Prior documents in this proceeding: Notice of Hearing issued on February 5, 2007, and published in the February 7, 2007, issue of the Federal Register (72 FR 5646), and a Recommended Decision issued on May 7, 2009 and published in the May 12, 2009, issue of the Federal Register (74 FR 22112).

This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866.

The proposed amendments are based on the record of a public hearing held on February 21 and 22, 2007, in Grand Rapids, Michigan, and March 1 and 2, 2007, in Provo, Utah, to consider such amendments to the order. The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act”, and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR Part 900).

Notice of this hearing was published in the Federal Register on February 7, 2007, and contained amendment proposals submitted by the Board.

The amendments included in this decision would:

1. Amend § 930.50 of the order to authorize changing the primary reserve capacity associated with the volume control provisions of the order.

2. Amend § 930.54 of the order to authorize establishment of a minimum inventory level at which all remaining product held in reserves would be released to handlers for use as free tonnage.

3. Amend § 930.55 to establish an age limitation on product placed into reserves.

4. Amend § 930.23 to revise the nomination and election process for handler members on the Board, including revisions to conform this section to amendment of § 930.20 regarding membership affiliation requirements.

5. Amend § 930.20 to revise Board membership affiliation requirements.

6. Amend § 930.23 to update order language to more accurately reflect grower and handler participation in the nomination and election process in Districts with only one Board representative.

In addition to the proposed amendments to the order, AMS proposed to make any such additional changes as may be necessary to the order to conform to any amendments that may result from the hearing. To the extent necessary, conforming changes have been made to the amendments.

A Board proposal to revise the voting requirements necessary to approve a Board action is not recommended for adoption.

Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on May 7, 2009, filed a Recommended Decision and Opportunity to File Written Exceptions thereto by June 11, 2009.

Six exceptions were filed during the period provided. Five of the exceptions were filed by growers and processors of tart cherries, and one was filed on behalf of the Board. All of the exceptions expressed concern about Material Issue Number 6 regarding membership affiliation requirements. Five of the exceptions raised specific concerns with the changes AMS made in the Recommended Decision to the industry's proposed amendment under Material Issue Number 5 regarding the nomination and election process of Board members, and its application in conjunction with Material Issue Number 6. Two of the exceptions addressed Material Issue Number 4 regarding the proposal to change Board voting requirements. One exception addressed Material Issue Number 1 concerning changing the reserve capacity through informal rulemaking, Material Issue Number 2 concerning establishment of a minimum inventory level at which reserve product would be released to handlers as free tonnage, and Material Issue Number 3 concerning placing an age limitation on reserve products. The specific issues raised in these exceptions are discussed in the Findings and Conclusions; Discussions of Exceptions section of this document.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group action of essentially small entities for their own benefit.

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

There are approximately 40 handlers and processors of tart cherries subject to regulation under the order and approximately 900 producers of tart cherries in the regulated area. A majority of the producers, processors, and handlers are considered small entities according to the SBA's definition.

The geographic region regulated under the order covers the States of Michigan, New York, Oregon, Pennsylvania, Utah, Washington, and Wisconsin. Acreage devoted to tart cherry production in the regulated area has declined in recent years. According to data presented at the hearing, bearing acreage in 1987-88 totaled 50,050 acres; by 2006-2007 it had declined to 37,200 acres. Michigan accounts for 74 percent of total U.S. bearing acreage with 27,700 bearing acres. Utah is second, with a reported 2,800 acres, or approximately eight percent of the total. The remaining States' acreage ranges from 700 to 2,000 acres.

Production of tart cherries can fluctuate widely from year to year. The magnitude of these fluctuations is one of the most pronounced for any agricultural commodity in the United States, and is due in large part to weather related conditions during the bloom and growing seasons. This fluctuation in supplies presents a marketing challenge for the tart cherry industry because demand for the product is relatively static. In addition, the demand for tart cherries is inelastic, which means a change in the supply has a proportionately larger change in the price level.

Authorities under the order include volume regulation, promotion and research, and grade and quality standards. Volume regulation is used under the order to augment supplies during short supply years with product placed in reserves during large supply years. This practice is intended to reduce the annual fluctuations in supplies and corresponding fluctuations in prices.

The Board is comprised of representatives from all producing areas based on the volume of cherries produced in those areas. The Board consists of a mix of handler and grower members, and a member that represents the public. Board meetings where regulatory recommendations and other decisions are made are open to the public. All members are able to participate in Board deliberations, and each Board member has an equal vote. Others in attendance at meetings are also allowed to express their views.

The Board appointed a subcommittee to consider amendments to the marketing order. The subcommittee met several times for this purpose, and ultimately recommended several amendments to the order. The Board subsequently requested that USDA conduct a hearing to consider the proposed amendments. The views of all participants were considered throughout this process.

In addition, the hearing to receive evidence on the proposed amendments was open to the public and all interested parties were invited and encouraged to participate and express their views.

The proposed amendments are intended to provide additional flexibility in administering the volume control provisions of the order, and to update Board nomination, election, and membership requirements. The amendments are intended to improve the operation and administration of the order. Record evidence indicates the proposals are intended to benefit all producers and handlers under the order, regardless of size.

This amendment would revise § 930.50 of the order to authorize changing the primary reserve capacity associated with the volume provisions of the order through informal rulemaking. Changing the reserve capacity currently requires amendment of the order through the formal rulemaking process.

The order establishes a fixed quantity of 50-million pounds of tart cherries and tart cherry products that can be held in the primary reserve. Any reserve product in excess of the 50-million-pound limitation must be placed in the secondary reserve.

Free tonnage product can be sold to any market outlet, but most shipments are sold domestically, which is considered the primary market. Reserve product can be used only in specific outlets which are considered secondary markets. These secondary markets include development of export markets, new product development, new markets, and government purchases.

When the order was promulgated, a 50-million-pound limitation was placed on the capacity of the primary reserve. Proponents of the current order proposed a limitation on the quantity of product that could be placed into the primary reserve. That limitation was incorporated into the order, and can only be changed through the formal rulemaking process.

Economic data presented when the order was promulgated indicated that a reserve program could benefit the industry by managing fluctuating supplies. Witnesses at the February and March 2007 hearing indicated the order has been successful in this regard. However, the record indicated that the order could be more flexible in allowing modifications to the 50-million-pound limitation should conditions warrant such a change in the future.

If the reserve capacity was changed, costs associated with storing product in reserves could also change. In addition, to the extent such a change could affect supplies in the marketplace; returns to both growers and handlers could also be affected.

Any Board recommendation to change the reserve capacity would be required to be implemented through the informal rulemaking process. As part of the informal rulemaking process, USDA expects that any Board recommendation will include an analysis of the pertinent factors and issues, including the impact of a proposed regulation on producers and handlers. During that process, the Board would recommend a change to USDA, and only if the recommendation was accompanied by adequate justification would USDA proceed with the change.

This amendment would revise § 930.54 of the order to provide the Board with the authority to establish a minimum inventory level at which reserves would be released and made available to handlers as free tonnage. This amendment would allow the Board to clear out the primary reserve and subsequently the secondary reserve when a specified minimum inventory level of tart cherries is reached. The specified minimum level would be established through the informal rulemaking process.

Under current order provisions, handlers cannot access the secondary reserve until the primary reserve is empty. Based on current language of the order, one handler who has not completely disposed of or otherwise fulfilled its reserve obligation can prevent access to the secondary reserve.

The amendment would allow the Board to clear out the primary reserve when inventory levels are at a minimum level in order to provide the industry access to secondary reserve inventories.

If the amendment were implemented, costs to both handlers and the Board could be reduced. Handlers incur costs in maintaining reserves. According to the record, these costs include the cost of storage, which can be in the range of $.01 per pound per month. Handlers also incur costs associated with tracking their own inventory levels. Witnesses stated that when inventory levels reach a minimal amount the costs of tracking inventory outweigh the benefit from carrying inventory in the primary reserve.

