The Agency administers the Thrift Savings Plan (TSP), which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).

On June 17, 2010, the Agency published a proposed rule with request for comments in the Federal Register (75 FR 34388, June 17, 2010). The Agency received comments from one Federal employees' union, three participants, and one other party.

The Federal employees' union endorsed the proposed changes. The union, however, expressed concern that employing agencies may fail to provide clear and timely notice to newly hired or rehired employees regarding their rights and obligations under the Agency's automatic enrollment program. In response to this comment, the Agency has provided employing agencies with a sample notice to send to newly hired or rehired employees who are automatically enrolled. The Agency promulgated separate guidance that directs employing agencies to provide this notice so that employees can take action within the first automatic enrollment pay period.

In addition, the Agency will directly notify new enrollees of their right to opt out of the automatic enrollment program and to request a refund of default employee contributions. This information will be provided in the TSP Welcome Letter sent to all employees upon receipt of their first contribution.

One participant objected to the forfeiture of agency matching contributions attributable to refunded default employee contributions. The Internal Revenue Service (IRS) mandates forfeiture of matching contributions attributable to refunded default employee contributions. See “Automatic Contribution Arrangements” 74 FR 8200, 8206 (February 24, 2009). The TSP must follow applicable IRS guidance such as this to the extent that it is consistent with FERSA. See 5 U.S.C. § 8440; 26 U.S.C. 7701(j).

Another participant suggested that the Agency should not require a participant's notarized signature in order to request a refund of default employee contributions. The proposed rule does not require a notarized signature in order to request a refund of default employee contributions. In practice, however, the Agency will soon require a notarized signature for all withdrawal requests, including a request for a refund of default employee contributions, as a measure to protect participants' TSP accounts from fraudulent withdrawals.

One commenter requested affirmation that contribution elections and contribution allocations differ with respect to their effect on a participant's continued coverage under the automatic enrollment program. A participant who makes only a contribution allocation will continue to receive default employee contributions until he or she files a contribution election or elects not to have any default employee contributions made on his or her behalf. In contrast, section 1600.34(b) of the proposed rule provides that a participant will no longer be considered to be covered by the automatic enrollment program if the participant makes a contribution election, i.e., elects to have contributions made in a different amount or percentage of basic pay. Section 1600.34(b) of the proposed rule reflects section 1.414(w)-1(e)(2)(ii) of the Internal Revenue Service's regulation governing refunds from automatic contribution arrangements. 26 CFR § 1.414(w)-1(e)(2)(ii).

A participant who is no longer automatically enrolled by reason of having made a contribution election will retain the right to request a refund within 90 days following the date of the first default employee contribution made to his or her account. However, the amount of the refund will be limited to the amount of the default employee contributions (adjusted for allocable gains and losses) made during the period in which the participant was considered automatically enrolled.

One participant recommended that the TSP provide participants with options to self direct investment of their retirement funds. This comment is outside the scope of the proposed rule.

The Agency appreciates the opportunity to review and respond to comments from participants who take an active interest in the TSP and offer suggestions. The comment process allowed the Agency to address any misunderstandings about the proposed change, to learn if there are unanticipated legal or policy impediments to the proposed change, and to hear suggestions about how better to implement the proposed change. Although the comments received did not cause the Executive Director to make any changes to the text of the proposed rule, he did carefully consider all comments received and addressed some of the concerns through other Agency guidance. Therefore, the Agency is publishing the proposed rule as final without change.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation will affect Federal employees who participate in the Thrift Savings Plan, which is a Federal defined contribution retirement savings plan created under the Federal Employees' Retirement System Act of 1986, Pub. L. No. 99-335, 100 Stat. 514, and administered by the Agency.

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under § 1532 is not required.

Pursuant to 5 U.S.C. 810(a)(1)(A), the Agency submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States before publication of this rule in the Federal Register. This rule is not a major rule as defined at 5 U.S.C. 814(2).

EASA, which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2009-0024, dated February 20, 2009, to correct an unsafe condition for the Eurocopter Model EC225LP helicopters.

The MCAI AD states there have been a “few” reports of cracks and failure of the MRH cone restrainer support lugs in the area of their attachment points on the reinforcement ring where the dome fairing is secured. Also, cracks on the dome fairing support have been reported. Failure of the cone restrainer support or the dome fairing support attachment lugs may lead to loss of the dome fairing, damage to the rotor blades, and subsequent loss of control of the helicopter or injury to persons on the ground.

You may obtain further information by examining the MCAI AD and any related service information in the AD docket.

Eurocopter has issued one Emergency Alert Service Bulletin (EASB) No. 05A003, Revision 2, dated February 3, 2009 (EASB No. 05A003) for two different helicopters: the Model EC225LP and the military Model EC725AP, a non-FAA type certificated helicopter. Eurocopter has also issued EASB No. 62-007, dated July 10, 2009 (SB 62-007), which corresponds to MOD 0743718. EASB 05A003 specifies checking the MRH in the area of the cone restrainer support attachment lugs and the dome fairing support attachment lugs for a crack. If a crack is found in one of the five lugs of the cone restrainer support or the dome fairing support, the EASB specifies complying with SB 62-007 before further flight. SB 62-007 specifies modifying the MRH by replacing the cone restrainer support and the dome fairing support, reidentifying those parts and balancing the main rotor blades if they were removed. The actions described in the MCAI AD are intended to correct the unsafe condition identified in the service information.

This helicopter has been approved by the aviation authority of France and is approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, their Technical Agent, has notified us of the unsafe condition described in the MCAI AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of this same type design.

We do not specify dates because the dates have already passed nor do we specify the compliance time in days but rather only in hours time-in-service (TIS). We also use a different compliance time. Also, we use inspect rather than check when referring to an action required by a mechanic as opposed to a pilot.

We estimate that this AD will affect about 4 helicopters of U.S. registry. We also estimate that it will take about 30 work-hours per helicopter to inspect and modify the MRH. The average labor rate is $85 per work-hour. Required parts will cost about $18,981 per helicopter. Based on these figures, we estimate the cost of this AD on U.S. operators will be $86,124, assuming a crack is found in each MRH cone restrainer support or dome fairing support attachment lugs.

An unsafe condition exists that requires the immediate adoption of this AD. We find that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the short compliance time of 15 hours TIS to conduct the inspection for a crack in the attachment lugs. Failure of these lugs could result in loss of control of the helicopter. Therefore, we have determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. However, we invite you to send us any written data, views, or arguments concerning this AD. Send your comments to an address listed under the ADDRESSES section of this AD. Include “Docket No. FAA-2010-0721; Directorate Identifier 2009-SW-56-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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 AD.

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

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

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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.

Therefore, I certify this AD:

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 an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 2003-24-08, Amendment 39-13377 (68 FR 67027, December 1, 2003). The existing AD applies to all Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That NPRM was published in the Federal Register on March 1, 2010 (75 FR 9137). That NPRM proposed to continue to require repetitive gap checks of the inboard and outboard carriage of the outboard mid-flaps to detect fractured carriage spindles, and corrective actions if necessary, and continue to require repetitive inspections to find cracks, factures, or corrosion of each carriage spindle of the left and right outboard mid-flaps. That NPRM also proposed to require any new or serviceable carriage spindle installed per the requirements of the existing AD to meet minimum allowable diameter measurements taken at three locations. That NPRM proposed to require new repetitive inspections, measurements, and overhaul of the carriage spindles, and applicable corrective actions. In addition, that NPRM also proposed to require replacing any carriage spindle when it has reached its maximum life limit.

Since we issued the original NPRM, there has been an in-service event of a dual fracture of the outboard flap carriages. This event is currently under investigation. As a result, we consider this AD to be interim action. If final action is later identified, we might consider further rulemaking then.

We have added paragraph (t)(4) to this final rule to provide credit for actions done in accordance with previously issued AMOCs for individual repairs. In paragraph (m) of this AD, we have also referenced the most current issue of the Boeing (737) Standard Overhaul Practices Manual for actions done as of the effective date of this AD.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been received on the NPRM.

Boeing supports the intent of the NPRM.

Safair states that it has experienced only one flap carriage spindle failure before AD 2003-24-08 was issued. Safair states that its main concern is scrapping serviceable carriages in order to enforce the life limits on the flap carriages. Safair states that stricter inspections and overhaul requirements would ensure that stress and pitting corrosion are detected and corrected, which would avoid failures and would extend the life of the flap carriages.

We do not agree that substituting stricter inspection and overhaul limits for life limits would address the unsafe condition. Since AD 2003-24-08 was issued, we have received many additional reports of carriage spindle fractures, including fractures caused by fatigue. Because of the difficulty in detecting small cracks and the rapid crack growth in these parts, in combination with the concerns with reduced fatigue life of reworked and overhauled parts, the most effective way to maintain the continued operational safety of the fleet is to mandate life limits. We have not changed the AD in regard to this issue.

KLM requests clarification concerning the requirements to remove the carriage spindle in order to perform a detailed inspection for corrosion, pitting, cracking, and measurement of some minimal allowable spindle diameters. KLM points out that the times specified for this action are the same as for the initial gap check and the nondestructive test for new carriage spindles. KLM asks whether the removal of the carriage spindle is required at 12,000 flight cycles, if the initial or repetitive gap check and the non-destructive test (NDT) at the same time are still useful. KLM further states that carriage spindles that receive a thorough detailed inspection and have been found to be serviceable do not require a gap check or an NDT inspection at the times specified in the 12,000- to 20,000-flight-cycle range as specified in Table 1 and Table 2 of Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003. KLM states that the gap checks and NDTs are still required, although at a different time interval after completing the requirements of paragraph (o) of the NPRM.

We agree that clarification might be necessary. Paragraph (o) of this final rule requires the overhaul to be performed on the new carriage spindle before the accumulation of 12,000 flight cycles. Therefore, the new carriage spindle should not accumulate more than 11,999 flight cycles before being overhauled in order to comply with this requirement. Paragraph (g) of this AD refers to Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003, for the compliance times for the gap checks and NDT inspections. Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003, states that the gap check and NDT inspections are not required for a new flap carriage spindle that has accumulated fewer than 12,000 flight cycles without being overhauled.

Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003, requires relatively stringent gap checks and NDT inspections for flap carriage spindles that have accumulated 12,000 or more flight cycles on them since being overhauled. This requirement should become obsolete as this AD requires that all spindles be overhauled before accumulating 12,000 flight cycles since new or overhauled.

We have not changed the AD in regard to this issue.

We have carefully reviewed the available data, including the comments that have been received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are about 2,852 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No. ­2010-0108-E, dated June 8, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Zakład Szybowcowy “Jeżów” Henryk Mynarski has issued Mandatory Bulletin BO-78-10-10, dated June 7, 2010. 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the 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 have also required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements take precedence over those copied from the MCAI.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because cracks on the lug of the rear attachment fitting of the horizontal stabilizer have been found. This condition, if not detected and corrected, could cause the horizontal stabilizer to fail, which could result in loss of control. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2010-0729; Directorate Identifier 2010-CE-032-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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 AD.

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

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

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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 that this AD:

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

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

(3) 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 AD and placed it in the AD docket.

On October 23, 2009, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Piper Aircraft, Inc. (Piper) PA-28, PA-32, PA-34, and PA-44 series airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on October 30, 2009 (74 FR 56138). The NPRM proposed to detect and correct any incorrectly assembled control wheel shafts.

We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment:

Fifteen commenters, including the Aircraft Owners and Pilots Association (AOPA), Barry Rogers, Bruce Chien, and Harry Cook commented that some Piper airplanes do not have inspection holes and may require disassembly of the control wheel shaft. Disassembly can take several hours due to the difficulty in removing (or separating) the parts, which could be very costly and possibly damage a perfectly good component.

We infer from these comments that the commenters want us to rescind the NPRM due to difficulty in disassembling the parts and cost of labor for disassembly.

The FAA partially agrees with the above comment. We disagree that we should rescind the NPRM due to difficulty in disassembling the parts. According to Piper, the universal joint has rotating parts that wear, and replacement of those parts, which requires disassembly, is a routine procedure done with little difficulty. Piper sales history records show, that on average, they sell over 400 of these as service spare replacements each year, and the Piper technical support department is not aware of anyone reporting difficulty in replacing them. Piper has revised their service bulletin, to provide more information about the different control wheel shaft configurations. We agree that disassembly of the control shaft wheel may take more time than an inspection with witness holes. However, the FAA has determined that there is an unsafe condition and has identified actions to correct that unsafe condition. It is every owner's and operator's responsibility to maintain the airplane to the type design and address any airworthiness concerns. This includes all maintenance requirements and ADs that correct an unsafe condition.

We will change the final rule AD action to include Piper Aircraft, Inc. Mandatory Service Bulletin No. 1197B, dated May 3, 2010, to use for the procedures to comply with the actions required by this AD. We will allow “unless already done” credit to anyone who already accomplished the actions following the previous service bulletin included as part of the NPRM.

