed critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. In areas where Limnanthes floccosa ssp. grandiflora and Lomatium cookii are present, Federal agencies are already required to consult with us under section 7 of the Act, due to the current endangered status of the species. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

Appendix A.1 of the DEA evaluates the potential economic effects of the proposed designation on small entities, based on the estimated incremental impacts associated with the critical habitat. Based on the quantification of incremental impacts of the proposed designation of critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium cookii as detailed in Chapters 3, 4, and 5 of the DEA, we considered whether any small entities may bear the incremental impacts of this proposed rulemaking. The DEA does not forecast any incremental impacts beyond additional administrative costs associated with considering adverse modification during future Federal section 7 consultations. Small entities may participate in consultation under section 7 of the Act regarding L.f. ssp. grandiflora and Lomatium cookii as a third party applicant (the primary consulting parties being the Service and the Federal action agency) and may spend additional time and effort considering potential critical habitat issues. These incremental administrative costs of consultation borne by third parties were the subject of the analysis for potential impacts of the proposed rulemaking on small entities.

The DEA forecasts section 7 consultations associated with Federal involvement in development, transportation, and species conservation and management activities. The potential incremental costs associated with these activities are analyzed in Chapters 3, 4, and 5 of the DEA, and are summarized as follows.

• Development. Chapter 3 of the DEA anticipates that any future consultations on development will be triggered by the need for a section 404 permit pursuant to the Clean Water Act, which requires section 7 consultation if a project may affect a listed species. The U.S. Army Corps of Engineers (USACE) is the consulting Federal agency on consultations for section 404 permits. Future consultations for 404 permits would also include third parties, such as private developers or county agencies. Private developers may be considered small entities if their annual income is less than $7.0 million. The DEA assumes that consultation costs will be borne by developers as an additional project expense, rather than by landowners who would experience consultation costs as an effect on land values.

• Transportation. As described in Chapter 4 of the DEA, all incremental impacts are forecast to be incurred by the Service and the Oregon Department of Transportation, which, as a State agency, is not considered small.

• Species management conservation. Chapter 5 describes that all incremental impacts are forecast to be borne by the U.S. Bureau of Land Management, a Federal agency, and the Service. As a result, no incremental impacts are expected to be borne by small entities.

As incremental impacts to development activities are the only incremental impacts that may be borne by small entities, the remainder of this analysis focuses on development. Based on the forecast low scenario for future development activity (as described in Chapter 3 of the DEA), approximately 1.13 development projects are expected to occur annually within the study area. Based on the forecast high scenario for future development activity, approximately 6.55 development projects are expected to occur annually within the study area. This analysis assumes that all future development projects within the study area will require formal section 7 consultation triggered by the need for a section 404 permit pursuant to the Clean Water Act. Thus, 1.13 formal consultations are forecast to occur annually under the low scenario, while 6.55 formal consultations are forecast to occur annually under the high scenario. Applying the third party costs of addressing adverse modification during formal section 7 consultation (estimated at $875) to the number of forecast consultations annually, the DEA estimates that the present value of incremental third party costs is equal to $11,200 for all small entities combined under the low-impact scenario and $65,000 under the high-impact scenario over 20 years. In terms of annualized impacts, these present values translate to $1,050 for all small entities under the low-impact scenario and $6,140 under the high-impact scenario (applying a 7 percent discount rate).

Third parties involved in past development consultations include Jackson County and private developers. The population of Jackson County was approximately 201,000 in 2008; thus, Jackson County exceeds the small governmental jurisdiction population threshold of 50,000 people. Forecast consultations on development projects are expected to include Jackson County agencies, local private developers, and relatively large commercial entities as contained in the consultation history. To the extent that forecast consultations include Jackson County agencies or large commercial entities, incremental administrative costs will not be borne by small entities.

However, a large portion of forecast consultations for development activities are expected to include local private developers, which may be small entities depending on their annual revenues. In the past, development projects within the study area have included site preparation such as leveling of land, filling of wetlands, and excavation, in addition to building construction. Therefore, land subdivision, which includes excavating land and preparing it for future residential, commercial, and industrial construction, is identified as the most-applicable industry to capture local private developers that may bear incremental administrative costs due to the designation of critical habitat.