A significant portion of the Board staff's time is directed at tracking reserve inventory maintained at handlers' facilities. Hearing witnesses testified that while it is difficult to quantify the exact value of the Board staff's time to conduct these activities, the time could be better spent on other industry issues, and it is unnecessary to track minimal levels of inventory.

The amendment, if implemented, could have a positive impact on the market. As inventories are released from the reserves, products could be sold, generating revenue for the industry.

If implemented, this amendment is expected to reduce costs to handlers and the Board, thus having a positive economic impact.

This amendment would revise § 930.55 to require that products placed in reserves must have been produced in the current or immediately preceding two crop years. If implemented, this amendment would allow the Board to place an age limit on products carried in the reserve. The purpose of the amendment would be to help ensure that products of saleable quality are maintained in reserve inventories.

Witness supported the amendment by stating that it would add credibility to product quality for all products carried in the reserve. Currently, handlers can carry products they have no intention of selling just to meet their reserve obligation. This amendment would require handlers to rotate product in their reserve inventory, thus preventing them from maintaining the same product in the reserve year after year. Product held in inventory tends to deteriorate over time. When reserve product is ultimately released for sale to meet market demand, this proposed amendment would help ensure the reserve product available is in saleable condition and can satisfy the market's needs. Assuring product is available to satisfy the market helps to foster long-term market stability.

In terms of costs, handlers may experience some minimal costs associated with periodically rotating product through their reserve inventory. It would be difficult to estimate such costs because they would vary depending upon each handler's operation. To the extent costs would be increased, they would be proportionate to each handler's share of the entire industry's reserve inventory. Each handler's reserve inventory obligation is based on the handler's share of the total crop handled. Thus, small handlers would not be disproportionately burdened.

It is anticipated that the benefits of providing a good quality product in reserves to ultimately supply markets when needed would outweigh any costs associated with implementation of this amendment.

This amendment relates to nomination and election of Board members under § 930.23 of the order. It would require a handler to receive support from handlers that handled at least five percent of the average production of tart cherries in the applicable district in order to be a candidate and to be elected by the industry and recommended to the Secretary for Board membership. Under the current order, there is no accounting for handler volume in the nomination and balloting process. Each handler is entitled to one equal vote. This proposal would continue to allow each handler to have one vote, but would also require handler candidates to be supported by handlers representing at least five percent of the average production in the applicable district to be eligible to run for a Board position and to be elected by the industry for recommendation to the Secretary. This would help to ensure that handler members on the Board represent the interests of handlers in their district that account for at least a minimal percentage of the volume in the district. The amendment proposed by the Board was modified by AMS. The amendment as modified by AMS would not apply the five percent support requirements to candidates whose potential election could prevent a sales constituency conflict from occurring, as discussed under amendment number five. The modification would help to ensure that all qualified handlers could participate in the election process.

This proposed amendment is not anticipated to have a significant economic impact on small businesses. It only affects the nomination and election criteria for membership on the Board by adding volume as an element of support to help ensure that Board membership reflects the interests of its constituency. All qualified handlers, regardless of size, will continue to be able to participate in the nomination and election process. The process would continue to allow for both small and large handlers to be represented on the Board.

This amendment would revise § 930.20 to allow more than one Board member to be affiliated with the same sales constituency from the same district, if such a conflict cannot be avoided.

Currently, § 930.20 does not allow more than one Board member to be affiliated with the same sales constituency from the same district under any circumstances. The purpose of this provision is to prevent any one sales constituency from having a controlling influence on Board issues and actions. However, a situation occurred in District 7, Utah, where this particular provision of the order did not allow the district from having two representatives on the Board, as it was entitled to under § 930.20 (b) of the order. In that situation, the only candidates willing to serve on the Board from Utah were affiliated with the same sales constituency. Thus Utah was only able, under the marketing order rules, to seat one of the two Board representatives it was entitled to.

The proposed amendment is designed to prevent this problem from occurring in the future by allowing more than one Board member affiliated with the same sales constituency to represent a district, if such a sales constituency conflict cannot be avoided. The hearing record is clear that the sales constituency provision should not prevent a district from having its allocated number of seats on the Board if there are eligible candidates willing to serve on the Board.

This amendment is not expected to have an economic impact on growers or handlers. It relates to representation on the Board, and is intended to help ensure each area covered under the order has the opportunity to achieve its allocated representation on the Board.

This amendment to § 930.23 would revise and update order language to more accurately reflect grower and handler participation in the nomination and election process in districts with only one Board representative.

Sections 930.23(b)(5) and (c)(4) specifically reference Districts 5, 6, 8, and 9 in regard to the nomination and election process. Those were the districts entitled to one Board seat when the order was initially promulgated. However, districts that are entitled to one Board seat have changed over time due to shifts in production. Amending §§ 930.23(b)(5) and (c)(4) by removing the specific references to Districts 5, 6, 8, and 9 and replacing it with generic language to cover any district that is entitled to only one Board representative based on the representative calculation established in § 930.20 would update order language to better reflect the constantly changing tart cherry industry.

This amendment updates order language to remove incorrect references to district representation in the event production shifts occur. It has no economic impact on handlers, growers, or any other entities.

Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impacts of the proposed amendments to the order on small entities. The record evidence is that some of the proposed amendments may result in some minimal cost increases while others will result in cost decreases. To the extent there are any cost increases, the benefits of the proposed changes are expected to outweigh the costs. In addition, changes in costs as a result of these amendments would be proportional to the size of businesses involved and would not unduly or disproportionately impact small entities. The informational impact of proposed amendments is addressed in the Paperwork Reduction Act discussion that follows.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. These amendments are intended to improve the operation and administration of the order to the benefit of the industry.

A Board proposal to change the voting requirements necessary to approve a Board action is not being recommended for adoption.

Information collection requirements for Part 930 are currently approved by the Office of Management and Budget (OMB), under OMB Number 0581-0177, Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Implementation of these amendments would not trigger any changes to those requirements. It is possible that a change to the reporting requirements may occur in the future if the Board believes it would be necessary to assist in program compliance efforts. Should any such changes become necessary in the future, they would be submitted to OMB for approval.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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.

The amendments to Marketing Order 930 proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United Sates in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.

The material issues, findings and conclusions, rulings, and general findings and determinations included in the Recommended Decision set forth in the May 12, 2009, issue of the Federal Register (74 FR 22112) are hereby approved and adopted subject to the following additions and modifications.

Based on the briefs and exceptions filed, the findings and conclusions in Material Issue Number 1 of the Recommended Decision are amended by adding the following four paragraphs to read as follows:

One exception to the Recommended Decision concerning Material Issue Number 1 was filed by a grower and processor of tart cherries. The exception did not support amending the order to authorize changing the capacity of the primary reserve pool through informal rulemaking. The exception stated that when the order was promulgated, a 50 million-pound limitation was established for the primary reserve, and that limitation was adequately justified at the time. Conversely, the proposed amendment was not adequately justified through documentation and economic testimony.

The proposed amendment in itself would not make a change to the reserve capacity. It would change the process by which a change to the reserve capacity could be made. Under the proposed amendment, such a change could be made through the informal rulemaking process rather than the formal rulemaking process that is currently required.

The hearing record supports that circumstances and conditions in the industry change over time which could warrant a change in the reserve capacity. If the proposed amendment is adopted and such circumstances occur, a change could be made through informal rulemaking. During that process, the Board would recommend a change to USDA, and only if the recommendation was accompanied by adequate justification would USDA proceed with the change.

The record supports allowing a change to the reserve capacity to be made through informal rulemaking rather than formal rulemaking. Thus, the exception concerning Material Issue Number 1 is denied.

Based on the briefs and exceptions filed, the findings and conclusions in Material Issue Number 2 of the Recommended Decision are amended by adding the following two paragraphs to read as follows:

One exception to the Recommended Decision concerning Material Issue Number 2 was filed by a grower and processor of tart cherries. The exception did not support amending the order to authorize establishing a minimum level at which cherries in the reserve would be released. The exception indicated that adequate justification for the proposed amendment was not provided. It further states that the Board did not present a reasonable definition of what the minimum level would be in order for the reserves to be released. The exception suggested that actual criteria for establishing a minimum level should be developed and incorporated into the proposed amendment.