John Witosky, Thomas McIntosh, Claude Dalrymple, Jr., M. Hefter, and George Haffey commented that the cost for maintenance and replacement parts should be absorbed by Piper. Several aircraft owners disagreed with covering the cost for a Piper mistake. Several aircraft owners/operators felt that Piper failed to manufacture the aircraft to design specification and their quality system did not detect a bad assembly.

The FAA has determined that there is an unsafe condition and has identified actions to correct that unsafe condition. One of the FAA's responsibilities is to identify the direct costs involved (labor and parts) with the corrective actions. It is every owner's and operator's responsibility to maintain the airplane to the type design and address any airworthiness concerns. This includes all maintenance requirements and ADs that correct an unsafe condition.

We are not changing the final rule AD action based on this comment.

M. Hefter, Barry Rogers, Matt Gunsch, Thomas McIntosh, and four other commenters stated that the FAA needs to determine a date range when the control wheel assemblies' manufacturing errors were most likely to have occurred. This would narrow the number of aircraft required to be inspected. This AD would require the inspection of the control wheel assemblies on approximately 41,928 airplanes. There are reports from Piper owners that the inspection is not simple and can take several hours due to difficulty in removing (or separating) the parts.

The FAA agrees that it would be helpful to know an exact time period when the manufacturing errors occurred. Piper is unable to determine a time period when the assembly error occurred. Therefore, we are unable to comply with owner's/operator's requests to narrow the number of aircraft based on date of manufacture.

We are not changing the final rule AD action based on this comment.

The AOPA, Bruce Chien, M. Hefter, and Barry Rogers commented that the cost of compliance should be revised based on field experience and difficulty in removing these parts for inspection, along with replacing these assemblies and different configurations used in the control wheel shaft assemblies. Piper owners claim there are different configurations used in the control wheel shaft assemblies as follows:

• Taper pin on aircraft with witness holes;

• Taper pin on aircraft without witness holes;

• Bolt with witness hole;

• Bolt with no witness hole; and

• The older Piper aircraft do not use fastener (taper pin or bolt) or have witness holes.

The FAA agrees with this comment. Piper has revised the service information to provide more information about the different control wheel shaft configurations. We are including this revised service bulletin in the final rule AD action, and including the estimated cost of each configuration in the Costs of Compliance section of this AD. We will allow “unless already done” credit to anyone who already accomplished the actions following the previous service bulletin included as part of the NPRM.

The AOPA and Harry Cook commented that there should be a revision to the service bulletin to address the different control wheel shaft assemblies. Piper owners are requesting more instructions in the service bulletin to address the older Piper aircraft that do not use taper pins or have witness holes.

The FAA agrees with this comment. Piper has revised the service bulletin to provide more information about the different control wheel shaft configurations. We will change the final rule AD action to include Piper Aircraft, Inc. Mandatory Service Bulletin No. 1197B, dated May 3, 2010, to use for the procedures to comply with the actions required by this AD. We will allow “unless already done” credit to anyone who already accomplished the actions following the previous service bulletin included as part of the NPRM.

Neal Bachman, M. Hefter, and several other commenters had several suggestions for control wheel shafts lacking a witness hole. One commenter suggested that information should be provided in the service bulletin on drilling a witness hole based on Piper design specifications. Another commenter suggested revising the service bulletin to include an alternative method to determine the location of the drilled taper pin hole, which requires a measurement from the sprocket end of the shaft instead of measuring from the universal joint end of the shaft (which requires the removal of the tapered pin). The commenters feel this will greatly reduce the burden to remove the universal joint/taper pin on airplanes lacking a witness hole.

The FAA disagrees with this comment. Based on input from Piper, we determined these were not viable options due to the many different control wheel shaft configurations within each airplane model. However, anyone may submit substantiating data to show compliance with the actions of this AD. The FAA will review and consider all alternative method of compliance (AMOC) requests we receive provided they follow the procedures in 14 CFR 39.19

We are not changing the final rule AD action based on this comment.

The AOPA and M. Hefter commented that the compliance time should be changed to be at the next scheduled annual or 100-hour inspection, whichever occurs first. The low fleet incidences do not justify a more restrictive timetable.

The FAA agrees and based on comments received from owners/operators we will change the compliance time to be within the next 100 hours time-in-service or within the next 12 months, whichever occurs first.

The AOPA, James M. Stockdale, Steven Barnes, and others commented that the proposed AD is a result of two reports of control wheel shafts incorrectly drilled at Piper. The AD would require the inspection of the control wheel assemblies on approximately 41,928 airplanes. Several aircraft owners/operators feel that a control wheel shaft problem would have shown a much greater incidence level than two field reports.

The FAA does not agree that the scope needs to be changed or that this NPRM is not necessary. A loss of the control wheel due to misdrilling of the attachment hole may lead to separation of the control wheel shaft, resulting in loss of pitch and roll control. The FAA has determined that there is an unsafe condition as described and justified in the NPRM. It is every owner's responsibility to maintain their airplane to type design and address any airworthiness concern.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for the changes previously discussed and minor editorial corrections. We have determined that these minor corrections:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We estimate that this AD would affect 41,928 airplanes in the U.S. registry.

We estimate the following costs to do the inspection:

We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of airplanes that may need this repair/replacement:

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 AD.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will 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 that this AD:

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 summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “Docket No. FAA-2009-1015; Directorate Identifier 2009-CE-039-AD” in your request.

On Wednesday, May 5, 2010, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to modify V-82, V-175, V-191, and V-430 in the vicinity of Bemidji, MN (75 FR 24504). Interested parties were invited to participate in this rulemaking effort by submitting written comments on this proposal to the FAA. One comment was received in response to the proposal.

The commenter requested the FAA provide at least a fix to replace the Bemidji VOR. The FAA addressed this comment in the proposal section of the NPRM. Specifically, the FAA stated, “To restore the navigable airway structure in the vicinity of Bemidji, MN, the FAA is proposing to establish the BLUOX fix in the same location currently depicting the BJI VOR navigation aid.” The BLUOX fix, as proposed, is defined by intersecting airway radials.

Subsequent to publication, the FAA took action to change the Decatur (DEC) VHF omni-directional range/tactical air navigation (VORTAC) name and identifier to the Adders VORTAC (AXC). The DEC VORTAC name change will only affect V-191 in this rulemaking action.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying V-82, V-175, V-191, and V-430 in the vicinity of Bemidji, MN. The BJI VOR navigation aid was removed from service in April 2007, and is being decommissioned. To restore the navigable airway structure in the vicinity of Bemidji, MN, the FAA is establishing the BLUOX fix in the same location currently depicting the BJI VOR. Also, V-430 is rerouted between the BLUOX fix and Grand Forks VOR (GFK), ND, over the Thief River Falls VOR (TVF), MN. Except for V-191, which is being modified to terminate at the Grand Rapids VOR (GPZ), MN, the FAA is modifying the V-82, V-175, and V-430 legal descriptions to replace the BJI VOR with an airways intersection point defining the BLUOX fix.

Additionally, V-191 is being amended to reflect the Decatur VORTAC name change to Adders VORTAC. The Decatur VORTAC and Decatur Airport share the same name and facility identifier (DEC), but are not co-located and are greater than 5 nautical miles apart. To eliminate the possibility of confusion, and a potential flight safety issue, the Decatur VORTAC is being renamed the Adders VORTAC and assigned a new facility identifier (AXC). Accordingly, the V-191 legal description will be amended to reflect the Adders, IL, [VORTAC] name change.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.9T signed August 27, 2009 and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The VOR Federal Airways listed in this document will be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies VOR Federal airways in the vicinity of Bemidji, MN.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Polices and Procedures, paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

On April 8, 2010, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class D airspace for Seymour Johnson AFB, Goldsboro, NC (75 FR 17891) Docket No. FAA-2010-0095. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class D airspace designations are published in paragraph 5000 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR Part 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the Class D surface airspace to reflect the part-time operations of the airport control tower, establishing in advance the dates and times by a Notice to Airmen. This action is necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Seymour Johnson AFB, Goldsboro, NC.

On March 23, 2010, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace at Clemson, SC and establish Class E airspace at Pickens, SC (75 FR 13697) Docket No. FAA-2010-0052. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the Class E airspace extending upward from 700 feet above the surface at Clemson, SC to remove Pickens County Airport from the airspace description and establish Class E airspace at Pickens, SC, to support a new LPV Approach developed for Pickens County Airport. This action is necessary for the safety and management of IFR operations at the airports.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Clemson, SC, and establishes Class E airspace at Pickens, SC.

History

On March 25, 2010, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace at Mount Airy, NC (75 FR 14381) Docket No. FAA-2010-0070. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the Class E airspace extending upward from 700 feet above the surface at Mount Airy, NC to provide the controlled airspace required to support the SIAPs for Mount Airy-Surry County Airport. This action is necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Mount Airy, NC.

History

On April 19, 2010, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace for Johnston County Airport, Smithfield, NC (75 FR 20320) Docket No. FAA-2010-0285. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the Class E5 airspace extending upward from 700 feet above the surface to accommodate SIAPs at Johnston County Airport, Smithfield, NC. This action is necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Johnston County Airport, Smithfield, NC.

The Rule

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the legal description of VOR Federal Airways V-50, V-251, and V-313, in the vicinity of Decatur, IL. Currently, V-50, V-251, and V-313 have Decatur, IL, [VORTAC] included as part of their route structure. The Decatur VORTAC and the Decatur Airport share the same name and facility identifier (DEC), but are not co-located and are greater than 5 nautical miles apart. To eliminate the possibility of confusion, and a potential flight safety issue, the Decatur VORTAC will be renamed the Adders VORTAC and assigned a new facility identifier (AXC). All VOR Federal Airways with Decatur, IL, [VORTAC] included in their legal description will be amended to reflect the Adders, IL, [VORTAC] name change. The name change of the VORTAC will coincide with the effective date of this rulemaking action.

Since this action merely involves editorial changes in the legal descriptions of VOR Federal Airways, and does not involve a change in the dimensions or operating requirements of that airspace, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

Domestic VOR Federal Airways are published in paragraph 6010(a) of FAA Order 7400.9T, signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The domestic VOR Federal Airways listed in this document will be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it revises the legal description of three VOR Federal Airways in the vicinity of Decatur, IL.

There are no changes to the lateral limits. Therefore, the FAA has determined that this action is not subject to environmental assessments and procedures in accordance with FAA Order 1050.1E, Policies and Procedures for Considering Environmental Impacts, and the National Environmental Policy Act.

Northwest Florida-Panama City International Airport, a new airport for Panama City, FL, opened on May 23, 2010. Therefore, the Panama City-Bay County Airport was closed effective at 10 p.m. on May 22, 2010. The associated SIAPs and controlled airspace must be removed in conjunction with the airport closure. As a result, this action will remove the Class D, E4, and E5 airspace for the Panama City-Bay County Airport, Panama City, FL. This rule will become effective on the date specified in the DATES section. Since this action eliminates the impact of controlled airspace on users of the National Airspace System in the vicinity of the Panama City-Bay County Airport, Panama City, FL, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Class D and Class E airspace designations are published in paragraphs 5000, 6004 and 6005 respectively of FAA Order 7400.9T, dated August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 removes the Class D, E4 and E5 airspace at Panama City-Bay County Airport, Panama City, FL. Controlled airspace is no longer needed as the airport has closed.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it removes controlled airspace at Panama City-Bay County Airport, Panama City, FL.

On June 25, 2010, the Bureau of Industry and Security (BIS) published a final rule (75 FR 36482) that, inter alia, established an encryption registration requirement for authorization under provisions of License Exception ENC, as codified in § 740.17(b)(1), (b)(2) and (b)(3) of the EAR, and for transactions in connection with mass market encryption transaction, as codified in §§ 742.15(b)(1) and (b)(3) of the EAR. In § 740.17(d)(1)(i)(A) and (d)(1)(i)(B), the rule specified that an encryption registration was required to be filed the first time that a party submits an encryption classification request under § 740.17(b)(2) and (b)(3) or performs an encryption self-classification under § 740.17(b)(1) on or after August 24, 2010. The rule also stated that an encryption registration was required to be submitted in support of an encryption classification or in circumstances where a party is making a mass market encryption item eligible for export and reexport (including the definition at § 734.2(b)(9) for encryption software) under § 742.15(b)(1) for the first time on or after August 24, 2010. Although the rule was issued in final form on June 25, the rule intended to establish a grace period permitting parties to wait until August 24 to submit their registration requirements.

The intent of this grace period was to allow industry time to gather information necessary to accurately submit the information required in the encryption registration (Supplement No. 5 to part 742), to change internal procedures, and to train personnel before submitting the encryption registration. However, the rule inadvertently omitted language that clarifies that parties may self-classify or seek classifications between June 25, 2010 and August 24, 2010 without first submitting a registration. It also inadvertently omitted language that clarifies the post-classification registration requirement for parties that self-classified or sought classifications between June 25, 2010 and August 24, 2010, but did not self-classify or seek a classification again on or after August 24, 2010. This rule corrects the regulations to include language that clarifies the intent of the grace period.