Absent information on the specific third parties that may be involved in future development consultations, the DEA conservatively assumes that all of the entities involved in future consultation efforts are small land subdivision companies. Expected annual impacts to the land subdivision industry ($1,050 under the low-impact scenario and $6,140 under the high-impact scenario) are significantly less than the maximum annual revenues that could be generated by a single small land subdivision entity ($7.0 million). Annual revenues of small development companies within the study area are expected to be roughly $910,000. While 95 land subdivision companies operate within the counties containing proposed critical habitat, the number of these that may be involved in development projects subject to consultation for Limnanthes floccosa ssp. grandiflora and Lomatium cookii is unknown. The estimated annualized impact may be borne by one company or distributed across many. If all impacts were borne by a single small development company, the estimated annualized impact would represent less than 1 percent of total annual revenues under both the low-and high-impact scenarios (assuming average annual revenues for a small development company of $910,000).

In summary, we have considered whether the proposed critical habitat designation would result in a significant economic impact on a substantial number of small entities. As the only anticipated incremental cost of the designation are administrative costs associated with section 7 consultations, the vast majority of incremental costs associated with the proposed designation will be borne by Federal agencies. The only incremental costs identified for small entities are potential costs associated with development activities. Based on the DEA, even if all incremental costs associated with development activities were to be borne by a single development company, which we consider unlikely, the estimated annualized impact would be less than 1 percent of total annual revenues under both the low-and high-impact scenarios considered in the DEA. For these reasons, we certify that, if promulgated, the proposed designation of critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium cookii would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions that may affect the supply, distribution, and use of energy. The OMB's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action. As discussed in Appendix A.2, the DEA finds none of these criteria are relevant to this analysis. The DEA concludes that energy-related impacts associated with conservation actions within the potential critical habitat are not expected. All forecast impacts are expected to occur associated with the listing of Limnanthes floccosa ssp. grandiflora and Lomatium cookii, regardless of the designation of critical habitat. Therefore, designation of critical habitat is not expected to lead to any adverse outcomes (such as a reduction in electricity production or an increase in the cost of energy production or distribution). A Statement of Energy Effects is not required.

In accordance with the Unfunded Mandates Reform Act, the Service makes the following findings:

a) 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. First, it excludes “a condition of federal assistance.” Second, it excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or Tribal governments “lack authority” to adjust accordingly. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

Critical habitat designation 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 consult with the Service to ensure that their actions do not destroy or adversely modify critical habitat under section 7. Designation of critical habitat may indirectly impact non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action. However, 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 on to State governments.

b) As discussed in the DEA section of the proposed designation of critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium cookii, we do not believe that this rule would significantly or uniquely affect small governments because it would 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 DEA concludes that any incremental impacts are limited to the administrative costs of section 7 consultations; however, these are not expected to affect small governments. Consequently, a critical habitat designation would not significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for Limnanthes floccosa ssp. grandiflora and Lomatium cookii in a takings implications assessment. Our taking implications assessment concludes that critical habitat for L.f. grandiflora and Lomatium cookii would not pose significant takings implications.

A complete list of all references we cited in the proposed rule and in this document is available on the Internet at http://www.regulations.gov or by contacting the Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

The primary authors of this rulemaking are the staff members of the Oregon Fish and Wildlife Office.

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

Section 4(b)(3)(D)(ii) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), requires that, for any petition that is found to present substantial scientific and commercial information indicating that the requested revisions to critical habitat may be warranted, we make a finding within 12 months of the date of receipt of the petition and publish a notice in the Federal Register indicating how we intend to proceed with the requested revision.