This proposal would not establish a level at which reserves would be released. Informal rulemaking would be required to establish such a level. The Board would need to develop adequate justification in any recommendation it would make to USDA to implement a regulation that would authorize release of the reserve. The intent of the proposal is to provide additional flexibility in administering the reserve program, and could also reduce costs associated with tracking small amounts of reserve product. The record evidence indicates that these objectives may be achieved if the proposed amendment is adopted. For these reasons, the exception is denied.

Based on the briefs and exceptions filed, the findings and conclusions in Material Issue Number 3 of the Recommended Decision are amended by adding the following three paragraphs to read as follows:

One exception to the Recommended Decision concerning Material Issue Number 3 was filed by a grower and processor of tart cherries. The exception stated that the age of fruit placed in reserves is not truly a regulation of fruit quality, and that handlers should be able to place whatever product they choose in the reserve. The exception states that handlers could still place poor quality product in reserves if the amendment is adopted.

According to the record evidence, the intent of this proposed amendment is to help maintain marketable products in the reserve. When reserves are ultimately released, they need to be in a condition to satisfy market demands.

While placing an age limitation on reserve products does not guarantee a specific level of quality, the record shows that product quality deteriorates over time. Placing an age limitation on product held in reserves will reduce the likelihood that product of a deteriorated quality will be carried in handlers' reserve inventories. Based on the record evidence, the proposed amendment should be implemented and the exception is therefore denied.

Based upon the briefs and exceptions filed, the findings and conclusions in Material Issue Number 4 of the Recommended Decision are amended by adding the following five paragraphs to read as follows:

Two exceptions to the Recommended Decision were filed regarding Material Issue Number 4. One exception was filed on behalf of the Board and the other was filed by a tart cherry producer and processor.

The exception filed on behalf of the Board was opposed to the conclusion in the Recommended Decision to not adopt the amendment as proposed by the Board. The proposal would have changed the voting requirements necessary for the Board to pass any action from two-thirds of the entire Board membership to two-thirds of the members present at a meeting. According to the exception, the stringent voting requirement was originally implemented because of a perception that an entity or entities or any particular dominant district in terms of representation on the Board may otherwise have too large an influence on Board actions. The exception stated that due to changes in industry structure, there is no longer a dominant entity or district in terms of Board representation, and a relaxation of the voting requirements would thus be appropriate. In addition, the exception stated that experience under the order has shown no evidence of control over the Board by any entity or region, and based on current industry demographics, no entity or region could gain such control. Finally, the exception states that safeguards exist under the order to protect the concerns of industry members against being adversely affected if the proposed changes to the voting requirements were adopted.

As stated in the Recommended Decision, the super-majority voting requirements were incorporated into the order to help ensure a high degree of support for issues at the Board level. These requirements were included in the order to help ensure minority interests were addressed and that the industry majority supported Board actions. These fundamentals are still relevant today. While it may be true that the industry demographics have changed since the order was promulgated, this does not establish a foundation that the current voting requirements are not working properly and should be changed. The record evidence does not show that the current voting requirements are having a negative impact on Board actions or the Board's ability to conduct business.

The other exception regarding Material Issue Number 4 expressed support for the determination in the Recommended Decision not to implement the proposed amendment.

The record supports leaving the current voting requirements under the order in place, and the exception advocating a change to the Recommended Decision by adopting Material Issue Number 4 is therefore denied.

Based upon the briefs and exceptions filed, the findings and conclusions in Material Issue Number 6 of the Recommended Decision are amended by adding the following eight paragraphs to read as follows:

Six exceptions concerning Material Issue Number 6 were received. Five of the exceptions were from tart cherry growers and processors, and one was from the Board.

Five of the exceptions expressed concerns with the interaction of Material Issue Number 6 and Material Issue Number 5 as these two issues were discussed in the Recommended Decision. The amendment proposed by the Board and discussed in Material Issue Number 5 of the Recommended Decision would revise Board membership nomination procedures. The amendment would require a handler to receive support from handler(s) that handled at least five percent of the average production of tart cherries in the applicable district in order to be eligible to participate as a candidate in an election for Board membership. The proposed amendment would also require a handler to receive support from handler(s) that handled at least five percent of the average production of tart cherries in the applicable district in order to be elected by the industry and recommended to the Secretary for selection to the Board. The amendment proposed by the Board and discussed in Material Issue Number 6 of the Recommended Decision would revise Board membership affiliation requirements to allow more than one Board member per district to be affiliated with the same sales constituency if it cannot be avoided.

The Recommended Decision included adding a provision to the proposal in Material Issue Number 5 to conform to the proposed amendment to § 930.20 (g). The added provision would not apply the five percent support requirement for Board membership candidates in instances where such a requirement would result in a sales constituency conflict. (A sales constituency conflict is considered to exist if two persons from the same district are affiliated with the same sales constituency.)

The five exceptions that expressed concern with the interaction of Material Issues 5 and 6 were opposed to the provisions added in the Recommended Decision regarding not applying the five percent support requirement in certain instances. These exceptions stated that the five percent support requirement should apply in all situations, regardless of potential sales constituency conflicts. According to these exceptions, having support from handlers with a minimum of five percent of the volume of cherries handled in the district requirement is more important than avoiding a potential sales constituency conflict. These exceptions further state that avoiding a sales constituency conflict is not as big an issue now as it was when the order was promulgated because the structure of the industry has changed and one sales constituency could no longer gain control of the Board. The exceptions also state that this amendment should not apply in one District but not another.

One exception expressed the view that the proposed amendment to revise Board membership affiliation requirements to allow more than one Board member per district to be from the same sales constituency if it cannot be avoided, should only apply in situations that are identical to those currently prevailing in Utah. In Utah, a situation occurred where there were no candidates from a different sales constituency that were willing to serve on the Board. Consequently, Utah (District 7) was unable to fill a Board position for a period of time.

One of the exceptions indicated that if the five percent support requirement was not applied in certain instances, it would preclude other handler candidates from seeking nomination and election if their election would present a sales constituency conflict.

The Recommended Decision took into account both the merits of the proposed amendment requiring Board candidates to receive support from handlers handling at least five percent of the volume in the District to be nominated and elected to the Board and also the merits of the proposed amendment to allow a sales constituency conflict to exist in Board membership if such a situation cannot be avoided, in the interest of each District achieving its allocated representation on the Board. The added provision in Material Issue Number 5 recognizes the importance of both issues. The changes would not preclude any qualified handler from seeking his or her candidacy for nomination or election to the Board. Any qualified handler would be able to seek a Board position, including those who may present a sales constituency conflict with an existing Board member. The effect of the changes to the proposal would relieve those handlers that do not present a sales constituency conflict from the five percent support requirements. This would provide opportunity to avoid a sales constituency conflict among Board members if the handler without a sales constituency conflict were to win the election. In addition, this requirement would be the same in all districts. Although it currently appears to be an issue only in Utah at this time, as the record indicates and the exceptions note, changes and affiliations in the industry occur over time. It could possibly be an issue in another district in the future, and if so, it would be applied the same in all instances.

In order to address the issues raised as a result of the interaction of the provisions in proposals in Material Issue Numbers 5 and 6, and to maintain an open election process that allows all qualified handler candidates to participate, USDA believes the proposed provisions as presented in the Recommended Decision are appropriate. The exceptions are therefore denied.

In arriving at the findings and conclusions and the regulatory provisions of this decision, the exceptions to the Recommended Decision were carefully considered in conjunction with the record evidence. To the extent that the findings and conclusions and the regulatory provisions of this decision are at variance with the exceptions, such exceptions are denied.

Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions.

It is hereby ordered, that this entire decision be published in the Federal Register.

It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR part 900.400-407) to determine whether the annexed order amending the order regulating the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin is approved or favored by growers and processors, as defined under the terms of the order, who during the representative period were engaged in the production or processing of tart cherries in the production area.