Therefore, this rule adds a sentence to the introductory text of paragraph (b) of § 740.17 that reads, “For items self-classified under paragraph (b)(1) of this section from June 25, 2010 through August 24, 2010, and for requests for classification under paragraphs (b)(2) and (b)(3) of this section submitted from June 25, 2010 through August 24, 2010, exporters have until August 24, 2010 to submit their encryption registrations.” This rule also adds a sentence to the introductory text of paragraph (b) of § 742.15 that reads “For items self-classified under paragraph (b)(1) of this section from June 25, 2010 through August 24, 2010, and for requests for classification under paragraph (b)(3) of this section submitted from June 25, 2010 through August 24, 2010, exporters have until August 24, 2010 to submit their encryption registrations.”

Since this rule is a clarification of contradicting provisions of the regulations, BIS has determined that this rule has no retroactive effect. The registration requirement remains prospective (i.e. by August 24, 2010), and BIS is not actually triggering any requirements with which the affected entities would not otherwise have to comply. The encryption clarification rule simply clarifies that those who proceed with export between June 25, 2010 and August 24, 2010 must file with BIS by August 24, 2010. The public is not adversely affected by this clarification since it provides exporters with a clear guidance for exporting between June 25, 2010 and August 24, 2010.

In addition, the June 25, 2010 rule listed a non-existent e-mail address (encryption@bis.doc.gov) as the e-mail address for technical questions in the FOR FURTHER INFORMATION CONTACT section of the preamble of the rule. The correct address for technical questions is cpratt@bis.doc.gov. The e-mail address for non-technical questions continues to be scook@bis.doc.gov.

1. This rule is not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule involves a collection of information that has been approved by the OMB under control number 0694-0088, which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. BIS believes that this rule will make no change to the number of submissions or to the burden imposed by this collection.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. BIS finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because it is unnecessary. These revisions merely clarify the intent of the encryption registration requirement, therefore allowing prior notice and comment on these rules is unnecessary. In addition, BIS finds good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness because this rule merely makes technical changes to the regulations to clarify the intent of the encryption registration requirement. No other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule; therefore, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.

The Coast Guard will enforce the safety zone listed in 33 CFR 165.1332, Safety Zones; annual firework displays within the Captain of the Port, Puget Sound Area of Responsibility. A previous notice of enforcement, published on July 1, 2010 (75 FR 38021), incorrectly stated that the zone would be enforced on July 24, 2010. This notice provides corrected information.

The following safety zone will be enforced from 5 p.m. on July 23, 2010 through 1 a.m. on July 24, 2010:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. It would be impracticable to issue an NPRM for this rule, because a safety zone is needed immediately to protect personnel and vessels associate with response operations at the staging area at Shell Beach.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Potential safety hazards associated with response activities at this location prohibits regularly issued safety zones.

This response staging area is in support of the DEEPWATER HORIZON oil spill clean-up effort. This safety zone requires that vessels maintain the slowest safe speed to maintain steerage. This rule is needed to protect members of the response effort by creating a no wake zone in the vicinity of the staging area. In addition, the rule is needed to protect mariners transiting in or through the area from the dangers associated with navigating around equipment deployed in support of the clean-up efforts.

The Coast Guard is establishing a safety zone encompassing the coastal areas affected by the DEEPWATER HORIZON oil spill on the Mississippi River Gulf Outlet (MRGO) at Mile 42 at Shell Beach. The safety zone will encompass the entire width of the MRGO, 500 yards above and 500 yards below the response staging area. In accordance with the general regulation in § 165.23 of this part, vessels must transit at the slowest safe speed to allow for steerage to comply with the no wake zone located in (a)(1). Vessels must exercise caution when transiting this area to observe the no wake zone. The Coast Guard will enforce this safety zone from June 24 through September 24, 2010.

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

This rule is an emergency regulatory action under section 6(a)(3)(D) of Executive Order 12866, Regulatory Planning and Review, and requires compliance with the ordinary review procedure to the extent practicable. The Office of Management and Budget has not reviewed it under that Order.

This rule has been deemed an emergency regulatory action after consultation with the Eighth Coast Guard District Legal Office, CG-0941 and CG-0943. Although this regulation will restrict access to the area, the effect of the rule will not be significant because the safety zone will only be in place for a limited specified time period and is for a limited size and notice will be provided to the maritime community through Safety Broadcast Notice to Mariners and Marine Safety Information Bulletins. Additionally, persons or vessels requiring deviations from this rule may request permission from the Captain of the Port New Orleans.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels, intending to transit the MRGO at Mile 42 in the vicinity of the DEEPWATER HORIZON oil spill response staging area at Shell Beach and where oil spill response activities are taking place. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the safety zone will only be in place for a limited specified time period and is for a limited size; notice will be provided to the maritime community through Safety Broadcast Notice to Mariners and Marine Safety Information Bulletins; and persons or vessels requiring deviations from this rule may request permission from the Captain of the Port New Orleans. Finally, we note that vessels can transit the area, but merely must do so at reduced speeds.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

We have analyzed this 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone.

Under figure 2-1, paragraph (34)(g), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are required for this rule because it concerns a situation of more than 1 week in duration. An environmental analysis checklist and a categorical exclusion determination will be made available in the docket upon publication in the Federal Register.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. This is because it would be impracticable for the Coast Guard to publish an NPRM and final rule before the zone is needed on July 16, 2010.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. There is a need to establish the safety zone before July 16, 2010, in order to protect watercraft and the general public from hazards associated with fixed moorings and stationary vessels in the harbor.

In 2009, Fourth Mate Productions formally proposed mooring five vessels in and around He'eia Kea Small Boat Harbor and main pier with the State of Hawaii's permission and after meeting with numerous local users and environmental and boating agency officials.

In June 2010 and after all environmental and permitting requirements were met, Fourth Mate Productions was given permission to place moorings and five stationary vessels in He'eia Kea Small Boat Harbor.

Due to He'eia Kea Small Boat Harbor's heavy traffic during daylight hours, the Coast Guard determined that a safety zone was appropriate to ensure safe and orderly transit around the moorings and five stationary vessels by all other watercraft and the general public.

The Coast Guard is establishing a temporary safety zone in He'eia Kea Small Boat Harbor located in Kaneohe Bay, Oahu, Hawaii. This safety zone is in the shape of a box bounded by the points: 21°26′30.9″ N, 157°48′40.4″ W; 21°26′53.4″ N, 157°48′33.8″ W (aka Light #2); 21°26′40.9″ N, 157°48′10.5″ W, and 21°26′30.4″ N, 157°48′20.57″ W (aka Kealohi Pt) thence along the coast to the beginning point. The zone will extend from the surface of the water to the ocean floor. The zone will be enforced from 5 a.m. on July 16, 2010, through 7 p.m. on August 13, 2010.

Entry into or remaining in the safety zone will be prohibited unless authorized by the Coast Guard Captain of the Port Honolulu zone. Vessels desiring to transit through the zone can request permission by contacting the Honolulu Captain of the Port on VHF Channel 81A or at phone numbers 808-563-9906 and 808-842-2600.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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 zone will have not have a significant impact on the harbor's commercial use since nearly all the westward and eastward portions of the small boat harbor will remain open for business. Furthermore, vessels will be able to transit in the temporary safety zone with permission from the Captain of the Port, and escort vessels will be freely available on a case by case basis and once entry into the safety zone is granted.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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 rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels using the He'eia Kea Small Boat Harbor between July 16 and August 13, 2010. This safety zone will not have a significant economic impact on a substantial number of small entities because this rule will only be in effect for a limited period of time, vessels will be able to transit around the safety zone, and will be allowed to transit in and around the temporary safety zone in He'eia Kea Small Boat Harbor with prearranged vessel escorts once permission to transit the zone is granted.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

We have analyzed this 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing, disestablishing, or changing Regulated Navigation Areas and security or safety zones. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

In this notice, the Librarian of Congress, upon the recommendation of the Register of Copyrights, announces that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of six classes of works. This announcement is the culmination of a rulemaking proceeding commenced by the Register on October 6, 2008. A more comprehensive statement of the background and legal requirements of the rulemaking, a discussion of the record and the Register’s analysis may be found in the Register’s memorandum to the Librarian of Congress dated June 11, 2010, which contains the full explanation of the Register’s recommendation. A copy of the Register’s memorandum may be found at http://www.copyright.gov/1201. This notice summarizes the Register’s recommendation, announces the Librarian’s determination, and publishes the regulatory text codifying the six exempted classes of works.

The Digital Millennium Copyright Act (“DMCA”) was enacted to implement certain provisions of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. It established a wide range of rules that govern not only copyright owners in the marketplace for electronic commerce, but also consumers, manufacturers, distributors, libraries, educators, and on-line service providers. It defined whether consumers and businesses may engage in certain conduct, or use certain devices, in the course of transacting electronic commerce.

Chapter 12 of title 17 of the United States Code prohibits circumvention of certain technological measures employed by or on behalf of copyright owners to protect their works (i.e., “access controls”). Specifically, Section 1201(a)(1)(A) provides, in part, that no person shall circumvent a technological measure that effectively controls access to a work protected under this title. In order to ensure that the public will have continued ability to engage in noninfringing uses of copyrighted works, such as fair use, subparagraph (B) limits this prohibition. It provides that the prohibition against circumvention shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding three-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title as determined in a rulemaking. The proceeding is conducted by the Register of Copyrights, who is to provide notice of the rulemaking, seek comments from the public, consult with the Assistant Secretary for Communications and Information of the Department of Commerce, and recommend final regulations to the Librarian of Congress. The regulations, to be issued by the Librarian of Congress, announce “any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (c), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period.” This is the fourth Section 1201 rulemaking.

The primary responsibility of the Register and the Librarian in this rulemaking proceeding was to assess whether the implementation of access control measures is diminishing the ability of individuals to use copyrighted works in ways that are not infringing and to designate any classes of works with respect to which users have been adversely affected in their ability to make noninfringing uses. Congress intended that the Register solicit input that would enable consideration of a broad range of current or likely future adverse impacts. The statute directs that in conducting the rulemaking, the Register and the Librarian shall examine:

(1) The availability for use of copyrighted works;

(2) The availability for use of works for nonprofit archival, preservation, and educational purposes;

(3) The impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;

(4) The effect of circumvention of technological measures on the market for or value of copyrighted works; and

(5) Such other factors as the Librarian considers appropriate.

These factors to be considered in the rulemaking process require the Register and the Librarian to carefully balance the availability of works for use, the effect of the prohibition on particular uses, and the effect of circumvention on copyrighted works.

The task of this rulemaking is to determine whether the availability and use of access control measures has already diminished or is about to diminish the ability of the users of any particular classes of copyrighted works to engage in noninfringing uses of those works similar or analogous to those that the public had traditionally been able to make prior to the enactment of the DMCA. In examining the factors set forth in Section 1201(a)(1)(C), the focus is on whether the implementation of technological protection measures has had an adverse impact on the ability of users to make lawful uses.

Proponents of a class of works have the burden of proof. In order to make a prima facie case for designation of a class of works, proponents must show by a preponderance of the evidence that there has been or is likely to be a substantial adverse effect on noninfringing uses by users of copyrighted works. De minimis problems, isolated harm or mere inconveniences are insufficient to provide the necessary showing. Similarly, for proof of “likely” adverse effects on noninfringing uses, a proponent must prove by a preponderance of the evidence that the harm alleged is more likely than not; a proponent may not rely on speculation alone to sustain a prima facie case of likely adverse effects on noninfringing uses. It is also necessary to show a causal nexus between the prohibition on circumvention and the alleged harm.

Proposed classes are reviewed de novo. The existence of a previously designated class creates no presumption for consideration of a new class, but rather the proponent of such a class of works must make a prima facie case in each three-year period.

The starting point for any definition of a “particular class” of works in this rulemaking must be one of the categories of works set forth in section 102 of the Copyright Act. However, those categories are only a starting point and a “class” will generally constitute some subset of a section 102 category. The determnation of the appropriate scope of a ”class of works”; recommended for exemption will also take into account the likely adverse effects on noninfringing uses and the adverse effects that designation of the class may have on the market for or value of copyrighted works.

While starting with a section 102 category of works, or a subcategory thereof, the description of a “particular class”of works ordinarily should be further refined by reference to other factors that assist in ensuring that the scope of the class addresses the scope of the harm to noninfringing uses. For example, the class might be defined in part by reference to the medium on which the works are distributed, or even to the access control measures applied to them. The description of a class of works may also be refined, in appropriate cases, by reference to the type of user who may take advantage of the designation of the class of works or by reference to the type of use of the work that may be made pursuant to the designation. The “class” must be properly tailored not only to address the harm demonstrated, but also to limit the adverse consequences that may result from the creation of an exempted class. In every case, the contours of a “class” will depend on the unique factual circumstances established in the rulemaking record on a case-by-case basis.

Section 1201(a)(1)(C) requires the Register of Copyrights to consult with the Assistant Secretary for Communications and Information of the Department of Commerce (who is also the Administrator of the National Telecommunications and Information Administration) and report and comment on the views of the Assistant Secretary (“NTIA”) when she makes her recommendation to the Librarian of Congress.