We originally listed the Florida manatee (Trichechus manatus latirostris), a subspecies of the West Indian manatee (Trichechus manatus), as endangered in 1967 (32 FR 4001) under the Endangered Species Preservation Act of 1966 (Pub. L. 89-669; 80 Stat. 926). In 1970, Appendix A to 50 CFR Part 17 was amended to include additional names to the list of foreign endangered species (35 FR 18319). This listing incorporated West Indian manatees into the list under the Endangered Species Conservation Act of 1969 (Pub. L. 91-135; 83 Stat. 275) and encompassed the species' range in the Caribbean and northern South America, thus including both Antillean (T. m. manatus) and Florida manatees in the listing. The West Indian manatee is currently listed as an endangered species under the Act and the population is further protected as a depleted stock under the Marine Mammal Protection Act (16 U.S.C. 1361-1407).

Critical habitat was designated for the Florida manatee on September 24, 1976 (41 FR 41914). This designation delineated specific waterways in Florida that were known to be important concentration areas for manatees at that time.

On December 19, 2008, we received a petition from Wildlife Advocacy Project, Save the Manatee Club, Center for Biological Diversity, and Defenders of Wildlife, requesting that critical habitat be revised for the Florida manatee (Trichechus manatus latirostris) under the Act and the Administrative Procedure Act. The petition clearly identified itself as a petition and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a).

In a January 17, 2009, letter to the petitioners, we responded that we had received the petition and would make a finding, to the maximum extent practicable within 90 days, as to whether or not the petition presents substantial information. We also stated that, if the initial finding concludes that the petition presents substantial information indicating that the requested action may be warranted, then we have 1 year from the date we received the petition to determine how we intend to proceed with the requested revision, and that we would promptly publish a notice of our intentions in the Federal Register at the end of this period.

We published our 90-day finding regarding the petition to revise critical habitat for the Florida manatee on September 29, 2009 (74 FR 49842). We determined that the petition presented substantial information indicating that revising critical habitat for the Florida manatee under the Act may be warranted, thus initiating this 12-month finding. Accordingly, we asked the public to submit information relevant to the finding by October 29, 2009. We have fully considered all information available and received in response to information requested in our 90-day finding.

This 12-month finding discusses only those topics directly relevant to the revision of existing critical habitat for the Florida manatee.

The Florida manatee, Trichechus manatus latirostris, is a subspecies of the West Indian manatee (T. manatus, Linnaeus 1758) and is native to Florida. Manatees are long-lived marine mammals, dark grey in color, and average about 10 feet (3 m) in length and between 800 to 1,200 pounds (363 to 544 kg) in weight. Manatees have a round, flattened, paddle-shaped tail and two front flippers that are used for steering while swimming.

Female manatees are capable of reproduction at as early as 4 years of age; however, most breed between the ages of 7 and 9. Gestation lasts from 12 to 14 months. Normally an adult female would have only one calf every 2 to 5 years, but there are rare occurrences of twins. The mother and calf remain together for up to 2 years. Male manatees aggregate in mating herds around a female when she is ready to conceive, but contribute no parental care to the calf.

The major threats to the Florida manatee population are human related, and include watercraft strikes (direct impacts and propeller cuts), which can cause injury and death (Rommel et al. 2007, p. 111; Lightsey et al. 2006, p. 262); entrapment and crushing in water control structures (gates, locks, etc.); and entanglement in fishing gear. Natural threats include red tide and exposure to cold. A comprehensive threats analysis, recently conducted as part of the Service's 5-year status review, indicated that the single largest threat to the persistence of manatees in Florida is collisions with watercraft. The second most significant threat to the species' survival is the loss of warm-water habitat. The other threats (water control structures, entanglement, and red tide) are of substantially less impact to the overall status of the species (USFWS 2007, p. 24; Runge et al. 2007a, p. 10).

The Florida manatee has not experienced any curtailment in the extent of its range throughout the southeastern U.S. To the contrary, Florida manatees have expanded their summer range to other states along the Atlantic and Gulf coasts. It is now not uncommon to find manatees in coastal waters of Georgia, North and South Carolina, Alabama, and Louisiana.