The representative period for the conduct of such referendum is hereby determined to be July 1, 2008 through June 30, 2009.

The agents of the Secretary to conduct such referendum are hereby designated to be Kenneth G. Johnson and Patricia A. Petrella, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Suite 2A04, Unit 155, 4700 River Road, Riverdale, MD 20737; telephone: (301) 734-5243, Fax: (301) 734-5275; E-mail Kenneth.Johnson@ams.usda.gov or Patricia.Petrella@ams.usda.gov.

The findings and determinations hereinafter set forth are supplementary to the findings and determinations that were previously made in connection with the issuance of the marketing agreement and order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended, (7 U.S.C. 601-612), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon proposed amendment of Marketing Agreement and Order No. 930 (7 CFR part 930), regulating the handling of tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:

(1) The marketing agreement and order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

(2) The marketing agreement and order, as amended, and as hereby proposed to be further amended, regulate the handling of tart cherries grown in the production area in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing agreement and order upon which a hearing has been held;

(3) The marketing agreement and order, as amended, and as hereby proposed to be further amended, are limited in their application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

(4) The marketing agreement and order, as amended, and as hereby proposed to be further amended, prescribe, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of tart cherries grown in the production area; and

(5) All handling of tart cherries grown in the production area as defined in the marketing agreement and order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

It is therefore ordered, That on and after the effective date hereof, all handling of tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin shall be in conformity to, and in compliance with the terms and conditions of the said order as hereby proposed to be amended as follows:

The provisions of the proposed marketing agreement and order amending the order contained in the Recommended Decision issued on May 7, 2009, and published in the Federal Register on May 12, 2009, will be and are the terms and provisions of this order amending the order and are set forth in full herein.

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-2010-0027; Directorate Identifier 2008-NM-204-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 Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, has issued French Airworthiness Directive 2001-605(AB), dated December 12, 2001 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

Sicma Aero Seat has issued Service Bulletin 90-25-012, Issue 4, dated December 19, 2001, including Annex 1, Issue 1, dated July 9, 2001. 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 70,073 seats on 163 products of U.S. registry. We also estimate that it would take 1 work-hour per seat to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $0 per seat. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $5,605,840, or $80 per seat.

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:

On October 20, 1999, the Commission issued its final Rule1 pursuant to the Children’s Online Privacy Protection Act, 15 U.S.C. 6501, et seq, which became effective on April 21, 2000.2 The Rule requires certain website operators to post privacy policies, provide notice, and obtain parental consent prior to collecting, using, or disclosing personal information from children. The Rule contains a “safe harbor” provision enabling industry groups or others to submit to the Commission for approval self-regulatory guidelines that would implement the Rule’s protections.3

Pursuant to Section 312.10 of the Rule, iSAFE has submitted proposed self-regulatory guidelines to the Commission for approval. The full text of the proposed guidelines is available on the Commission’s website, at (www.ftc.gov/bcp/isafesafeharborapplication.pdf).

The Commission is seeking comment on various aspects of the proposed guidelines, and is particularly interested in receiving comment on the questions that follow. These questions are designed to assist the public and should not be construed as a limitation on the issues on which public comment may be submitted. Responses to these questions should cite the numbers and subsection of the questions being answered. For all comments submitted, please provide any relevant data, statistics, or any other evidence, upon which those comments are based.

1. Please provide comments on any or all of the provisions in the proposed guidelines. For each provision commented on please describe (a) the impact of the provision(s) (including any benefits and costs), if any, and (b) what alternatives, if any, iSAFE should consider, as well as the costs and benefits of those alternatives.

2. Do the provisions of the proposed guidelines governing operators’ information practices provide “the same or greater protections for children” as those contained in Sections 312.2-312.8 of the Rule?4 Where possible, please cite the relevant sections of both the Rule and the proposed guidelines.

3. Are the mechanisms used to assess operators’ compliance with the guidelines effective?5 If not, please describe (a) how the proposed guidelines could be modified to satisfy the Rule’s requirements, and (b) the costs and benefits of those modifications.

4. Are the incentives for operators’ compliance with the guidelines effective?6 If not, please describe (a) how the proposed guidelines could be modified to satisfy the Rule’s requirements, and (b) the costs and benefits of those modifications.

5. Do the guidelines provide adequate means for resolving consumer complaints? If not, please describe (a) how the proposed guidelines could be modified to resolve consumer complaints adequately, and (b) the costs and benefits of those modifications.

All persons are hereby given notice of the opportunity to submit written data, views, facts, and arguments addressing the proposed self-regulatory guidelines. The Commission invites written comments to assist it in ascertaining the facts necessary to reach a determination as to whether to approve the proposed guidelines. Written comments must be received on or before March 1, 2010, and may be submitted electronically or in paper form. Comments should refer to “iSAFE Safe Harbor Proposal, P094504” to facilitate the organization of comments. Please note that your comment - including your name and your state - will be placed on the public record of this proceeding, including on the publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).

Because comments will be made public, they should not include any sensitive personal information, such as any individual’s Social Security number; date of birth; driver’s license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential. . . ,” as provided in Section 6(f) of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c).7

Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink: (https://public.commentworks.com/ftc/iSAFEsafeharbor) (and following the instructions on the web-based form). To ensure that the Commission considers an electronic comment, you must file it on the web-based form at the weblink (https://public.commentworks.com/ftc/iSAFEsafeharbor). If this document appears at (http://www.regulations.gov/search/Regs/home.html#home), you may also file an electronic comment through that website. The Commission will consider all comments that regulations.gov forwards to it. You may also visit the FTC Website at (http://www.ftc.gov) to read the document and the news release describing it.

A comment filed in paper form should include the “iSAFE Safe Harbor Proposal, P094504” reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex E), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.

The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC website, to the extent practicable, at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of discretion, the Commission makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC Website. More information, including routine uses permitted by the Privacy Act may be found in the FTC’s privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).

By direction of the Commission.

Background

Federal, State, and local government programs seek to help elderly or disabled individuals maintain their independence by funding home health care and other personal services. See, for example, Deficit Reduction Act of 2005, Public Law 109-171, se. 6071, 120 Stat. 4, 102-110 (2006) (authorizing the Secretary of Health and Human Services to, among other things, award grants to states to “[i]ncrease the use of home and community-based, rather than institutional, long-term care services.”) The government agencies that administer the programs seek to assist the service recipients with employment tax compliance by helping the service recipients to designate agents to report, file, and pay employment taxes on their behalf. The IRS and the Treasury Department are proposing changes to the regulations under section 3504, the section under which a third party can be authorized to act as an agent for an employer, to permit designated agents to provide comprehensive assistance to these service recipients who are employers.

Employers are generally required to withhold income tax and Federal Insurance Contributions Act (FICA) taxes from their employees' wages under sections 3402(a) and 3102(a), respectively, and are separately liable for the employer's share of FICA taxes and Federal Unemployment Tax Act (FUTA) taxes under sections 3111 and 3301, respectively (collectively referred to herein as “employment taxes”). Sections 3102(b), 3111, 3301, and 3403 provide that the employer is the person liable for the withholding and payment of employment taxes; additionally, the employer is required to make tax deposits, file employment tax returns, and file and furnish Forms W-2, Wage and Tax Statement, to employees (collectively referred to herein as “employment tax obligations”). An employer is generally defined as the person for whom an individual performs services as an employee. See Sections 3121(d), 3306(a), and 3401(d).

FUTA tax is imposed under section 3301 on each employer in an amount equal to a percentage of wages paid by the employer with respect to employment. FUTA tax is imposed on the employer in an amount equal to 6.2 percent of wages. Under section 3306(b), wages of an employee subject to the FUTA tax are limited to $7,000 per calendar year. Section 3302 provides for a credit against FUTA tax in the amount of contributions paid by the employer into an unemployment fund maintained during the taxable year under the unemployment law of a State. The credit is limited to an amount equal to 90 percent of the FUTA tax.