In addition to informal consultations throughout the course of the rulemaking proceeding, NTIA formally communicated its views in letters to the Register on November 4, 2009, and April 16, 2010. NTIA’s views were considered by the Register in forming her recommendation. A discussion of NTIA’s substantive analysis of particular proposals is presented in the relevant sections of the Register’s recommendation.

On October 6, 2008, the Register initiated this rulemaking proceeding pursuant to Section 1201(a)(1)(C) with publication of a Notice of Inquiry. The NOI requested written comments from all interested parties, including representatives of copyright owners, educational institutions, libraries and archives, scholars, researchers, and members of the public.

During the initial comment period that ended on December 2, 2008, the Copyright Office received nineteen written comments proposing twenty-five classes of works, all of which were posted on the Office’s website. Because some of the initial comments contained similar or overlapping proposals, the Copyright Office arranged related classes into groups, and set forth and summarized all proposed classes in a Notice of Proposed Rulemaking (“NPRM”) published on December 29, 2008. This NPRM did not present the initial classes in the form of proposed rule, but merely as “a starting point for further consideration.”

The NPRM asked interested parties to submit comments providing support, opposition, clarification, or correction regarding the proposals, and to provide factual and/or legal arguments in support of their positions. The Copyright Office received a total of fifty-six responsive comments before the comment period closed on February 2, 2009, all of which were posted on the Copyright Office website.

Four days of public hearings were conducted by the Register in May 2009 at Stanford University and the Library of Congress. Thirty-seven witnesses, representing proponents and opponents of proposed classes of works, testified on twenty-one proposed classes. Following the hearings, the Copyright Office sent follow-up questions to some of the hearing witnesses, and responses were received during the summer. The entire record in this and the previous section 1201(a)(1)(C) rulemakings are available on the Office’s website, http://www.copyright.gov/1201/index.html.

On October 27, 2009, the Librarian of Congress published in the Federal Register a Notice of an interim rule, extending the existing classes of works exempted from the prohibition until the conclusion of the current rulemaking proceeding and the designation of any classes of works to be exempt from the prohibition for the ensuing three-year period by the Librarian of Congress.

• Educational uses by college and university professors and by college and university film and media studies students;

• Documentary filmmaking;

• Noncommercial videos.

DVDs protected by the Content Scrambling System (CSS) have been an issue in this rulemaking proceeding since its inception in 2000. In the 2006 rulemaking proceeding, the Librarian designated a class of “[a]udiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.”

In the current rulemaking, educators sought to renew and, in a number of ways, to expand the existing class of works designated in the last proceeding. The proposed expansions of the class involved extending the class to include all of the motion pictures on CSS-protected DVDs contained in a college or university library (rather than just a film or media studies department) and to encompass classroom use by all college and university professors and students as well as elementary and secondary school teachers and students.

Apart from educators, others sought designation of similar classes of works to address what they contended are adverse impacts on their ability to engage in noninfringing uses of copyrighted works. Documentary filmmakers argued that the prohibition on circumvention adversely affects their ability to use portions of motion pictures in documentary films, many of which would qualify as noninfringing uses for the purposes of criticism or comment. Creators of noncommercial videos that incorporate portions of motion pictures contained on CSS-protected DVDs also alleged that the prohibition on circumvention adversely affected their ability to engage in noninfringing criticism or comment.

Based on the record in this proceeding, the Register determines that CSS is a technological measure that protects access to copyrighted motion pictures. She also determined that a substantial number of uses in the record with respect to education, documentary filmmaking, and noncommercial videos qualify as noninfringing uses.

NTIA supports expansion of the existing class of audiovisual works to include all college and university level instructors and students but does not believe the record justifies an expansion that would include elementary and secondary school teachers and students. NTIA also recommended limiting the class to address the use of DVDs included in the educational library or departments of the academic institutions. It also supported the proposal to designate a class of works for the benefit of documentary filmmakers. Finally, it expressed general support for the request to designate a class that would permit extraction of film clips for use in noncommercial videos, but suggested a requirement that the clips from the audiovisual work must be for remix videos that are used for social comment or criticism, or that are used in transformative-type works according to established fair use principles.

Given that all of these proposed classes at issue involved motion pictures on CSS-protected DVDs, the Register recommends that the Librarian designate a single class addressing all of these adversely affected uses of DVDs. However, the Register concludes that the record does not support all of the proposed expansions of the existing class of audiovisual works and that in at least one respect, the record supported a contraction of that class.

What the record does demonstrate is that college and university educators, college and university film and media studies students, documentary filmmakers, and creators of noncommercial videos frequently make and use short film clips from motion pictures to engage in criticism or commentary about those motion pictures, and that in many cases it is necessary to be able to make and incorporate high-quality film clips in order effectively to engage in such criticism or commentary. In such cases, it will be difficult or impossible to engage in the noninfringing use without circumventing CSS in order to make high-quality copies of short portions of the motion pictures. Because not all uses by educators, documentary filmmakers or makers of noncommerical videos will be noninfringing or will require such high-quality copies, the class of works recommended by the Register is not as extensive as what was requested by some proponents, and the class contains some limitations. First, proponents for educators failed to demonstrate that high-quality resolution film clips are necessary for K-12 teachers and students, or for college and university students other than film and media studies students. Because other means, such as the use of screen capture software, exist that permit the making of lower-quality film clips without circumventing access controls, the Register finds no justification in the record for expanding the class of works to include such persons as express beneficiaries of the designation of this class of works.

Second, the circumvention of access controls must be accomplished solely in order to enable incorporation of short portions of motion pictures into new works for purposes of criticism of comment. The justification offered by proponents for designating a class of audiovisual works, and a key element of the Register’s conclusion that the intended uses will frequently be noninfringing fair uses, was that the uses that justify designation of the class were for purposes of criticism and commentary, which are classic “fair use” purposes. Moreover, all of the evidence in the rulemaking demonstrating noninfringing uses involved the use of short portions of motion pictures. While the Register is persuaded that it would be difficult and imprudent to quantify the precise contours of what constitutes a “short portion,” there was no evidence in the record to support the conclusion that anything more than incorporating relatively short portions of motion pictures into a new work for purposes of criticism or commentary would be a fair use. Similarly, in order to meet the requirements of the designated class of works, a new work must be created, whether that work is a compilation of clips for use in the classroom, or a documentary or video incorporating a clip or clips from a copyrighted motion picture.

The final requirement of the recommended class is that the person engaging in the circumvention must reasonably believe that the circumvention is necessary in order to fulfill the purpose of the use - i.e., the noninfringing criticism or commentary. Because alternatives to circumvention such as video capture may suffice in many, and perhaps the vast majority of situations, users must make a reasonable determination that heightened quality is necessary to achieve the desired goal. The justification for designating this class of works is that some criticism and/or commentary requires the use of high-quality portions of motion pictures in order to adequately present the speech-related purpose of the use. Where alternatives to circumvention can be used to achieve the noninfringing purpose, such non-circumventing alternatives should be used. Thus, this limitation seeks to avoid an overly broad class of works given the limited number of uses that may require circumvention to achieve the intended noninfringing end.

The class has also been limited to include only motion pictures rather than all audiovisual works. Because there was no evidence presented that addressed any audiovisual works other than motion pictures, there was no basis for including the somewhat broader class of audiovisual works (which includes not only motion pictures, but also works such as video games and slide presentations).

The Electronic Frontier Foundation (EFF) proposed a class that would allow circumvention of the technological measures contained on certain wireless phone handsets (known as “smartphones”) that prevent third-party software applications from being installed and run on such phones. This circumvention activity is colloquially referred to as “jailbreaking” a phone.

The factual record with respect to this proposed class focused primarily on Apple’s iPhone, although there are allegations in the record involving other mobile phone manufacturers as well. EFF asserted, and Apple’s testimony confirmed, that any software or application to be used on the iPhone must be validated with the firmware that controls the iPhone’s operation. This validation process is intended to make it impossible for an owner of an iPhone to install and use third-party applications on the iPhone that have not been approved for distribution through Apple’s iTunes App Store.

EFF argued that jailbreaking is a noninfringing activity for three reasons. First, it alleged that at least in some cases, jailbreaking can be done within the scope of what is authorized under the license Apple grants to every iPhone user. It stated that “[t]o the extent a jailbreaking technique does not modify any of the individual software programs that comprise the iPhone firmware collection, but instead simply adds additional software components to the collection, the practice may not exceed the scope of the license to `use the iPhone software’ or constitute a `modification’ of any Apple software components, any more than the addition of a new printer driver to a computer constitutes a `modification’ of the operating system already installed on the computer.”

Second, EFF asserted that “to the extent a jailbreak technique requires the reproduction or adaptation of existing firmware beyond the scope of any license or other authorization by the copyright owner, it would fall within the ambit of 17 U.S.C. § 1l7(a).” EFF contended that the iPhone owner is also the owner of the copy of the firmware on the iPhone and that jailbreaking falls within the owner’s privilege “to adapt those copies to add new capabilities, so long as the changes do not “harm the interests of the copyright proprietor.”

Finally, EFF contended that in any event, jailbreaking constitutes fair use of the firmware because jailbreaking is a purely noncommercial, private use of computer software, a largely functional work that operates the phone, and that the phone owner must reuse the vast majority of the original firmware in order for the phone to operate. Because the phone owner is simply modifying the firmware for her own use on the phone, there is no harm to the market for the firmware.

Apple responded that jailbreaking by purchasers of the iPhone is a violation of the prohibition against circumvention of access controls. It stated that its validation system is necessary to protect consumers and Apple from harm. Apple further contended that modifying Apple’s operating system constituted the creation of an infringing derivative work. Specifically, Apple argued that because purchasers of an iPhone are licensees, not owners, of the computer programs contained on the iPhone, Section 117 of the Copyright Act is inapplicable as an exemption to the adaptation right. Apple further argued that the fair use defense codified in § 107 would not apply to jailbreaking activity under the statutory factors.

Based on the record, the Register has determined that the encryption and authentication processes on the iPhone’s computer programs are technological measures that control access to the copyrighted work (the firmware) for purposes of § 1201(a)(1). Moreover, the Register finds that the evidence supports the contention that a technological protection measure is adversely affecting adding applications to the iPhone. The critical question is whether jailbreaking an iPhone in order to add applications to the phone constitutes a noninfringing use.

The Register does not find that the contract between Apple and purchasers of the iPhone authorize modification of the iPhone. Moreover, the Register cannot clearly determine whether the various versions of the iPhone contracts with consumers constituted a sale or license of a copy of the computer programs contained on the iPhone. The contractual language is unclear with respect to particular copies of the computer programs. Although Apple retains ownership of the computer programs, the contracts also expressly grant users ownership of the device. Since the “copy” of the computer program is fixed in hardware of the device, it is unclear what ownership status is to be given to the particular copy of the computer program contained in the device. Apple unquestionably has retained ownership of the intangible works, but the ownership of the particular copies of those works is unclear.

Moreover, the state of the law with respect to the determination of ownership is in a state of flux in the courts. Both proponents and opponents cited case law in support of their respective positions, but the Register finds it impossible to determine how a court would resolve the issue of ownership on the facts presented here. While both parties agreed that the Second Circuit’s decision in Krause v. Titleserv, 402 F.3d 119 (2d Cir. 2005) is “good law,” that case dealt with a situation that is distinguishable in many respects from the present situation. The Register finds that the Krause case does not provide clear guidance as to how resolve the current issue.

However, the Register does find that the proponent’s fair use argument is compelling and consistent with the congressional interest in interoperability. The four fair use factors tend to weigh in favor of a finding of fair use.

Under the first factor in Section 107, it appears fair to say that the purpose and character of the modification of the operating system is to engage in a private, noncommercial use intended to add functionality to a device owned by the person making the modification, albeit beyond what Apple has determined to be acceptable. The user is not engaging in any commercial exploitation of the firmware, at least not when the jailbreaking is done for the user’s own private use of the device.

The fact that the person engaging in jailbreaking is doing so in order to use Apple’s firmware on the device that it was designed to operate, which the jailbreaking user owns, and to use it for precisely the purpose for which it was designed (but for the fact that it has been modified to run applications not approved by Apple) favors a finding that the purpose and character of the use is innocuous at worst and beneficial at best. Apple’s objections to the installation and use of “unapproved” applications appears to have nothing to do with its interests as the owner of copyrights in the computer programs embodied in the iPhone, and running the unapproved applications has no adverse effect on those interests. Rather, Apple’s objections relate to its interests as a manufacturer and distributor of a device, the iPhone.

Moreover, Congress has determined that reverse engineering for the purpose of making computer programs interoperable is desirable when certain conditions are met, and has crafted a specific exemption from Section 1201(a)’s prohibition on circumvention in such cases. While an iPhone owner who “jailbreaks” does not fall within the four corners of the statutory exemption in Section 1201(f), the fact that he or she is engaging in jailbreaking in order to make the iPhone’s firmware interoperable with an application specially created for the iPhone suggests that the purpose and character of the use are favored.