Florida manatees are found in freshwater, brackish, and marine environments. Typical habitats include coastal tidal rivers and streams, mangrove swamps, salt marshes, and freshwater springs (FWC 2005). As herbivores, manatees feed on the wide range of aquatic vegetation that these habitats provide. Shallow seagrass beds, with ready access to deep channels, are generally preferred feeding areas in coastal and riverine habitats (Smith 1993, p. 5). In coastal Georgia and northeastern Florida, manatees feed in salt marshes on smooth cordgrass (Spartina alterniflora) by timing feeding periods with high tide (Baugh et al. 1989, p. 89; Zoodsma 1991, p. 124). Manatees use springs and freshwater runoff sites for drinking water; secluded canals, creeks, embayments, and lagoons for resting, cavorting, mating, calving, and nurturing their young; and open waterways and channels as travel corridors (Marine Mammal Commission 1984, p. 8, and 1988, p. 88; Gannon, et al. 2007, p. 140; Laist and Boland 2008, p. 1).

Although manatees occupy different habitats during various times of the year (Deutsch et al. (2003, p. 1), they are a subtropical species with little tolerance for cold. Their year-round presence in Florida represents the northern limit of their winter range (Lefebvre et al. 2001, p. 425). Within Florida, they require stable, long-term sources of warm water during cold weather. Prolonged exposure to cold water temperatures can result in debilitation and death due to a phenomenon known as “cold stress syndrome” (Rommel et al. 2002, p. 16; Bossart et al. 2004, p. 437). An ambient water temperature of 68 degrees Fahrenheit (20 degrees Celsius) is generally considered as the lower threshold; below this temperature they have been observed to exhibit an increase in metabolic rate (Worthy et al. 1999, p. 4). When water temperatures begin to decrease to this temperature, manatees will aggregate within the confines of warm-water refuges or move to the southern tip of Florida. During periods of intense cold, they will remain at warm-water refuges; during warm interludes, they will move from the warm-water areas to feed, and return once again when water temperatures are too cold (Hartman 1979, p. 26; Deutsch et al. 2000, p. 22; Stith et al. 2006, p. 24). Recent studies focusing on manatee use of natural warm-water sites include those by Koelsch et al. 2000, p. 27; Taylor et al. 2005. p. 3; Taylor 2006, p. 5; USGS 2006, p. 3; Gannon et al. 2006, p. 133; Stith et al. 2006, p. iv; Reynolds and Barton 2005, 2008, p. 9; and Taylor and Provancha 2008, p. 2).

Historically, manatees relied on the warm, temperate waters of south Florida and on natural warm-water springs scattered throughout the State as buffers to the lethal effects of cold winter temperatures. In part, as a result of human disturbance at natural sites (Laist and Reynolds 2005, p. 740), they have expanded their winter range to include industrial sites and associated warm-water discharges as refuges from the cold. Although manatees overwinter at major springs throughout peninsular Florida, nearly two-thirds of the population winters at industrial warm-water sites, which are now made up almost entirely of power plants (FWC FWRI, unpub. synoptic aerial survey data). The thermal discharge from power plants serves as an attractant to manatees because the temperature of the discharge is much warmer than the surrounding water temperature. Power plants in Brevard, Palm Beach, and Hillsborough counties maintain the largest winter aggregations of manatees throughout the winter. There are numerous research and monitoring studies that have documented historical and recent use by manatees at power plants ( Keith et al. 2008, p. 16; Reynolds 2007, 2009, p. 10; and Fonnesbeck et al. 2009, p. 563).

The Crystal River springs complex in Citrus County and Blue Springs along the St. Johns River, in Volusia County, are the northernmost natural warm-water refuges in Florida used regularly by manatees. These and other natural springs in the State have experienced an increase in manatee use as the Florida population has grown (FWC FWRI, unpub. synoptic aerial survey data).

Minor thermal refuges are also used by manatees throughout Florida. Most of these include canals or boat basins where warmer water temperatures persist as temperatures in adjacent bays and rivers decline.

The loss of Florida's warm-water habitats is one of the leading threats facing the manatee population (Runge 2007a, p. 2). Reductions in spring flows, which affect manatee access and use of springs, are being addressed through the adoption of minimum flow regulations (Florida Springs Task Force 2001, p. 15). A minimum spring discharge rate that considered the estimated flow rates necessary to support overwintering manatees has been identified for Volusia County's Blue Spring and is expected to be adopted, pending the St. Johns River Water Management District's acceptance of a monitoring plan currently under development. Similarly, other springs used by manatees have been scheduled for, or are in the process of developing, minimum flow regulations. Those requirements would assure adequate flows are secured to support manatees. All Primary sites, except the Weeki Wachee/Mud Creek/Jenkins Creek complex, have been protected. Ten of the 47 total known warm-water sites still require protection.