The employment tax obligations of an employer are modified with respect to domestic services provided in a private home of the employer. Employers are not required to withhold income taxes on wages paid for domestic services, but may enter into a voluntary withholding agreement to withhold income taxes from one or more domestic employees. See sections 3401(a)(3) and 3402(p). An employer is not liable for FICA taxes with respect to cash wages for domestic services as long as the cash wages are less than an applicable dollar threshold amount, which is adjusted annually. Sections 3121(a)(7)(B) and 3121(x). When the cash wages equal or exceed the threshold amount, all of the cash wages (including amounts below the threshold) paid to that employee by the employer are subject to FICA taxes. For example, the FICA wage threshold for domestic services for 2009 is $1,700. This threshold applies separately to each employer with respect to each employee. An employer is liable for FUTA taxes with regard to domestic services if the employer paid aggregate wages of $1,000 or more (for all domestic employees) in any calendar quarter in the current or prior year. Section 3306(c)(2).

Section 3504 of the Code authorizes the Secretary of the Treasury to promulgate regulations to authorize an agent to perform certain specified acts required of employers. Under section 3504, all provisions of law (including penalties) applicable with respect to employers are applicable to the agent and remain applicable to the employer. Accordingly, both the agent and employer are liable for the employment taxes and penalties associated with the employer's employment tax obligations undertaken by the agent. Section 31.3504-1 of the Employment Tax Regulations provides that the IRS may authorize an agent to undertake the employment tax obligations of an employer with respect to income tax withholding and FICA taxes. The agent is required to file only one return for each tax return period using the agent's own employer identification number (EIN) regardless of the number of employers for whom the agent acts. The current regulations do not authorize an agent to undertake the employment tax obligations of an employer with respect to the FUTA tax. Thus, an authorized agent can act on behalf of the employer for income tax withholding and FICA tax purposes, but the employer must continue to meet its employment tax obligations with respect to FUTA tax.

Federal, State, and local governments fund programs to provide elderly or disabled individuals with services to assist them with health care or other personal needs in their homes or communities. Following an evolution in policy that seeks to empower the individuals receiving services to have autonomy, these programs generally give the service recipients discretion in selecting the service providers and directing their activities. See Deficit Reduction Act of 2005 section 6071(d)(2)(C)(ii), 120 Stat. at 108 (providing that the Secretary of Health and Human Services shall give preference when awarding grants to state applications proposing to provide eligible individuals with the opportunity to receive home and community-based long-term care services as self-directed services); also see “Roadmap to Medicaid Reform,” Centers for Medicare and Medicaid Services, available at http://www.cms.hhs.gov/smdl/downloads/Rvltcneeds.pdf. The programs authorize the use of certain intermediaries to serve as agents to disburse payments to service providers on the service recipient's behalf. The federal, State, or local government agencies that administer these programs screen intermediaries before they are entrusted with funds to pay for the services. Intermediaries can be public or private entities. Many are nonprofit organizations. The IRS addressed questions with regard to certain intermediaries working with state or local government agencies in previous guidance. See Notice 2003-70, 2003 CB 916. See § 601.601(d)(2).

The service recipient is generally the employer of the individuals providing the services for employment tax purposes. However the Service recognizes that there are some government programs under which parents, grandparents, or guardians who are engaged in providing care for a disabled child or grandchild receive funding that do not give rise to an employment relationship between the service recipient and the care provider. Although the services generally constitute domestic services under section 3401(a)(3) such that income tax withholding is not required, FICA tax and FUTA tax must still be paid subject to the applicable thresholds, and some service recipients and their service providers may agree to voluntarily withhold income tax under section 3402(p). In recent years, many home care service recipients have applied to designate the intermediary that arranges to pay their service providers as an agent under section 3504 so that the intermediary can withhold, report, and pay income tax withholding and FICA tax on the service recipient's behalf. Designating these intermediaries as agents reduces the administrative burden on the service recipient who may not otherwise have an obligation to report, file, or pay employment taxes. The intermediaries have access to training in compliance with employment tax requirements and have the payroll information from the payments they make to the service providers. An intermediary that is designated as an agent can efficiently handle reporting, filing, and paying income tax withholding and FICA on behalf of multiple service recipients on a single return. A service recipient can complete the application to designate the intermediary as agent at the time the recipient enrolls with the intermediary.

Under the current regulations, a service recipient can designate an intermediary as agent to handle income tax withholding and FICA but cannot designate an intermediary as agent to pay FUTA tax and file FUTA returns. As a result, separate FUTA returns must be prepared for thousands of individual service recipients reporting small amounts of wages and FUTA tax.

These proposed regulations would amend the current regulations to allow a home care service recipient to designate an agent under section 3504 to report, file, and pay all employment taxes, including FUTA. This change will allow an intermediary to file a single FUTA return on behalf of multiple home care service recipients as the intermediary does currently with respect to income tax withholding and FICA.

Specifically, the proposed regulation would amend the employment tax regulations under section 3504 to provide that the IRS may authorize a party to act as agent on behalf of employers who are home care service recipients with respect to FUTA taxes imposed on wages paid for home care services, provided that the party has been authorized to act as an agent for those home care service recipients for income tax withholding and FICA tax purposes. The agent is permitted to act for FUTA tax purposes only on behalf of employers who are home care service recipients, and not for any other type of employer on whose behalf the agent is authorized to act for income tax withholding and FICA tax purposes. Additionally, the agent is permitted to act as an agent for FUTA tax purposes only with respect to wages paid for home care services rendered to the home care service recipient.

These regulations propose to define the term home care service recipient as an individual who is an enrolled participant in a program administered by a Federal, State, or local government agency that provides Federal, State, or local government funds to pay, in whole or in part, for the provision of home care services, as defined in the proposed regulations. A participant qualifies as a home care service recipient while enrolled in such a program and until the end of the calendar year in which the participant ceases to be enrolled in the program. In all such programs, intermediaries who are engaged to assist beneficiaries to receive and distribute funds on the beneficiaries' behalf are reviewed and approved by a state or local government agency.

These regulations propose to define home care services to include health care and personal attendant care services rendered to a home care service recipient in his home or local community. Services provided outside the home care service recipient's private home may qualify as home care services for purposes of these regulations even if the services do not qualify as domestic service in a private home of the employer for purposes of sections 3121(a)(7), 3306(c)(2), and 3401(a)(3), so long as the services are provided within the service recipient's local community.

Because section 3504 provides that all provisions of law applicable to an employer apply to the agent, the agent can report on its aggregate FUTA tax return the state unemployment contributions paid into a state unemployment fund on the home care service recipient's behalf as a credit under section 3302 against the FUTA tax. The credit can be reported by the agent regardless of whether the state unemployment contributions are made under the name and state identifying number of the home care service recipient or the agent.

These regulations also propose amendments to modify the existing regulations under section 3504 to be consistent with the organizational structure of the IRS and to update the citation to the Internal Revenue Code of 1986.

These regulations are proposed to apply to wages paid on or after January 1 of the calendar year following the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register. Taxpayers may rely on these proposed regulations for guidance pending the issuance of final regulations. Additionally, pursuant to section 7805(b)(7), taxpayers may apply these proposed regulations to all taxable years for which a valid designation as an agent has been in effect under § 31.3504-1(a) of the Employment Tax Regulations. Thus, prior to publication of a Treasury decision adopting these rules as final regulations, any party already authorized under section 3504 to serve as an agent for a home care service recipient, as defined in the proposed regulations, or with an application pending, will not need to file any additional application in order to expand the scope of the agency to cover FUTA taxes.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written or electronic comments that are submitted timely to the IRS. The Treasury Department and the IRS specifically request comments on the clarity of the proposed regulations and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing will be scheduled and held upon written request by any person who submits written comments on the proposed regulation. If a public hearing is scheduled, notice of the time and place for the hearing will be published in the Federal Register.

The principal author of these proposed regulations is Selvan Boominathan, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), Internal Revenue Service. However, personnel from other offices of the IRS and Treasury participated in their development.