Turning to the second fair use factor, it is customary for operating systems - functional works - to enable third party programs to interoperate with them. It does not and should not infringe any of the exclusive rights of the copyright owner to run an application program on a computer over the objections of the owner of the copyright in the computer’s operating system. Thus, if Apple sought to restrict the computer programs that could be run on its computers, there would be no basis for copyright law to assist Apple in protecting its restrictive business model. The second factor decisively favors a finding of fair use.

Turning to the third factor, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” EFF admitted that because the Apple firmware is necessary in order to operate the iPhone, it is necessary for individuals who jailbreak their phones to reuse the vast majority of the original firmware. However, the amount of the copyrighted work modified in a typical jailbreaking scenario is fewer than 50 bytes of code out of more than 8 million bytes, or approximately 1/160,000 of the copyrighted work as a whole. Where the alleged infringement consists of the making of an unauthorized derivative work, and the only modifications are so de minimis, the fact that iPhone users are using almost the entire iPhone firmware for the purpose for which it was provided to them by Apple undermines the significance of this factor. While the third factor arguably disfavors a fair use finding, the weight to be given to it under the circumstances is slight.

Addressing the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” EFF asserted that the firmware has no independent economic value, pointing out that the iPhone firmware is not sold separately, but is simply included when one purchases an iPhone. EFF also argued that the ability to lawfully jailbreak a phone will increase, not decrease, overall sales of the phones because users will know that by jailbreaking, they can “take advantage of a wider array of third party applications.

Apple responded that unauthorized uses diminish the value of the copyrighted works to Apple. However, Apple is not concerned that the practice of jailbreaking will displace sales of its firmware or of iPhones; indeed, since one cannot engage in that practice unless one has acquired an iPhone, it would be difficult to make that argument. Rather, the harm that Apple fears is harm to its reputation. Apple is concerned that jailbreaking will breach the integrity of the iPhone’s “ecosystem.” The Register concludes that such alleged adverse effects are not in the nature of the harm that the fourth fair use factor is intended to address.

NTIA does not support designating the proposed class. While acknowledging that permitting iPhone jailbreaking could facilitate innovation, better serve customers, and encourage the market to utilize open platforms, NTIA believes “it might just as likely deter innovation by not allowing the developer to recoup its development costs and to be rewarded for its innovation.” NTIA also believes that the proponents’ “public policy” arguments should properly be considered by expert regulatory agencies, the Department of Justice, and the Congress. It concludes that the “Register ought only to consider recommending the proposed class if she concludes that the access control measure would be a bar to actions that the above bodies might take in response to policy judgments made at those agencies.

The Register appreciates that many regulatory and policy issues pertaining to jailbreaking and smartphones fall within the competence of other agencies, and the Register has no desire to interfere with those agencies’ jurisdiction. However, the only question before the Register and the Librarian is whether Section 1201(a)(1)’s prohibition on circumvention is adversely affecting the ability of users of smartphones from engaging in noninfringing uses of the firmware on their devices. No other agency has the power to limit the application of the prohibition on circumvention in this (or any other) context. Any future action by a federal agency to permit jailbreaking will be futile without an exemption from liability under Section 1201(a)(1), but if a class is not designated in this rulemaking, all that it will mean is that Section 1201 cannot be used to prevent jailbreaking, without prejudice to any other legal or regulatory authority that might limit or prohibit jailbreaking.

On balance, the Register concludes that when one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses. Case law and Congressional enactments reflect a judgment that interoperability is favored. The Register also finds that designating a class of works that would permit jailbreaking for purposes of interoperability will not adversely affect the market for or value of the copyrighted works to the copyright owner.

Accordingly, the Register recommends that the Librarian designate the following class of works:

In 2006, the Librarian designated a class of “Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network,” in order to permit the circumvention of access controls that prevent the owner of a cellphone from switching service on that cellphone to another wireless communication network. The access controls in question are embedded in the mobile phone’s firmware or software and prevent the mobile phone owner from gaining access to the settings that connect the mobile phone to a network (e.g., Verizon’s) other than the original network (e.g., AT&T’s). Beneficiaries of that designation have now requested that the Librarian again designate a similar class of works. Representatives of wireless communication networks have opposed the request.

As she did three years ago, the Register recognizes that the requests fall within the zone of interest subject to this rulemaking. That is, circumventing a mobile phone lock, without the authority of the copyright owner, to gain access to the protected work (i.e., the firmware) is likely actionable under Section 1201(a)(1) of the Act. Further, a wireless carrier who is harmed by the circumvention of the software lock may bring an action for violation of Section 1201(a)(1) against anyone who circumvents such a technological protection measure.

The proponents of this class have presented a prima facie case that the prohibition on circumvention has had an adverse effect on noninfringing uses of firmware on wireless telephone handsets. Proponents have shown that mobile phone locks prevent consumers from legally accessing alternative wireless networks with the phone of their choice. This is the same type of activity that was at issue when the existing class of works was being considered in 2006.

The wireless networks asserted that by using a cellphone on another network, an act that is not authorized under their contracts, the customers infringe the exclusive right to reproduce copies of the computer software, because use of the mobile phones necessarily involves the making of copies in the random access memory of the mobile phone. Moreover, they asserted that the alteration of the computer programs in order enable the mobile phones to connect to another network constituted the unlawful making of derivative works, in violation of the copyright owner’s exclusive right to prepare derivative works.

Proponents of the class asserted that the owners of mobile phones are also the owners of the copies of the computer programs on those phones and that as owners they are entitled to exercise their privileges under Section 117 of the Copyright Act, which gives the owner of a copy of a computer program the privilege to make or authorize the making of another copy or adaptation of that computer program under certain circumstances. The wireless networks responded that their contracts with their customers restrict the uses of the customers’ mobile phones and retain ownership of the copies of the computer programs that are loaded onto the mobile phones and enable the phones to operate. They also asserted those contractual restrictions make the networks - and not the customers - the owners of the copies of the computer programs, and therefore the privilege under Section 117 to make copies and adaptations of computer programs does not apply because that privilege is enjoyed only by the owner of the copy of the computer program. They also argued that the privilege does not extend to the customers’ conduct because the making of a new copy or adaptation in order to use the mobile phone on a network other than the original network is not, as the statute requires, “an essential step in the utilization of the computer program in conjunction with a machine.“

The Register has reviewed the appropriate case law with respect to who is the “owner” of a copy of a computer program for purposes of Section 117 when a license or agreement imposes restrictions on the use of the computer program and has concluded that the state of the law is unclear. The Register cannot determine whether most mobile phone owners are also the owners of the copies of the computer programs on their mobile phones. However, based on the record in this proceeding, the Register finds that the proponents of the class have made a prima facie case that mobile phone owners are the owners of those copies. While the wireless networks have made a case that many mobile phone owners may not own the computer program copies because the wireless network’s contract with the consumer retains ownership of the copies, they have not presented evidence that this is always the case even if their interpretation of the law governing ownership is correct. The record therefore leads to the conclusion that a substantial portion of mobile phone owners also own the copies of the software on their phones.

The Register also concludes that when the owner of a mobile makes RAM copies of the software in order to operate the phone - even if she is operating it on another network - she is making a noninfringing use of the software under Section 117 because the making of that copy is an essential step in the utilization of that software in conjunction with a machine.

Similarly, the making of modifications in the computer program in order to enable the mobile phone to operate on another network would be a noninfringing act under Section 117. As a general rule, anyone who wishes to switch her mobile phone from one network to another must alter some information embedded in the device. However, in a substantial number of cases those alterations do not appear to implicate Section 117 because the elimination and insertion of codes or digits, or completely reflashing a phone, cannot be considered an infringement of the computer program controlling the device. When specific codes or digits are altered to identify the new network to which the phone will connect, those minor alterations of data also do not implicate any of the exclusive rights of copyright owners. And complete reflashing does not even constitute circumvention of an access control because it actually deletes the copy of the entire work that had been protected by the access control, thereby permanently denying access to that work.

In those cases where more substantial changes must be made to the computer program in order to enable use of the mobile phone on another network, those changes might implicate the exclusive right to prepare derivative works. However, those changes would be privileged under Section 117, which permits the making of “a new copy or adaptation” that is created as an essential step in the utilization of the computer program in conjunction with a machine.

Section 1201(a)(1)(C) factors. As was the case in 2006, the Register finds that the four factors enumerated in Section 1201(a)(1)(C)(i)-(iv) do not weigh either in favor of or against designation of the proposed class of works. Moreover, because it appears that the opposition to designating the proposed class is based primarily on the desires of wireless carriers to preserve an existing business model that has little if anything to do with protecting works of authorship, it is appropriate to address the additional factor (“such other factors as the Librarian considers appropriate”) set forth in Section 1201(a)(1)(C)(v). It seems clear that the primary purpose of the locks is to keep consumers bound to their existing networks, rather than to protect the rights of copyright owners in their capacity as copyright owners. This observation is not a criticism of the mobile phone industry’s business plans and practices, which may well be justified for reasons having nothing to do with copyright law and policy, but simply a recognition of existing circumstances. Because there appear to be no copyright-based reasons why circumvention under these circumstances should not be permitted, the Register recommends that the Librarian designate a class of works similar to the class designated in 2006.

The Register notes that the 2006 class, and the new one designated herein, are both narrow, apply only to claims under Section 1201(a)(1), and do not establish a general federal policy of ensuring that customers have the freedom to switch wireless communications service providers. The designated classes, both new and old, simply reflect a conclusion that unlocking a mobile phone to be used on another wireless network does not ordinarily constitute copyright infringement and that Section 1201(a)(1), a statute intended to protect copyright interests, should not be used to prevent mobile phone owners from engaging in such noninfringing activity.

NTIA supported designation of a class similar to the class designated in 2006, but proposed that while non-profit entities should be permitted to take advantage of the exemption, commercial users should not. The Register’s recommendation, in contrast, would permit some commercial activity, so long as it (1) involves only used handsets, (2) is done by the owner of the copy of the computer program, and (3) is done “solely in order to access such a wireless telecommunications network and access to the network is authorized by the operator of the network.” The Register believes that these limitations ensure that the designation of this class will not benefit those who engage in the type of commercial activity that is at the heart of the objections of opponents of the proposed class: the “bulk resellers” who purchase new mobile phone handsets at subsidized prices and, without actually using them on the networks of the carriers who market those handsets, resell them for profit. The type of commercial activity that would be permitted would be the resale of used handsets after the owners of the handsets have used them and then given or sold them to somebody else, who then resells them just as a used bookstore sells used books. The Register acknowledges that NTIA’s general view that the class should not extend to any commercial activity is inconsistent with aspects of the Register’s recommendation, but believes that to the extent her recommendation goes beyond what NTIA was willing to endorse, it does so in a way that, in NTIA’s words, “prevents unlawful use by those that would misuse the exemption for commercial purposes.”

However, the applicability of the proposed class to commercial recyclers, such as the ones who had proposed the original class of works, is limited. When the commercial recycler has made a derivative work that is within Section 117’s privilege for making “adaptations,” the recycler is subject to a significant limitation contained within Section 117: such adaptations may be transferred only with the authorization of the copyright owner. Thus, a recycler who prepares such an adaptation may not transfer ownership of the copy of the adapted computer program to anybody else without the authorization of the copyright owner. On the other hand, a recycler who has not prepared an adaptation is free to resell the mobile phone along with the copy of the computer program contained within it.

The new class is also cabined by existing law in two important respects. First, as with any regulation under Section 1201(a)(1)(C) and (D), the designation of this class offers no safe harbor from liability under Section 1201(a)(2) which strictly prohibits an entity from offering a circumvention service. Second, a wireless carrier’s “Terms of Purchase” and “Terms of Service”, which are binding contracts, still impose use restrictions on consumers notwithstanding the designation of this class. However, the wireless carrier must seek a remedy by asserting a claim of breach of contract, and not a claim under Section 1201(a)(1).

•The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and

•The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

Professor J. Alex Halderman proposed two classes of works relating to investigating and correcting security flaws or vulnerabilities created or exploited by technological measures protecting certain kinds of works. The Register concludes that Halderman has made the case for a class pertaining to video games, but has not made the case for a broader class pertaining to literary works, sound recordings and audiovisual works.

In each case, Halderman qualified the scope of the proposed class by restricting it to (1) lawfully obtained works protected by access control measures that create or exploit security flaws or vulnerabilities that compromise the security of personal computers, and (2) cases where circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities.

In the current proceeding, Halderman did not present any evidence that the prohibition on circumvention is adversely affecting or is likely, in the next three years, to adversely affect the ability to engage in noninfringing uses of sound recordings or audiovisual works, or of literary works except to the extent that video games may be considered, in part, to constitute audiovisual works associated with such sound recordings. There is no information in the record that would justify again exempting the class designated three years ago.

However, Halderman did present evidence and legal analysis in support of a class of works limited to video games. Under Section 102(a) of the Copyright Act, video games are “hybrid” in that they fall within two statutory classes of works. Video games typically are, in part, computer programs, which are a subset of the statutory category of “literary works.” The evidence related to two types of access controls applied to video games: Macrovision’s SafeDisc software and Sony’s SecuRom software. Halderman asserted that the measures constitute access controls because, in both cases, the measures authenticate discs and enforce access policies.