In addition to protecting natural warm-water sites, efforts are under way to restore and improve them to enhance manatee use. As an example, the spring run at Homossassa Springs was dredged in 2006 to improve manatee access; since dredging, studies indicate that the run has been attracting more animals (Taylor 2009, pers. comm.).

We and our partners are defining a network of migratory corridors based on manatee travel patterns and identifying other use areas to ensure protection of feeding, calving, and nursing areas throughout the State (FWC FWRI, unpub. data 2006; USGS FISC Sirenia Project, unpub. data 2006; Gannon et al. 2007, p. 134). Many of these sites are already known and are variously protected under the Florida Manatee Sanctuary Act, the Endangered Species Act, and the Marine Mammal Protection Act. We are currently completing an assessment of manatee habitat use at a number of natural warm-water sites throughout Florida. Recently, we initiated a study to predict manatee carrying capacity at natural warm-water sites, and we are also evaluating effects to manatees in South Florida associated with Comprehensive Everglades Restoration Plan activities.

Industrial thermal discharges are not a reliable source of warm water for the manatee population in the long term. Power plants can be eliminated due to plant obsolescence, environmental permitting requirements, economic pressures, and other factors, and can experience disruptions and temporary shutdowns. It is difficult to predict how manatees will respond to changes at artificial warm-water sites. In some instances manatees have been observed to use less preferred nearby sites, yet, in other cases when thermal discharges have been eliminated, manatees have died due to behavioral persistence or site fidelity (USFWS 2000, p. 74).

Since release of the Service's 5-year status review in 2007, we have new information that two of the oldest power plants in Florida that attract the largest numbers of wintering manatees will be undergoing repowering over the next several years, and will continue to discharge warm water (USFWS 2007, p. 16). Repowering these facilities will reduce the probability of a catastrophic winter mortality event for the manatee population over the next several decades.

We currently assess the status of the Florida manatee population according to regional management units within the State that reflect the winter-season site fidelity of individuals in the population, as manatees tend to return to the same warm-water sites each winter. The four regional management units are: an Atlantic Coast unit that occupies the east coast of Florida, including the Florida Keys and the lower St. Johns River north of Palatka; an Upper St. Johns River unit that occurs in the river south of Palatka; a Northwest unit that occupies the Florida Panhandle south to Hernando County; and a Southwest unit that occurs from Pasco County south to Whitewater Bay in Monroe County. Typical manatee habitat within these geographic boundaries is described in Table 1. Exchange of individuals between the management units is thought to be limited during winter months, based on data from telemetry (Reid et al. 1991, p. 185; Weigle et al. 2001, p. 18; Deutsch et al. 1998, p. 18, and 2003, p. 2) and photo-identification (C. A. Beck, USGS FISC Sirenia Project, unpub. data, 2009; K. Higgs, FWC FWRI, unpub. data, 2009). Movement between management units does occur during warm seasons, particularly along the same coast, and there are some documented cases of wide-ranging coastal movements and isolated events of intercoastal migration (Reid et al. 1991, p. 185; Deutsch et al. 1998, p. 18, and 2003, p. 2; Beck 2009, pers. comm.).

Although natural vegetation has diminished in some locations due to human activities, and exotic vegetation has increased in other areas, the availability of aquatic vegetation as forage is not known to be a limiting factor for manatees at this time (Orth et al. 2006, p. 994; G.A.J. Worthy, University of Central Florida, unpub. data 2006).