Accordingly, 26 CFR part 31 is proposed to be amended as follows:

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2009-1021), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (http://www.regulations.gov), or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand delivery, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rules” and insert “USCG-2009-1021” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2009-1021” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES. Please explain why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The Ferry Street Bridge at mile 0.7, across the Quinnipiac River has a vertical clearance in the closed position of 25 feet at mean high water and 31 feet at mean low water.

The Grand Avenue Bridge at mile 1.3, across the Quinnipiac River has a vertical clearance in the closed position of 9 feet at mean high water and 15 feet at mean low water.

The Chapel Street Bridge at mile 0.4, across the Mill River has a vertical clearance of 7 feet at mean high water and 13 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.213.

The City of New Haven, the owner of the bridges, requested a change to the drawbridge operation regulations for the Ferry Street Bridge across Quinnipiac River at mile 0.7, the Grand Avenue Bridge across the Quinnipiac River at mile 1.3, and the Chapel Street Bridge at mile 0.4, across the Mill River, all at New Haven, Connecticut.

During the past four years the Ferry Street Bridge has undergone a major rehabilitation. During the rehabilitation project the movable spans were removed or left in the open position at various times allowing navigation to pass at all times.

Now that the Ferry Street Bridge is fully operational again, the bridge owner would like to change the drawbridge operation schedule for all its bridges, the Ferry Street Bridge, the Grand Avenue Bridge and the Chapel Street Bridge, to help reduce the burden of crewing these bridges during time periods when there have been few requests to open the bridges.

The waterway users are seasonal recreational craft, commercial fishing, and construction vessels.

The existing drawbridge operation regulation listed at 33 CFR 117.213, authorizes a roving crew concept that requires the draw of the Ferry Street Bridge to open on signal from October 1 through April 30, between 9 p.m. and 5 a.m. unless the draw tender is at the Grand Ave or Chapel Street bridges, in which case, a delay of up to one hour in opening is permitted.

The bridge owner would like to extend the above roving crew concept to be in effect year round.

As a result, the Coast Guard implemented a temporary test deviation (74 FR 27249) on June 9, 2009, to test the proposed changes to the drawbridge operation schedule in order to help us determine whether a permanent change to the schedule would satisfactorily accomplish the bridge owners goal and also continue to meet the reasonable needs of navigation.

The test period was in effect from May 1, 2009 through October 26, 2009. Satisfactory results were received from the test insofar as there were no adverse impacts to navigation. In addition, we received no objection to the operation schedule during or after the test period ended. As a result of the successful test, we are proposing to permanently change the drawbridge regulations for the three bridges.

The operation regulation schedule for the Tomlinson Bridge, which is owned by the Connecticut Department of Transportation, will not be changed by this action and will continue to operate as listed in the existing regulation.

Under this proposed rule the Ferry Street Bridge, the Grand Avenue Bridge, and the Chapel Street Bridge would operate as follows:

The Ferry Street Bridge across Quinnipiac River at mile 0.7, would open on signal for all marine traffic; except that, from 7:30 a.m. to 8:30 a.m. and 4:45 p.m. to 5:45 p.m., weekdays except Federal holidays, the draw need not be opened for the passage of vessel traffic. From 9 p.m. to 5 a.m., the draw would open on signal if at least a one hour advance notice is given to the draw tender at the Chapel Street Bridge by calling (203) 946-7618.

The Grand Avenue Bridge across Quinnipiac River at mile 1.3, would open on signal for all marine traffic; except that, from 7:30 a.m. to 8:30 a.m. and 4:45 p.m. to 5:45 p.m., weekdays except Federal holidays, the draw need not be opened for the passage of vessel traffic. From 9 p.m. to 5 a.m. the draw would open on signal if at least a one hour advance notice is given to the draw tender at the Chapel Street Bridge by calling (203) 946-7618.

The Chapel Street Bridge across the Mill River at mile 0.4, would open on signal for all marine traffic; except that, from 7:30 a.m. to 8:30 a.m. and 4:45 p.m. to 5:45 p.m., weekdays except Federal holidays, the draw need not be opened for the passage of vessel traffic. From 9 p.m. to 5 a.m. the draw would open on signal if at least a one hour advance notice is given to the draw tender by calling (203) 946-7618.

Under the existing regulation all the above bridges are allowed to remain closed from noon to 12:15 and from 12:45 to 1 p.m. in addition to the morning and afternoon rush hour time periods. The noon time closure periods, noon to 12:15 and 12:25 to 1 p.m., will be removed from all the above bridges, except the Tomlinson Bridge.

The Coast Guard is also removing obsolete language from the regulation as part of this action. Paragraphs (4)(b) through (4)(f) shall be removed because they are now listed under Subpart A—General Requirements, § 117.31 and § 117.15, and are redundant as a result.

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

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This conclusion is based upon the fact that we tested the above drawbridge operation schedule and found that it met the reasonable needs of navigation.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This action will not have a significant economic impact on a substantial number of small entities for the following reasons. A test period was in effect from May 1, 2009 through October 26, 2009. Satisfactory results were received from the test insofar as there were no adverse impacts to navigation. In addition, we received no objection to the operation schedule during or after the test period ended and found that the operation schedule met the reasonable needs of navigation.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Commander (dpb), First Coast Guard District, Bridge Branch, One South Street, New York, NY 10004. The telephone number is (212) 668-7165. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

The jaguar, a large member of the cat family (Felidae), is an endangered species that currently occurs from southern Arizona and New Mexico to southern South America. Jaguars in the United States are part of a population, or populations, that occur in Mexico. Below we present a summary of relevant information we used in making our determination that designating critical habitat in the United States for the jaguar is prudent. For more information regarding all aspects of the jaguar, refer to documents posted on our jaguar webpage (http://www.fws.gov/southwest/es/arizona/Jaguar.htm), and Jaguar Conservation Team documents and notes (www.azgfd.gov/w_c/es/jaguar_management.shtml), and the literature cited there.

Jaguars in the United States historically occurred in California, Arizona, New Mexico, Texas, and possibly Louisiana (62 FR 39147; July 22, 1997). The last confirmed jaguar sightings in California, Texas, and Louisiana were in the late 1800s or early 1900s. While jaguars have been documented as far north as the Grand Canyon, sightings in the United States from 1996 to the present have occurred mainly within approximately 40 miles (mi) (64.4 kilometers (km)) of the international boundary of the United States and Mexico. Based on documented sightings in the late 20th century, occurrences in the United States at the time of the July 22, 1997, listing (62 FR 39147) were limited to southeastern Arizona and southwestern New Mexico.

Recently (1996 through 2009), four or possibly five jaguars have been documented in the United States (McCain and Childs 2008, p. 5; Service files). Of those, two jaguars were photographed in the United States in 1996: one on March 7 in the Peloncillo Mountains, located along the Arizona—New Mexico border (Glenn 1996; Brown and Lopez Gonzalez 2001, p. 6), and another on August 31 in the Baboquivari Mountains in southern Arizona (Childs 1998, p. 7; Brown and Lopez Gonzalez 2001, p. 6). In February 2006, a third jaguar was observed and photographed in Hidalgo County, New Mexico. Using camera traps, jaguars were photographed in the United States near the Arizona—Mexico border beginning in 2001, and as recently as February 2009. This survey effort resulted in the detection of the male jaguar originally observed in the Baboquivari Mountains in 1996 referred to above; and possibly a fifth jaguar that was unidentified and not determined as to sex. No females or kittens were detected as a result of this monitoring effort. Monitoring of jaguars with the use of camera traps in the United States has been geographically limited in scope (from the crest of the Baboquivari Mountains east to the San Rafael Valley and approximately 50 mi (80 km) north of the international boundary) (McCain and Childs 2008, p. 5). Therefore, we cannot make conclusions regarding the presence of other jaguars, including females and kittens, outside the scope of this monitoring effort.