The alleged underlying noninfringing use involved is two-fold. First, purchasers of video games (including researchers) are engaged in noninfringing use when they install, access, and play authorized copies of such video games while further seeking to protect the security of their computers. Second, researchers in lawful possession of copies of games are engaged in noninfringing uses when they seek solely to research and investigate whether a video game, or the technological measure protecting it, creates security vulnerabilities or flaws. Professor Halderman asserted that such good faith research that does not cause or promote infringement generally constitutes fair use.

Halderman alleged that SecuROM may create security flaws or vulnerabilities. He referred to a number of articles and class action lawsuits suggesting that SecuROM may contain flaws or cause vulnerabilities. He further stated that a single definitive scientific study might quell the “panic, protests, and litigation” to “what may turn out to be nonexistent or easily reparable faults.”

Halderman also alleged that harm is caused by Macrovision’s SafeDisc. He alleged that SafeDisc was pre-installed on “nearly every copy of the Microsoft Windows XP and Windows 2003 operating systems, [and that] the vulnerability affected nearly one billion PCs, two thousand times more than the [Sony] rootkit,”“ the security vulnerability that serviced as the factual basis for designating a class in the last rulemaking. He claimed that the security flaw created by SafeDisc was much more dangerous than the Sony rootkit flaw involved in the previous rulemaking that concluded in 2006, because this flaw allowed attackers to execute unrestricted `kernel-level’ code and read or write to any area of the hard disk or memory of the PC, thus facilitating the complete compromise of the security of the PC.

Opponents raised three principal arguments against Halderman’s proposal. First, they argued that he provided little concrete or documented evidence that any security flaws or vulnerabilities associated with access control mechanisms used in connection with video games exist. Second, they argued that there is no evidence that research has been chilled, pointing to what they called a robust ecosystem within which security experts routinely identify such flaws, collaborate on remedies, and disseminate information to alert computer users of the problems and them to solutions. Third, they argued that Professor Halderman failed to establish that the conduct at issue is prohibited by Section 1201(a)(1), since a statutory exemption (in particular, 17 U.S.C. 1201(j) might apply to the security research.

NTIA has advised the Register that he believes the record supports designating the requested class relating to video games and other works accessible on personal computers. NTIA believed that the proponents have “persuasively argued that without a research exemption, research into all current and future vulnerabilities will be and is chilled now,” and concurred with the Librarian’s conclusion in 2006 that the research may not be covered completely by the existing statutory exemptions. NTIA further believes that although the Sony Rootkit vulnerability no longer exists, “it seems to be a certainty that new vulnerabilities will emerge in the next three years.”

Overall, the Register has concluded that the factors set forth in 17 U.S.C. 107 tend to strongly support a finding that such good faith research constitutes fair use. The socially productive purpose of investigating computer security and informing the public do not involve use of the creative aspects of the work and are unlikely to have an adverse effect on the market for or value of the copyrighted work itself. The proponents established an underlying noninfringing use.

The next question is whether the prohibition is causing an adverse effect on such noninfringing uses. The record is essentially limited to SecuRom and SafeDisc. The evidence relating to SecuRom tends to be highly speculative, but Professor Halderman asserted that “this situation has been crying out for an investigation by reputable security researchers in order to rigorously determine the nature of the problem that this system cause[s], and dispel this uncertainty about exactly what’s going on.” He believed that the prohibition on circumvention is at least in part to blame for the lack of rigorous, independent analysis.

In contrast to SecuROM, SafeDisc has created a verifiable security vulnerability on a large number of computers. Opponents of the proposed class did not dispute that SafeDisc created a security vulnerability, but they argued that the security flaw was patched by Microsoft in 2007, without the need of an exemption. However, SafeDisc was pre-loaded on nearly every copy of Microsoft’s Windows XP and Windows 2003 operating systems and was on the market for over six years before a security researcher discovered malware exploiting the security. The vulnerability had the capacity to affect nearly one billion PCs.

The record supports the conclusion that since the 2006 rulemaking, substantial vulnerabilities have existed with respect to video games - certainly with respect to SafeDisc and possibly with respect to SecuROM. Within the same class of works, security researchers have proposed investigation of unconfirmed allegations of security vulnerabilities on another technological protection measure (SecureROM) that protects access, but have expressed unwillingness to do so without clear legal authority. Aggregating the evidentiary record, the proponents have shown that they need to be able to fix flaws that are identified in this class of works and they need to be able to investigate other alleged security vulnerabilities in this class.

Opponents argued that there may be no need to designate a class in this proceeding because circumvention may already be excused pursuant to Section 1201(j), which provides an exemption for security testing. However, the Register has concluded, as she did three years ago, that it is unclear whether Section 1201(j) applies in cases where the person engaging in security testing is not seeking to gain access to, in the words of Section 1201(j), “a computer, computer system, or computer network.” Therefore, it is appropriate to designate a class of works in this proceeding.

Section 1201(j) does, however, influence both the decision to recommend designation of a class and the decision on how to fashion the class. Section 1201(j) is evidence of Congress’s general concern to permit circumvention under appropriate circumstances for purposes of security testing, and it also is evidence of the conditions Congress believes should be imposed on those who take advantage of an exemption for security testing. Accordingly the Register recommends that the Librarian designate a class of video games protected by access controls, when circumvention is done for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities. Further refinements to the class include a requirement that the information derived from the testing be used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and a requirement that that information be used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

Three years ago, the Librarian designated the above-referenced class of works, which is similar to classes of works designated in each of the previous rulemakings. In the current proceeding the proponent of that class, Joseph V. Montoro, Jr., on behalf of Spectrum Software, Inc., has proposed an expanded class of works related to dongles. Dongles are a type of hardware that attach to either the printer port or the USB port of a computer in order to make secured software function. Montoro stated that dongles are sold along with certain types of software and are necessary for the user to access that software on a computer. He further explained that in order for the dongle to operate properly, the operating system must support the hardware and the required device driver must be installed. Montoro submitted that there are four situations where an exemption is necessary to rectify actual harm: (1) when dongles become obsolete; (2) when dongles fail; (3) where there are incompatibilities between the dongle and the operating system, and (4) where there are incompatibilities between the dongle and certain hardware. Montoro had stressed that his proposal is as much about the computer ecosystem as it is about dongles, in particular. He said that it is important to realize that the dongle, the operating system software and the computer hardware work in tandem and that the proposed class necessarily covers all of these parts.

Representatives of the computer software industry stated that they do not oppose renewing the existing class of works, but object to expanding it beyond its current terms.

As in 2006, the Register finds that the case has been made for designation of a class of works protected by dongles. Montoro has effectively met his burden of proof for a class relating to dongles that are malfunctioning or damaged and that are obsolete, a point on which there is no disagreement in the record. When the dongle no longer functions and is obsolete, there is a substantial adverse effect on noninfringing uses because there is no other means to access the lawfully acquired software. When a dongle malfunctions or becomes obsolete, a person lawfully entitled to access the software should be able to rely on self-help if remedial measures are not reasonably available in the commercial marketplace. Moreover, the record reveals no evidence of harm to the market for, or value of, copyrighted works protected by dongles since the designation of the original class of works in 2000.

The class, however, should not include cases where a replacement dongle is reasonably available or can be easily repaired. Some copyright owners legitimately use dongles to control access to a computer program by unauthorized users and are entitled to the full benefit of the prohibition as long as reasonable accommodations are offered for malfunctioning or damaged dongles. Montoro has not demonstrated that the standard previously applied - reasonably available in the marketplace - is insufficient to meet the needs of users of copyrighted works whose dongles malfunction or are damaged.

Montoro also argues that the current class should be expanded to reach situations involving incompatibility between the dongle and a new or upgraded version of an operating system. The Register finds that he has failed to submit cogent evidence to support an expanded class in this context. A sufficient record would require more detail about the precise cause of the problems, the scope of the problem, and the noninfringing means available to resolve the problem.

The evidence presented in the record also does not support Montoro’s request to expand the class in relation to obsolete hardware, specifically parallel ports on computers. While it appears to be the case that parallel ports may be obsolescent, there is insufficient evidence in the record to support the conclusion that parallel ports are currently, or in the next three years will be, obsolete. In order to make a case for an expanded class in relation to obsolete hardware, Montoro would have to demonstrate that the hardware is, or is likely to be, obsolete in the next three year period (either as a pre-installed item or as an optional configuration), that the unavailability of this obsolete hardware would adversely affect noninfringing uses, and that copyright owners are not meeting the legitimate needs of existing users.

Two proposals sought designation of classes of works that would allow circumvention of technological protection measures in order to provide access to motion pictures on platforms other than those authorized by content providers or their licensees.

Megan Carney proposed a class of works in order to allow circumvention of DRM-protected streaming videos offered by subscription based services, where the provider has made players available only for a limited number of platforms. She argued that this restriction of viewing options effectively constitutes an access control by requiring a specific operating system version and/or set of hardware to view purchased material. She sought to use Netflix’s “Watch Instantly” streaming video feature, which installs digital rights management and runs only on certain platforms of computer software and hardware. “Watch Instantly” is included, at no charge, in the monthly Netflix membership, but Carney said that she is unable to use it because she does not own a computer that operates on a compatible platform (PCs running Windows or Apple computers with Intel chips). Carney proposed that the Librarian designate a class or works in order to allow a user in her situation to create a separate program to circumvent the DRM on the streaming service system in order to view streaming video content made available by Netflix.

Another proponent, Mark Rizik, proposed a class of works to allow the circumvention of motion pictures on DVDs protected by the CSS access control system, which requires the use of a certain platform for access. Specifically, Rizik would like to view, on a Linux-based computer that does not have a CSS-licensed video player, DVDs that are only viewable on CSS-licensed players. Rizik sought designation of a class in order to permit the creation of an unencrypted digital copy of the DVD by decrypting and extracting contents of DVDs for personal viewing purposes on Linux operating systems.

The Motion Picture Association of America, Time Warner, and a coalition of copyright industry trade associations (the “Joint Creators”) opposed these requests. NTIA has advised that it believes that the record does not support granting the requests.

The proponents of both classes of works sought to circumvent the access controls because, they contended, it is too expensive to acquire the hardware and software with the minimum requirements necessary to view motion pictures on the distribution mechanism of their choice. They also argued that there are no reasonable, noninfringing alternatives to circumvention for those wishing to engage in the activity affected by these platform requirements.

Similar classes to those proposed by Carney and Rizik have been requested and denied in the past three rulemakings. Although the streaming video proposal presents a new factual situation, the Register concludes that the legal arguments are fundamentally similar to the proposals relating to the viewing of DVDs on computers with Linux operating systems that were advanced in the previous three rulemakings, when those proposals were rejected. Likewise, arguments for the streaming video and Linux classes fail for fundamentally the same reasons as the earlier Linux proposals, and the Register cannot recommend that the Librarian designate either of these proposed classes of works.

In these rulemakings, proposed classes have regularly been rejected in cases where a user who wished to engage in a noninfringing use of a work using a particular device already had the ability lawfully to engage in the same noninfringing use of the work using a different device. The same principle applies here. Alternative means exist to gain access to and view the motion pictures that Carney and Rizik wish to view after circumventing access controls. In any event, it is unclear from the record regarding streaming videos what is actually prohibiting Carney from being able to access the Netflix “Watch Instantly” feature and, in particular, whether the technological issue is centered around an access control. It cannot be discerned from the record whether Carney cannot gain access due to digital rights management or due to software and/or hardware incompatibility.

Regarding DVD circumvention, many operating systems on the market enable authorized access to the works contained on CSS-protected DVDs. Moreover, CSS-compatible DVD players are in fact available for some Linux systems.

Further, many alternatives exist for both Carney and Rizik, including other streaming video alternatives and online content download sites. There are many reasonably-priced alternatives that may fulfill consumers’ wants and needs, including purchasing a DVD player. Mere consumer inconvenience is not sufficient to support the designation of a class of works. The statute does not provide that this rulemaking is to enable the most convenient method of consuming video content. The proponents have merely advanced requests in order to satisfy their convenience and preferences as to how they would like to access media and have failed to demonstrate a need for remedial action. Accordingly, the Register cannot recommend the Librarian designate either proposed class in light of the alternatives that exist in the marketplace today.

Lawfully purchased sound recordings, audiovisual works, and software programs distributed commercially in digital format by online music and media stores and protected by technological measures that depend on the continued availability of authenticating servers, prior to the failure of the servers for technologists and researchers studying and documenting how the authenticating servers that effectuate the technological measures function.

Christopher Soghoian of the Berkman Center for Internet & Society at Harvard University has proposed two classes of works to allow the circumvention of technological measures that depend on the continued availability of authenticating servers (or “DRM servers”) for the following uses: (1) by consumers, for access to and ordinary enjoyment of purchased works, and (2) by technologists and researchers, documenting the function of the technological measures. The technological measures in question regulate user access to copyrighted works via connections to remote online authenticating servers, and therefore always require that the server be operational; if the server is shut down, the authentication process cannot take place and access for the user will be denied.