The most current information on Florida manatee population demographics (growth, survival, and reproductive rates) includes published studies by Runge et al. (2004, 2007b), Craig and Reynolds (2004), Kendall et al. (2004), and Langtimm et al. (2004), and unpublished reports by the Manatee Population Status Working Group (2005) and Runge et al. (2007a). All of these studies indicate that the manatee population is doing well throughout most of Florida. Population growth rates, determined using the Manatee Core Biological Model (Runge et al. 2004, p. 361, and 2007b), are as follows:

Craig and Reynolds (2004, p. 386) additionally suggested that populations of wintering manatees in the Atlantic Coast Region have been increasing at rates of between 4 and 6 percent per year since 1994.

In southwest Florida, estimates of adult manatee survival and reproduction are less precise than in the other regions of Florida because the time series of data is comparatively shorter for this region and there are no demographic data available for manatees in the southernmost part of this region. The estimates could also be biased low due to effects from temporary emigration (Langtimm et al. 2004, p. 450; Langtimm 2009 pers. comm). Updated estimates of adult survival and growth rates for manatees in this region are anticipated in early 2010.

The most current and best available count of the Florida manatee population is 3,807 animals, based on a single synoptic survey of warm-water refuges and adjacent areas in January 2009 (FWC FWRI 2009 Manatee Synoptic Aerial Survey Data).

Critical habitat was designated for the Florida manatee (listed in that regulation as Trichechus manatus) in 1976 (50 CFR 17.95(a)) as follows: “Florida. Crystal River and its headwaters known as King's Bay, Citrus County; the Little Manatee River downstream from the U.S. Highway 301 bridge, Hillsborough County; the Manatee River downstream from the Lake Manatee Dam, Manatee County; the Myakka River downstream from Myakka River State Park, Sarasota and Charlotte Counties; the Peace River downstream from the Florida State Highway 760 bridge, De Soto and Charlotte Counties; Charlotte Harbor north of the Charlotte-Lee County line, Charlotte County; Caloosahatchee River downstream from the Florida State Highway 31 bridge, Lee County; all U.S. territorial waters adjoining the coast and islands of Lee County; all U.S. territorial waters adjoining the coast and islands and all connected bays, estuaries, and rivers from Gordon's Pass, near Naples, Collier County, southward to and including Whitewater Bay, Monroe County; all waters of Card, Barnes, Blackwater, Little Blackwater, Manatee, and Buttonwood Sounds between Key Largo, Monroe County, and the mainland of Dade County; Biscayne Bay, and all adjoining and connected lakes, rivers, canals, and waterways from the southern tip of Key Biscayne northward to and including Maule Lake, Dade County; all of Lake Worth, from its northernmost point immediately south of the intersection of U.S. Highway 1 and Florida State Highway A1A southward to its southernmost point immediately north of the town of Boynton Beach, Palm Beach County; the Loxahatchee River and its headwaters, Martin and West Palm Beach Counties; that section of the intracoastal waterway from the town of Seawalls Point, Martin County to Jupiter Inlet, Palm Beach County; the entire inland section of water known as the Indian River, from its northernmost point immediately south of the intersection of U.S. Highway 1 and Florida State Highway 3, Volusia County, southward to its southernmost point near the town of Sewalls Point, Martin County, and the entire inland section of water known as the Banana River and all waterways between Indian and Banana Rivers, Brevard County; the St. Johns River including Lake George, and including Blue Springs and Silver Glen Springs from their points of origin to their confluences with the St. Johns River; that section of the Intracoastal Waterway from its confluences with the St. Marys River on the Georgia-Florida border to the Florida State Highway A1A bridge south of Coastal City, Nassau and Duval Counties.”

No map was published with the 1976 designation. The earliest known record of a map created from the physical description of designated critical habitat for the Florida manatee was published by the Service's Office of Biological Services in 1980 (USFWS 1980). A more recent GIS depiction of the general locations of the designated critical habitat for the Florida manatee is shown in Figure 1.

Critical habitat is defined in section 3(5)(A) of the Act as:

(i) 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

(I) essential to the conservation of the species and

(II) which may require special management considerations or protection; and

(ii) 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 the use of all methods and procedures that are necessary to bring any 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, or transplantation.

Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect 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 private landowners. Where a landowner 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 landowner's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

For inclusion in a critical habitat designation, specific areas within the geographical area occupied by the species at the time it is listed must contain the physical and biological features essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas containing the essential physical and biological features that provide for requisite life cycle needs of the species. Under the Act and regulations at 50 CFR 424.12, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species and that designation limited to those areas occupied at the time of listing 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 Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

The current critical habitat designation for the Florida manatee was described before critical habitat regulations and guidance were developed; it does not identify specific physical and biological features essential to the conservation of the manatee for this species' habitat. Instead, it describes specific waterways that were known to be important concentration areas for manatees at that time. We recognize that the geographic areas originally described as manatee critical habitat need to be updated, based on recent scientific studies of manatee distribution, habitat use, and habitat needs as discussed above. Since the original designation, we have more information on the specific habitat needs of the Florida manatee, including the use of warm-water sites (Koelsch et al. 2000, p. 27; Taylor et al. 2005. p. 3; Taylor 2006, p. 5; USGS 2006, p. 3; Gannon et al. 2006, p. 133; Stith et al. 2006, p. iv; Reynolds and Barton 2005, 2008, p. 9; and Taylor and Provancha 2008, p. 2) as well as power plant discharges (Keith et al. 2008, p. 16; Reynolds 2007, 2009, p. 10; and Fonnesbeck et al. 2009, p. 563, among others), that will allow us to identify the physical or biological features essential to manatee conservation. Therefore, based on this current and best available scientific and commercial information, we find that revising critical habitat for the Florida manatee under the Act is warranted.

We intend to identify the physical and biological features essential to conservation of the species, in order to address the ecological and conservation needs of the Florida manatee. Given the significance of warm water to the survival of the manatee in Florida, the most essential feature will be the availability and adequacy of warm-water refugia. Additional features to be considered in the analysis may include adequate forage within dispersal distance of a warm-water refuge, areas needed for calving and nursing, and important travel corridors for movements throughout Florida and beyond. The revision may include both additions and deletions to the current designation, and specific areas within and outside of the geographical area currently occupied by manatees. We find that incorporating these concepts into a revised critical habitat designation for the Florida manatee is important for identifying the specific areas essential to the conservation of the species or which contain the essential features. We request any additional information or input on these potential essential features.

Section 4(b)(3)(D)(ii) of the Act requires that if we find that a revision to critical habitat is warranted, then we are to indicate how we intend to proceed with such revision and promptly publish a notice of our intention in the Federal Register. We have reviewed the best available scientific data available, and we find that revisions to critical habitat for Florida manatee under the Act should be made. However, sufficient funds are not available due to higher priority actions such as listing-related actions pursuant to court orders and judicially-approved settlement agreements. We intend to undertake rulemaking to revise critical habitat for the Florida manatee when funding and staff resources become available.

The resources available for listing actions, including critical habitat designations and revisions, are determined through the annual Congressional appropriations process. We cannot spend more than is appropriated for the Listing Program without violating the Anti-Deficiency Act (31 U.S.C. 1341(a)(1)(A)). Recognizing that designation of critical habitat for species already listed would consume most of the overall Listing Program appropriation, Congress also put in place a critical habitat subcap within the overall Listing Program budget in FY 2002 and has retained it each subsequent year. Thus, through the critical habitat subcap, and the amount of funds needed to address court-mandated critical habitat designations, Congress and the courts have in effect determined the amount of money available for critical habitat revisions. Therefore, the funds in the critical habitat subcap set the limits on our ability to designate critical habitat or revise existing designations in a given year.

In FY 2002 and each year until FY 2006, we had to use virtually all of the funds available under the subcap to address court-mandated designations of critical habitat; consequently, none of the critical habitat subcap funds have been available for other designations. In FY 2007, we were able to use some of the critical habitat subcap funds to fund proposed listing determinations for high-priority candidate species. In FY 2008, we were unable to use any of the critical habitat subcap funds to fund proposed listing determinations; however, we did use some of this money to fund the critical habitat portion of some proposed listing determinations. In those cases, the proposed listing determination and proposed critical habitat designation were combined into one rule, thereby increasing efficiency in our work. In FY 2009, we have been able to continue this practice. However, our current projection for FY 2010 is that all of the funding anticipated for the critical habitat portion of the listing allocation will be used to address court-ordered critical habitat designations. Therefore, we do not anticipate having any funding in FY 2010 available to work on additional critical habitat designations.