We are not aware of any comprehensive rangewide population estimates for jaguars; however, Chavez and Ceballos (2006, p. 10) report the jaguar population in Mexico is estimated at less than 5,000, and Rabinowitz (as cited by Nowell and Jackson 1996, p. 121) estimated Belize's jaguar population at between 600 and 1,000 individuals. Experts reported 5,680 observations of jaguars (some of these are likely observations of the same animal) at 535 separate locations throughout the entire range during the last 10 years (Sanderson et al. 2002, p. 62). There are estimates of jaguar densities ranging from 1.7 to 4 adults per 38.6 square mi (100 square km) in Brazil, Peru, Colombia, and Mexico, with the highest density found in Belize (6-8 per 100 square km) (International Union for the Conservation of Nature (IUCN) 2008, p. 5).

Critical habitat is defined in section 3 of the Act as—(i) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (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 a species at the time it was listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the Act is no longer necessary.

Section 4(a)(3) of the Act, as amended, and its implementing regulations at 50 CFR 424.12, require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time a species is determined to be endangered or threatened. According to our regulations in the Code of Federal Regulations (CFR) at (50 CFR 424.12(a)(1)) designation of critical habitat is not prudent when one or both of the following situations exist—(1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species.

In 1972, the jaguar was listed as endangered (37 FR 6476; March 30, 1972) in accordance with the Endangered Species Conservation Act of 1969, a precursor to the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.). Under the Endangered Species Conservation Act, the Service maintained separate listings for foreign species and species native to the United States. At that time, the jaguar was believed to be extinct in the United States; thus, the jaguar was only included on the foreign species list. The jaguar's range was described as extending from the international boundary of the United States and Mexico southward to include Central and South America (37 FR 6476). On July 22, 1997, we published a final listing rule that extended endangered status for the jaguar into the United States (62 FR 39147). For more information on previous Federal actions concerning the jaguar, please refer to the July 22, 1997, final listing rule (62 FR 39147).

The July 22, 1997, listing rule included a determination that designation of critical habitat for the jaguar was not prudent (62 FR 39147). At that time we determined that the greatest threat to the jaguar in the United States was from direct taking of individuals through shooting or other means. As a consequence, we determined that designating critical habitat for the jaguar was “not prudent,” because “publication of detailed critical habitat maps and descriptions in the Federal Register would likely make the species more vulnerable to activities prohibited under section 9 of the Act,” and therefore increase the degree of threat to the species.

In response to a complaint by the Center for Biological Diversity, we agreed to re-evaluate our 1997 prudency determination and make a new determination as to whether designation of critical habitat for the jaguar was prudent by July 3, 2006. In that subsequent finding (July 12, 2006; 71 FR 39335), we noted that since the time of our July 22, 1997, determination, the Jaguar Conservation Team, Arizona Game and Fish Department, publications, and other sources routinely have given specific and general locations of jaguars that have been sighted and currently are being documented in the United States through websites, public notifications, reports, books, and meeting notes. Publishing critical habitat maps and descriptions, as part of designating critical habitat, would not result in the species being more vulnerable in the United States than it is currently. We then assessed whether designation of critical habitat would be beneficial to the species. We found that no areas in the United States meet the definition of critical habitat and, as a result, designation of critical habitat for the jaguar would not be beneficial to the species. As a result, we again determined that designation of critical habitat for the jaguar was not prudent (71 FR 39335). We did not consider designation of lands outside of the United States in this analysis, because, under the Act's implementing regulations, critical habitat cannot be designated in foreign countries (50 CFR 424.12(h)).

The Center for Biological Diversity again challenged the Service's decision that critical habitat was not prudent for the jaguar. On March 30, 2009, the United States District Court for the District of Arizona (Court) issued an opinion in Center for Biological Diversity v. Kempthorne, CV 07-372-TUC JMR (Lead) and Defenders of Wildlife v. Hall, CV08-335 TUC JMR (Consolidated) (D. Ariz., Mar. 30, 2009) that set aside our previous prudency determination and required that we issue a new determination as to “whether to designate critical habitat,” i.e., whether such designation is prudent, by January 8, 2010. In this opinion, the Court noted, among other things, that the Service's regulations at 50 CFR 424.12(b) require that the Service “shall focus on the principal biological constituent elements within the defined area that are essential to the conservation of the species.” Such elements include consideration of space for individual and population growth, and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

As instructed by the Court, we have reevaluated our previous “not prudent” finding regarding critical habitat designation for the jaguar and the information supporting our previous findings. We have also evaluated information and analysis that has become available to us subsequent to the July 12, 2006, finding. As discussed in the Background section above, jaguars have been found in the United States in the past and may occur in the United States now or in the future. As such, there are physical and biological features that can be used by jaguars in the United States. Thus, in responding to the Court's order, and following a review of the best available information, including the ongoing conservation programs for the jaguar, we now determine that the designation of critical habitat for the jaguar would be beneficial. We also determine that designation of critical habitat will not be expected to increase the degree of threat to the species. As such, we no longer find that designation of critical habitat for the jaguar is not prudent under our regulations, and conversely, therefore determine that designation is prudent. We discuss below how we intend to proceed with developing a proposed designation of critical habitat for the jaguar.

We intend to begin preparation of proposed rulemaking for the jaguar in Fiscal Year 2010 and publish a proposed critical habitat designation in January 2011. Based on the best available science, we will take the following steps to develop a proposal of critical habitat for the jaguar: (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 areas within the geographical area occupied by the species that contain these features, and identify the special management considerations or protections the features may require; (4) delineate any areas outside of the geographical area occupied by the species at the time of listing that are essential for the conservation of the species; (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 critical habitat rule through a public comment period.

To aid us in completing these steps, we will use the best science available, including but not limited to Boydston and Lopez Gonzalez 2005, Brown and Lopez Gonzalez 2000, Brown and Lopez Gonzalez 2001, Carrillo et al. 2007, Cavalcanti 2008, Ceballos et al. 2006, Chavez and Ceballos 2006, Chavez et al. 2007a, Chavez et al. 2007b, Grigione et al. 2007, Grigione et al. 2009, Hatten et al. 2002, Hatten et al. 2005, Marieb 2005, McCain and Childs 2008, Medellin et al. 2002, Menke and Hayes 2003, Monroy-Vichis et al. 2007, Navarro Serment et al. 2005, Nuxntilde;ez et al. 2002, Oropeza Hernandez et al. 2009, Robinson 2006, Rosas Rosas 2006, Sanderson et al. 2002, and Sierra Institute 2000. We also solicit the public for additional information (see Request for Public Information section below) and will consult experts on the jaguar, including experts on the jaguar in the northern portion of its range.

While the proposed designation of critical habitat for the jaguar is under preparation, the areas occupied by jaguars in the United States will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act, as well as consultation pursuant to section 7(a)(2) of the Act for Federal activities that may affect jaguars, as determined on the basis of the best available scientific information at the time of the action. In addition, the prohibition of taking jaguars under section 9 of the Act (e.g., prohibitions against killing, harming, harassing, and capturing jaguars) continues to apply, which addresses the single greatest threat to the species in the United States, as discussed in the final listing rule.

We will also continue to use our authorities to work with agencies and other partners in the United States, Mexico, and Central and South America to conserve and recover jaguars. We are working with the Jaguar Conservation Team and other partners to develop and implement a framework for the conservation of the northern jaguar populations, including providing recommendations on research needs and procedures in the United States, continuing education efforts, and providing recommendations regarding predator control in areas where jaguars may occur. We are also working with Mexican partners, such as Naturalia and La Comision Nacional de areas Protegidas (CONANP) and other partners on jaguar conservation in Mexico through the Trilateral Commission and other processes. The Service's Wildlife Without Borders program has funded and will likely continue to fund jaguar conservation projects throughout the range of the jaguar in Latin America. Mexico and countries in Central and South America, along with their nongovernmental partners, are continuing conservation efforts, including implementing research programs and developing conservation plans. Specifically, Federal and State agencies in Mexico are developing jaguar conservation plans; we intend to coordinate with Mexico in their development to maintain travel corridors for jaguars into the United States.