Joint Creators and Time Warner opposed Soghoian’s requests, and NTIA has advised the Register that it believes that the record does not support them.

Soghoian’s first proposal, regarding DRM servers that control access to lawfully purchased sound recordings, audiovisual works and software programs, was based upon several recent instances where “online music and media stores” that tethered their commercial distribution of digital works to DRM servers ceased operations. The proposal would not permit circumvention of operational DRM servers, but would cover only situations in which the particular authentication server has ceased to function. Soghoian argued that when the DRM servers malfunction or are shut down by their operators, consumers lose the ability to engage in the legitimate, noninfringing usage of content that they lawfully purchased and reasonably expected to continue using. However, there is no evidence that such a loss of rights has actually occurred thus far.

Soghoian argued that, given the record he presents of digital media stores shutting down their DRM servers, and given the increased migration of customers from physical CDs to downloads, it is likely that in the next three years at least one DRM-media store and/or its authenticating servers will shut down, adversely affecting the ability to engage in noninfringing use of the protected works by those who purchased them. He proposed that exempting circumvention of DRM server technology after a server has stopped functioning is a reasonable remedy for these adverse effects under three of the four Section 1201(a)(1)(C) factors.

The Register cannot recommend this proposed class for the simple reason that the proponent has not sustained his burden of demonstrating that the prohibition on circumvention of access controls either has produced, or is likely to produce, any adverse effects on noninfringing uses of the proposed class of works. Here, no such instances of adverse effects have been shown. If, in the absence of current adverse effect, designation of a class of works is to be based solely upon anticipated harm, “the evidence of likelihood of future adverse impact during that time period [must be] highly specific, strong and persuasive.” Evidence of such a compelling nature is lacking here as well.

The fundamental question in evaluating this proposal is whether the adverse effects complained of by the proponent, “DRM-based stores that cease to operate or abandon their authenticating server system cause their customers to lose full, and often any, access to, and thus use of, their lawfully purchased works,” are real, verifiable and reasonably likely to recur. There are several persuasive reasons in the record to answer this question in the negative.

Regarding the three categories of copyrighted works that Soghoian identified in his proposal, he presented no information that one of them, software in this instance, is even being sold by online retailers using authentication servers. Thus, the Register’s review of adverse effects must be restricted to sound recordings and audiovisual works. Soghain asserts that such works were sold by two entities, Circuit City and Google, who, upon deciding to withdraw from the market, fully refunded their customers’ purchase costs. In his testimony, Soghoian stated that he was willing to narrow the proposed class to permit circumvention only “in the event that the service does not provide any remedy for consumers.” He further stated that a “refund is a totally appropriate and satisfactory remedy.” Since the record of DRM-protected audiovisual works reveal only two defunct services and reveals that both provided acceptable remedies, there is no reason for the Register to consider this category of works in her determination.

With regard to sound recordings, of the three retailers who stopped selling DRM-protected works, Yahoo Music has provided full refunds. The two others, MSN Music and Walmart, announced in response to consumer backlash that they would keep their servers operational. The record demonstrates that, thus far, there have been no adverse effects on the noninfringing use of DRM-protected sound recording downloads since purchasers retain identical access and use abilities.

Soghoian’s proposed class focused more on future harm, arguing that “there is no reason to believe that other companies or services that fail or are shut down in the future will provide similar corrective steps.” He predicted that companies smaller than Microsoft and Walmart will not have the resources to provide refunds or keep authentication servers operating and that given the state of the economy, more companies will be jettisoning their DRM-protected music businesses and may decide simply to deactivate their authentication servers without advance warning. This appears to be pure conjecture. Soghoian presented no evidence supporting his claim that if another online retailer decides to disable its authentication server, it will leave affected consumers without a remedy. To the contrary, the record shows that the two companies (MSN Music and Walmart) that have discontinued their services are still keeping the servers operational. Thus, the prediction that, within the next three years, consumers will be prevented from accessing and using DRM-protected works due to the cessation of operations by an authentication server is purely hypothetical.

The Register therefore recommends rejection of this proposed class.

Soghoian’s second proposal relates to circumvention of the same DRM servers controlling access to the same categories of works as his first proposal. However, instead of being for the direct benefit of consumers, it would aid “technologists and researchers studying and documenting how the authenticating servers that effectuate the technological measures function.” Such study and documentation, the proposal states, would take place “prior to the failure of the servers.” This is intended to support Soghoian’s first proposed user class by providing consumers with documentation about how DRM servers function, so that they can actually understand how to engage in circumvention of works in his first proposed class.

Soghoian’s legal argument in support of the “researcher” class rested upon a comparison with a similar class relating to “rootkits” that was designated in the 2006 rulemaking, where the Librarian designated a class to permit circumvention technological measures that (1) control access to lawfully purchased sound recordings and associated audiovisual works on CDs and (2) create or exploit security flaws or vulnerabilities that compromise the security of personal computers, when circumvention is accomplished solely for the purpose of good faith testing, investigating, or correcting such security flaws or vulnerabilities. Soghoian’s proposal focused on the purpose of the existing “rootkit” class, contending that because his researcher class is also intended solely for good faith testing, investigation, and correction, it too meets the requirements for exemption from the anti-circumvention statute. He did point out, however, that the cases of failed DRM and copy protection systems do not easily fit into the category of “security flaw or vulnerability.”

Soghoian’s proposed “research” class of works ultimately rests upon the same speculative argument as his “user” class. Since the record makes clear that the purpose of designating the research class is to facilitate circumvention of works in the “user” class, the arguments supporting the research class fail on the same basis as those supporting the user class. Accordingly, the Register recommends the rejection of this proposed class.

Glenn Pannenborg proposed designating a class of works for the benefit of forensic investigators (i.e., court-appointed evidence examiners) seeking evidence in a court proceeding. According to Pannenborg, forensic examiners practicing in the fields of financial or information technology may be faced with evidence that is recorded, produced, stored, manipulated or delivered by software covered under 17 U.S.C. 1201, or evidence that may be the software itself, as in a patent or licensing dispute. He asserted that in order to obtain access to such evidence, a forensic investigator may have to circumvent a technological protection measure in violation of Section 1201(a)(1)(A).

Joint Creators opposed Pannenborg’s proposal, and NTIA has advised the Register that it believes the record does not support granting the request.

The Register finds that the proponent in this case has not met the statutory burden of proof. Pannenborg failed to intelligibly describe the nature of authorship of the proposed class of works. Moreover, he presented no compelling evidence, and provides no concrete examples, that noninfringing uses of works in the proposed class have been or will be affected by the circumvention ban. Indeed, he provided little information about the works to which he has apparently been denied access. Because of the lack of such information in the record, an evaluation of whether and the extent to which the prohibition on circumvention caused an adverse effect on noninfringing uses was not possible. The Register, therefore, declines to recommend that the Librarian designate this proposed class of works.

In the 2006 rulemaking, a number of commenters sought the designation of classes of works that target broadcast flags for television and radio broadcasts, noting that such restrictions could possibly interfere with the personal recording of digital broadcast content for time-shifting and format-shifting purposes. The Register rejected those requests, stating that there was no broadcast flag mandate in effect for either television or radio at that time and concluding that no relief could be granted based upon non-existent regulations. The broadcast flag can be described as a digital code embedded in a digital television (“DTV”) broadcasting stream, which prevents digital television reception equipment from redistributing broadcast content. The FCC had broadcast flag restrictions, but they were overturned by the United States Court of Appeals for the District of Columbia Circuit.

In the current proceeding, Matt Perkins proposed a new “broadcast flag” class based upon the belief that broadcasters and copyright owners will experiment with copy protection measures to restrict the recording of broadcast television content after the completion of the transition to DTV. He asserted that consumers will experience frustration if their television recording privileges are in any way restricted.

The National Association of Broadcasters (“NAB”) opposed this request, and NTIA advised the Register that it believes the record does not support the request.

Perkins has failed to make his case for designating the proposed class. He has generally stated that a broadcast flag would interfere with the recording of digital television programming for personal use. However, he has not met his burden of proof in showing that regulatory action by the Librarian is warranted. There is no broadcast flag mandate for digital television broadcasts in effect, and it is highly speculative as to whether broadcasters and copyright owners will work to implement measures to restrict consumer recording privileges in the new DTV era.

In addition, the record does not indicate that there currently are any devices that include broadcast flags. Furthermore, Perkins’ theory in support of his request lacks any explanation or justification as to what noninfringing use would be prevented by the prohibition on circumvention with respect to the broadcast flag and fails to provide evidence that actual harm exists or that it is “likely” to occur in the ensuing three year period. The proposed class is also misguided because it affects redistribution of content and does not appear to be related to an access control technology measure for purposes of Section 1201(a)(1). For the reasons stated above, the Register cannot recommend that the proposed request be granted.

Matt Perkins proposed a class of works based on audiovisual works embedded in Blu-ray discs. He stated that the Blu-ray disc’s data structure allows a disc publisher to assign an image constraint token to an audiovisual work. He further explained that a licensed Blu-ray disc player responds to that token by “down-rezzing” the electronic video signal when conveyed over an “untrusted” analog connection (i.e., a trio of RCA cables). He asserted that no such constraints occur when the signal is conveyed over the preferred, “trusted” digital pathway (High-Definition Multimedia Interface [“HDMI”] incorporating High-bandwidth Digital Content Protection [“HDCP”]). He argued that ICT denies access to discarded video details until a condition is satisfied (HDMI connectivity), and therefore that ICT qualifies as an access control measure under Section 1201. He admitted that there is little evidence that ICTs are currently embedded in available Blu-ray discs, but nevertheless asserted that the possible inclusion of an image constraint token will cause user frustration because program content will not be seen in the promised high definition format.

Advanced Access Content System Licensing Administrator, LLC (“AACS LA”) opposed the request, and NTIA has advised the Register that it believes the record does not support granting the request.

Perkins’ request cannot withstand scrutiny. He has failed to meet his burden of proof demonstrating that relief is warranted with regard to the willful down-conversion of high definition programming recorded on Blu-ray discs. He has not shown that the prohibition on circumvention has had or is likely to have a substantial adverse effect on a clearly identifiable noninfringing use. Similarly, he has not demonstrated the existence of actual harm, or the likelihood of future harm that designation of the proposed class would necessarily rectify. Specifically, he has not provided evidence that ICTs are currently being used on Blu-ray discs to restrict users from accessing the highest resolution format offered by Blu-ray discs. Further, the request is unnecessary because the potential problem described by Perkins is a rapidly disappearing legacy issue related to early generation high definition televisions. The Register recommends that the proposed class of works be rejected.

In 2006, the Librarian designated a class consisting of “Literary works distributed in ebook format when all existing electronic book (“ebook”) editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.” The American Foundation for the Blind (“AFB”), which was the principal proponent of ebook exemptions in 2003 and 2006, has proposed that the Librarian redesignate the existing class to ensure that people who are blind or visually impaired are not excluded from the digital revolution in education, information and entertainment.

In support of its proposal, AFB offered an examination of five ebooks, two which it tested in the PDF format and three which it tested in the Microsoft Lit format. AFB stated that of these five books, only one—or twenty percent of the sample—was accessible. In order to make its case, the AFB had to demonstrate that the prohibition on circumvention has adversely affected, or is likely to adversely affect, users’ ability to make noninfringing uses of a particular class of works. There was no dispute that making an ebook accessible to blind and visually impaired persons is a noninfringing use. Therefore, the main question is whether the prohibition on circumvention of technological measures that control access has adversely affected the ability of blind and visually impaired persons to gain access to the literary content in ebooks.

In short, the proponents surveyed five ebook titles and found that three (Brian’s Hunt, The Bridges of Madison County, and The Einstein Theory of Relativity) were not accessible in editions published in the Microsoft Lit format, one (The Sign of the Fish) was not accessible in an edition published in the Adobe PDF format, and one (The Complete Works of Edgar Alan Poe Volume 1) was accessible in the Adobe PDF format. Thus, four out of the five titles sampled were available in formats that were not accessible.

Proponents of the class presented no other factual information relating to whether (and the extent to which) the prohibition on circumvention actually has had an adverse effect on the ability of blind and visually impaired persons to engage in the noninfringing use of reading ebooks by using screen readers and the read-aloud function offered in many ebooks.

Joint Creators did not oppose the request, but did question whether the prohibition on circumvention of access controls was to blame for the discrepancy between access for the fully sighted and access for the visually impaired. NTIA has advised the Register that it believes that an exemption based on this proposals should be renewed. NTIA did not state that the record supports granting the requested exemption; in fact, it observed that the case made by proponents is weak. Nevertheless, NTIA concluded that despite the limited level of information provided, it is persuaded that harm to these uses and users is likely to exist.