Nonetheless, given the requirements of the relevant law and regulations, and constraints relating to workload and personnel, we have endeavored to make our critical habitat designation and revision actions as efficient and timely as possible. We are continually considering ways to streamline processes or achieve economies of scale, such as by batching related actions together as described above.

We intend to proceed with a revision of critical habitat as soon as we have the necessary resources. Our critical habitat regulations (50 CFR 424.12(c)) state that critical habitat will be defined by specific limits using reference points and lines on standard topographic maps of the area. Section 4(b)(2) of the Act requires that we consider economic, national security, and other impacts of designating critical habitat. Based on these authorities, and on the definition of critical habitat under the Act, once funding is available, we will take the following steps to propose the revision of designated critical habitat for the Florida manatee: (1) Determine the geographical area occupied by the species at the time of listing; (2) identify the physical or biological features essential to the conservation of the species; (3) delineate specific areas within the geographical area occupied by the species that contain these features, and that may require special management considerations or protection; (4) delineate any areas outside of the geographical area occupied by the species that are essential for the conservation of the species; and (5) conduct appropriate analyses under section 4(b)(2) of the Act; and (6) invite the public to review and provide comments on the proposed revision through a public comment period.

We intend that any revisions to critical habitat for the Florida manatee be as accurate as possible. Therefore, even until we initiate the proposed designation we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding.

Until we are able to revise the critical habitat designation for the Florida manatee, the currently designated critical habitat, as well as areas that support manatee populations, but are outside the current critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act. Federal agency actions are subject to the regulatory protections afforded by section 7(a)(2), which requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat. We expect that the majority of regulatory projects will involve a Federal nexus, in which case consultation under section 7(a)(2) would apply. In addition, federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases.

Under section 7(a)(2) of the Act, 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. For most species, as a result of this 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, and are likely to adversely affect, listed species or critical habitat.

Because manatees are marine mammals, they are protected under the Marine Mammal Protection Act of 1972 (MMPA). Section 17 of the Act provides that any more restrictive conflicting provisions of the MMPA take precedence over the Act (16 U.S.C. 1543). Section 7(b)(C) of the Act identifies the necessary authorization pursuant to section 101(a)(5) of the MMPA for taking of an endangered or threatened marine mammal. Because the Service has not promulgated a rulemaking under MMPA section 101(a)(5), we do not issue incidental take authorization in conjunction with consultations on Federal actions under section 7(a)(2) of the Act. In order to ensure compliance with section 7(a)(2) of the Act and the more restrictive provisions of the MMPA, any Federal action that is determined as “likely to adversely affect the Florida manatee” (USFWS 2008) will need to:

(1) Modify the project to the extent that take is no longer reasonably certain to occur and/or:

(2) Incorporate Service-approved take minimization and avoidance measures, as outlined in our 2009 Manatee Programmatic Biological Opinion (USFWS 2009).

Therefore, although we are not immediately proceeding with a revision of the current critical habitat designation for the manatee, the current designation still provides protections to the manatee in addition to the protections afforded the manatee through listing under the Act and those provided under the MMPA.

A complete list of all references cited in this document is available, upon request, from the Jacksonville Ecological Services Field Office (see ADDRESSES section).

The primary author of this notice is staff with the U.S. Fish and Wildlife Service, Jacksonville Ecological Services Field Office (see ADDRESSES section).

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

We published a proposed rule to designate critical habitat for the Cook Inlet beluga whale in the Federal Register of December 2, 2009 (74 FR 63080). We received several requests, including from the Alaska Congressional delegation, to extend the comment period to allow the public to provide input to the designation of critical habitat and, in particular, to comment on the economic report. The Alaska Congressional delegation asked for an additional 30 days; another commenter asked for an additional 60 days. An additional 30-day comment period should allow sufficient time for responders to comment while preserving the time needed for NMFS to prepare the final rule. The original due date for receipt of public comments was scheduled to end on February 1, 2010, and today we extend the public comment period to March 3, 2010.