We intend that any designation of critical habitat for the jaguar be as accurate as possible. Therefore, 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. We are particularly interested in information concerning:

(1) The amount and distribution of jaguar habitat, both throughout its range and within the United States;

(2) The physical and biological features of jaguar habitat that are essential to the conservation of the species;

(3) Special management considerations or protections that the features essential to the conservation of the jaguar may require, including managing for the potential effects of climate change;

(4) Any areas that are essential to the conservation of the jaguar throughout its range and why;

(5) The areas in the United States that were occupied at the time of listing that contain features essential to the conservation of the species;

(6) The areas in the United States that were not occupied at the time of listing, but are essential to the conservation of the species and why;

(7) Land use designations and current or planned activities in jaguar habitats and their possible impacts on proposed critical habitat;

(8) Conservation programs and plans that protect the jaguar and its habitat; and

(9) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

To ensure that any final action resulting from this finding will be as accurate and as effective as possible, we request that you send relevant information for our consideration. The comments that will be most useful and likely to influence our decisions are those that you support by quantitative information or studies and those that include citations to, and analyses of, the applicable laws and regulations. Please make your comments as specific as possible and explain the bases for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.

You must submit your comments and materials concerning this finding by one of the methods listed above in the ADDRESSES section. We will not accept comments sent by e-mail or fax or to an address not listed in ADDRESSES. If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information, such as your address, telephone number, or e-mail address—will be posted on the Web site. Please note that comments submitted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

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

In addition, comments and materials we receive, as well as supporting documentation used in preparing this finding, will be available for public inspection in two ways:

(1) You can view them on http://www.regulations.gov. In the Search Documents box, enter FWS-R2-ES-2009-0091, which is the docket number for this action. Then, in the Search panel on the left side of the screen, select the type of documents you want to view under the Document Type heading.

(2) You can make an appointment, during normal business hours, to view the comments and materials in person at the Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

As stated above in more detail, before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

A complete list of references cited is available on the Internet at Docket No. FWS-R2-ES-2009-0091 at http://www.regulations.gov and upon request from the Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

The primary author of this notice is the staff of the U.S. Fish and Wildlife Service.

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

On Wednesday, December 16, 2009, we announced a 90-day finding on 192 species from a petition we received to list 475 species in the Southwest region of the United States as threatened or endangered under the Act (16 U.S.C. 1531 et seq.) (74 FR 66865). We found that the petition presented substantial information indicating that 67 of the 192 species may warrant listing as threatened or endangered. When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we requested information on each of the 67 species from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties.

In that notice, we asked commenters to refer to an incorrect docket number when submitting comments via U.S. mail or hand delivery. The correct docket number is [FWS-R2-ES-2008-0130], and our instructions to persons submitting comments electronically included the correct docket number. All hardcopy comments received under the incorrect docket number will be routed to the correct docket. If you already submitted a comment, even with the incorrect docket number, you need not resubmit it. For more information about the species, background, and our finding, see our original notice at 74 FR 66865.

The CPS FMP, which was implemented by publication of the final rule in the Federal Register on December 15, 1999 (64 FR 69888), divides management unit species into two categories: actively managed and monitored. Harvest guidelines for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Biomass estimates are not calculated for species that are only monitored (jack mackerel, northern anchovy, and market squid).

During public meetings each year, the biomass for each actively managed species within the CPS FMP is presented to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC). At that time, the biomass, the ABC and the status of the fisheries are reviewed and discussed. This information is then presented to the Council along with HG recommendations and comments from the Team, Subpanel and SSC. Following review by the Council and after hearing public comment, the Council makes its HG recommendation to NMFS.

In November 2009, the Council adopted and recommended to NMFS an ABC or maximum HG of 72,039 mt for the 2010 Pacific sardine fishing year. This ABC is based on a biomass estimate of 702,204 mt and the harvest control rule established in the CPS FMP. This ABC/HG is slightly higher than the ABC/HG for the 2009 fishing season, which was 66,932 mt. The Council also recommended that 5,000 mt of the available 2010 ABC/HG be initially reserved for research activities that would be undertaken under a potential exempted fishing permit (EFP). In 2009, 2,400 mt was subtracted from the total HG for an EFP. The Council will hear proposals and comments on any potential EFPs at the March Council meeting and make a final recommendation to NMFS on whether or not to issue an EFP(s) for the 5,000 mt research set aside at their April 2010 Council meeting. NMFS will likely make a decision on whether or not to issue an EFP some time prior to the start of the second seasonal period (July 1, 2010). Any of the 5,000 mt that is not issued to an EFP will be rolled into the third allocation period's directed fishery. Any research set aside attributed to an EFP designed to be conducted during the closed fishing time in the second allocation period (prior to September 15), but not utilized, will roll into the third allocation period's directed fishery. Any research set aside attributed to an EFP designed to be conducted during closed fishing times in the third allocation, but not utilized, will not be re-allocated.

The Council recommended that the remaining 67,039 mt (HG of 72,039 mt minus proposed 5,000 mt EFP set aside) be used as the initial overall fishing HG and be allocated across the seasonal periods established by Amendment 11 (71 FR 36999). The Council also recommended an incidental catch set aside of 3,000 mt and a management uncertainty buffer of 4,000 mt. Subtracting this set aside from the initial overall HG establishes an initial directed harvest fishery of 60,039 mt and an incidental fishery of 3,000 mt. The purpose of the incidental fishery is to allow for the restricted incidental landings of Pacific sardine in other fisheries, particularly other CPS fisheries, if and when a seasonal directed fishery is closed.

The directed harvest levels and incidental set-aside would be initially allocated across the three seasonal allocation periods in the following way: January 1-June 30, 22,463 mt would be allocated for directed harvest with an incidental set aside of 1,000 mt; July 1-September 14, 25,861 mt would be allocated for directed harvest with an incidental set aside of 1,000 mt; September 15-December 31, 11,760 mt would be allocated for directed harvest with an incidental set aside of 1,000 mt. If during any of the seasonal allocation periods the applicable adjusted directed harvest allocation is projected to be taken, fishing would be closed to directed harvest and only incidental harvest would be allowed. For the remainder of the period, any incidental Pacific sardine landings would be counted against that period's incidental set-aside. The proposed incidental fishery would also be constrained to a 30 percent by weight incidental catch rate when Pacific sardine are landed with other CPS so as to minimize the targeting of Pacific sardine. In the event that an incidental set aside is projected to be attained, all fisheries will be closed to the retention of Pacific sardine for the remainder of the period. If the set-aside is not fully attained or is exceeded in a given seasonal period, the directed harvest allocation in the following seasonal period would automatically be adjusted to account for the discrepancy. Additionally, if during any seasonal period the directed harvest allocation is not fully attained or is exceeded, then the following period's directed harvest total would be adjusted to account for this discrepancy as well.

If the total HG or these apportionment levels for Pacific sardine are reached or are expected to be reached, the Pacific sardine fishery would be closed via appropriate rulemaking until it re-opens either per the allocation scheme or the beginning of the next fishing season. The Regional Administrator would publish a notice in the Federal Register announcing the date of such closures.

Detailed information on the fishery and the stock assessment are found in the report “Assessment of Pacific Sardine Stock for U.S. Management in 2010” (see ADDRESSES).

The formula in the CPS FMP uses the following factors to determine the HG:

1. Biomass. The estimated stock biomass of Pacific sardine age one and above for the 2010 management season is 702,204 mt.

2. Cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 150,000 mt.

3. Distribution. The portion of the Pacific sardine biomass estimated in the EEZ off the Pacific coast is 87 percent and is based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.

4. Fraction. The harvest fraction is the percentage of the biomass above 150,000 mt that may be harvested. The fraction used varies (5-15 percent) with current ocean temperatures; a higher fraction for warmer ocean temperatures and a lower fraction for cooler temperatures. Warmer ocean temperatures favor the production of Pacific sardine. For 2010, the fraction used was 15 percent, based on three seasons of sea surface temperature at Scripps Pier, California.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.

These proposed specifications are exempt from review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as follows:

As a result, an Initial Regulatory Flexibility Analysis is not required and none has been prepared.

This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.