In reviewing the evidence presented in support of designating the proposed class, the first issue that is readily apparent is that two of the five works examined by AFB (The Einstein Theory of Relativity and The Complete Works of Edgar Alan Poe Volume 1) are in the public domain. Section 1201 does not prohibit circumvention of a technological protection measure when it simply controls access to a public domain work; in such a case, it is lawful to circumvent the technological protection measure and there is no need for an exemption. Thus, the two works in the public domain included in the tiny sample - forty percent of the entire sample - are irrelevant to the case for an exemption. Even though one of these two public domain works was found to be inaccessible, the prohibition on circumvention cannot be said to be adversely affecting uses of that work given that the prohibition does not apply to public domain works.

Two of the other ebooks cited in support of designating the class -- Brian’s Hunt and The Bridges of Madison County, -- are alleged to be inaccessible in Microsoft Lit format. However, the proponents did not state whether those titles are accessible and available in other formats, such as the widely-used PDF format. Because the proposed class, like the classes approved in 2003 and 2006, requires that “all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format,” the evidence relating to these two titles is insufficient to justify the designation of the proposed class. If Brian’s Hunt and The Bridges of Madison County are available in other editions that provide read-aloud and screen reader accessibility, then they are not examples of works justifying redesignation of the class. In failing to even check to see whether Brian’s Hunt and The Bridges of Madison County are available in an accessible format, the proponents failed to meet their burden of proof with respect to those two titles.

The final book offered as an example of inaccessibility was The Sign of the Fish, by Joann Klusmeyer. The proponents of the class stated that the book “opened in Acrobat, but content was not accessible.” Nothing was said about whether the book was also available in other formats (and, if so, whether those formats were accessible). Again, the proponents presented insufficient evidence to evaluate whether yet another of the limited number of titles in their sample was inaccessible in all ebook formats.

Although the Register could recommend against designation of the proposed class based simply upon the proponents’ failure to provide sufficient evidence to evaluate whether any of the three non-public domain books cited by the proponents are inaccessable in all ebook formats, the Register’s staff conducted some additional research to determine whether the case could be made that any or all of those books are inaccessible in all formats. With respect to Brian’s Hunt and The Bridges of Madison County, a quick review of the market revealed that both of these works are available as digital texts through Bookshare.org. However, The Sign of the Fish is not available in any edition that permits the enabling of the ebook read-aloud function or of screen readers. However, the Register cannot conclude that the prohibition on circumvention has had an adverse effect on the noninfringing use of reading ebooks with screen readers or the read-aloud function when the evidence reveals the case is built upon a single obscure book.

The Register fully supports universal accessibility to ebooks for the blind and visually impaired. However, the rulemaking established by Congress requires proponents to demonstrate, de novo, in each rulemaking proceeding, that relief relating to a particular class of works is warranted for the ensuing three-year period. The Register is sympathetic to the needs of the blind and visually impaired, and agrees that as a matter of policy, access to e-books for the visually impaired should be encouraged and that, when there is evidence that the prohibition on circumvention is having an adverse impact on that goal, an appropriate class of works should be designated in this rulemaking. The Register has not hesitated to recommend such classes when the record has supported such a recommendation. However, unless the burden of presenting a prima facie case is met, the statutory standard established for this rulemaking does not permit the designation of a class of works. Presenting strong policy arguments in favor of exempting a class of works from the prohibition on circumvention is only part of the battle that a proponent must wage; it is also necessary to provide sufficient facts to justify a finding that the prohibition actually is having or is likely to have an adverse effect on noninfringing uses.

For all of the reasons set forth above, the Register finds no factual basis for designating the proposed class of works. While the Register’s recommendations in previous rulemakings made clear that the Register understands and accepts the legal and policy reasons for such an exemption, the constraints established by Congress in this rulemaking proceeding do not permit the designation of a class of works in the absence of a factual record that supports the need for the designation. No such showing has been made in this proceeding.

Having considered the evidence in the record, the contentions of the parties, and the statutory objectives, the Register of Copyrights recommends that the Librarian of Congress publish the five classes of copyrighted works designated above, so that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of those particular classes of works.

Having duly considered the recommendation of the Register of Copyrights as summarized above and having accepted that recommendation with respect to all but one of the classes of works under consideration, the Librarian of Congress is exercising his authority under 17 U.S.C. 1201(a)(1)(C) and (D) and is publishing as a new rule the six classes of copyrighted works that shall be subject to the exemption found in 17 U.S.C. 1201(a)(1)(B) from the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A).

The Librarian has considered but rejected the Register’s recommendation with respect to the proposed class of works consisting of literary works distributed in ebook format. This class of works was proposed by the American Foundation for the Blind (AFB) and is identical to that for which an exemption was granted in 2006 and similar to the class for which an exemption was granted in 2003.

The Librarian understands, and agrees with, the Register regarding the requirement that a decision on a proposed class of works be made based on the record developed in the rulemaking proceeding. In the view of the Librarian, the proposed exemption should be granted because: (1) the record includes statements on the likelihood of access not being available to blind individuals, (2) no one opposed the exemption, and (3) there are broad benefits to society in making works accessible to the visually impaired. The Librarian notes that, in contrast with its actions in both 2003 and 2006, the Copyright Office did not submit any post-hearing questions on this proposed exemption. Such development of the record would have been helpful. The Librarian also notes that the Assistant Secretary for Communications and Information of the Department of Commerce, with whom the Register is required by Section 1201(a)(l)(C) to consult when she makes her recommendation, supports granting the exemption.

Accordingly, the Librarian is designating the class of works relating to literary works distributed in ebook format.

Notwithstanding the above, the Librarian is aware that, in the past two years, the Register and her legal staff have invested a great deal of time in analyzing the myriad of issues that combine to make it difficult for blind and print-disabled persons to obtain access to certain e-books. The Copyright Office has hosted comprehensive meetings with stakeholders, solicited public comment on the application of domestic and international law to accessibility, participated in interagency and intergovernmental meetings in Washington, DC and Geneva, and, with the World Intellectual Property Organization, co-sponsored a major international training program for experts from developing countries. Through this work, the Register has come to believe that more general Congressional attention on the issue of accessibility is merited. I agree with the Register in this determination.

The section 1201 process is a regulatory process that is at best ill-suited to address the larger challenges of access for blind and print-disabled persons. The exemption that the Librarian is approving here offers a solution to specific concerns that were raised in the narrow context of the rulemaking. Moreover, it is a temporary solution, as the 1201 process begins anew every three years.

Outside of section 1201and the issue of technological protection measures, the Register has been examining whether copyright law, and to some extent related disabilities and education laws, adequately serve the blind and print-disabled population in the digital age. In particular, the Register has learned that, even where books are published electronically for the general public, the digital format used or licensed may be employed in a way that is incompatible with Braille readers and other assistive technologies on which blind and print-disabled persons rely. In the long run, this incompatibility may lead to delays, cost challenges and standards issues that may off-set the long-awaited benefits of digital media. Copyright and content issues cannot be divorced from the general goal of ensuring that hardware devices are designed with accessibility in mind. The Librarian fully supports the Register in her examination of these issues and urges Congress to work with the Copyright Office to consider accessibility beyond the contours of this 1201 rulemaking.

For the reasons set forth in the preamble, 37 CFR part 201 is amended as follows:

(b) Classes of copyrighted works. Pursuant to the authority set forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation of the Register of Copyrights, the Librarian has determined that the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A) shall not apply to persons who engage in noninfringing uses of the following five classes of copyrighted works:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos.

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and

(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.

(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

The Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Act) requires that an agency adjust by regulation each maximum civil monetary penalty (CMP), or range of minimum and maximum penalties, within that agency's jurisdiction by October 23, 1996, and adjust those penalty amounts once every four years thereafter to reflect inflation. Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by Section 31001(s)(1) of the Debt Collection Improvement Act of 1996, Public Law 104-134, 110 Stat. 1321-373, April 26, 1996. Congress recognized the important role that civil penalties play in deterring violations of Federal laws and regulations and realized that inflation has diminished the impact of these penalties. In the Inflation Act, Congress found a way to counter the effect that inflation has had on the civil penalties by having the agencies charged with enforcement responsibility administratively adjust the civil penalties.

This final rule is published under the authority of 49 U.S.C. 5123 and 5124, which provide civil and criminal penalties for violations of Federal hazardous material transportation law or a regulation, order, special permit or approval issued under that law. The hazardous material transportation regulations are issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA). 49 CFR 1.53(b). FRA is authorized as the delegate of the Secretary of Transportation to enforce the hazardous material statutes and regulations. 49 CFR 1.49(s).

The Inflation Act requires each Federal agency to periodically adjust CMPs that it administers to consider the effects of inflation. The Inflation Act is set forth in a note to 29 U.S.C. 2461. According to Section 5 of the Inflation Act, the maximum and minimum CMPs must be increased based on a “cost-of-living adjustment” determined by the increase in the Consumer Price Index (CPI) for the month of June of the calendar year preceding the adjustment as compared to the CPI for the month of June in the year in which the last adjustment was made. The Inflation Act also specifies that the amount of the adjustment must be rounded to the nearest multiple of $100 for a penalty between $100 and $1,000; that the amount of the adjustment must be rounded to the nearest multiple of $5,000, for a penalty between $10,000 and $100,000; and that the first CMP adjustment is limited to 10 percent of the original penalty amount. Any increased CMP applies only to violations that occur after the date the increase takes effect. FRA utilizes Bureau of Labor Statistics data to calculate inflation adjusted CMP amounts.

Section 7120 of the Hazardous Materials Safety and Security Reauthorization Act of 2005 (Title VII of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU,” Pub. L. 109-59, 119 Stat. 1905)) amended 49 U.S.C. 5123(a) to reset the maximum and minimum CMPs for a knowing violation of the Federal hazardous material transportation laws, 49 U.S.C. 5101 et seq., or a regulation, order, special permit, or approval issued under that law as follows:

Under the Inflation Act, FRA is now required to adjust the maximum and minimum civil penalties set forth in 49 U.S.C. 5123(a), as amended by SAFETEA-LU. Because these adjustments are the first adjustments to the amounts reset in SAFETEA-LU, an increase in the maximum and minimum civil penalty amounts is limited to 10 percent.

Because this adjustment and the amount thereof are mandated by statute, notice of proposed rulemaking is unnecessary, and there is good cause to make the adjusted ordinary maximum and aggravated maximum civil penalties applicable to any violation occurring on or after September 27, 2010. 5 U.S.C. 553(b), (d).

PHMSA recently issued a final rule to adjust its maximum and minimum civil monetary penalties per the Inflation Act. See 74 FR 68701 (December 29, 2009). FRA's maximum and minimum CMPs that it assesses for violations of the hazardous material transportation laws and regulations have historically mirrored PHMSA's. However, for this round of CMP inflation adjustments, FRA notes that there is one discrepancy between PHMSA's adjusted CMPs and FRA's adjusted CMPs. Because PHMSA's inflation adjustments were performed in calendar year 2009, PHMSA calculated its new maximum and minimum penalties using the CPIs from June 2008 and June 2005. FRA, on the other hand, is calculating the inflation adjustment of its CMPs for hazardous material violations in calendar year 2010, and is therefore using the CPIs from June 2009 and June 2005. The CPI increase between June 2008 and June 2005 was greater than the CPI increase between June 2009 and June 2005. As calculated by PHMSA, its minimum CMP for violations related to training increased ten percent from $450 to $495. 74 FR 68701. In FRA's calculations, as described below, the minimum CMP for violations related to training remains at $450, due to the different years of CPIs used to calculate the inflation increase.

As required, this year FRA reevaluated the ordinary and aggravated maximum hazardous material civil penalties and concluded that they should be increased to $55,000 and $110,000, respectively, as the next calculations show. The June 2009 CPI of 646.121 (the CPI in the year before the year that the present adjustment is being made) divided by the CPI for June 2005 of 582.6 (the year that the then-current maximum penalty of $32,500 was reset by SAFETEA-LU) equals an inflation factor of 1.10903; $50,000 times 1.10903 equals $55,451.50. The raw inflation adjustment amount of $5,452 is rounded to the nearest $5,000, which is $5,000. Because this is the first adjustment for this penalty, any increase is capped at 10 percent of the current penalty amount; $5,000 is 10 percent of $50,000 and does not exceed the 10 percent limit. Therefore, the inflation-adjusted ordinary maximum CMP is $50,000 plus $5,000, or $55,000, and is applicable to all of the hazardous material laws and regulations enforced by FRA.

Applying the same calculations to the $100,000 aggravated maximum penalty for certain, more serious violations, $100,000 times 1.10903 equals $110,903. The raw inflation adjustment amount of $10,903 is rounded to the nearest $5,000, which is $10,000. Because this is the first adjustment for this penalty, any increase is capped at 10 percent of the current penalty amount; $10,000 is 10 percent of $100,000 and does not exceed the 10 percent limit. Therefore, the inflation-adjusted aggravated maximum CMP for certain hazardous material violations is $110,000. This maximum may apply to CMPs for a violation of the hazardous material laws or regulations that results in death, serious illness, or severe injury to a person or substantial destruction of property. The new ordinary and aggravated maximum CMPs will apply to violations that occur on or after September 27, 2010.

FRA also reevaluated the minimum CMP for a training violation and determined that it should remain at $450, as the following calculations show: $450 times the inflation factor of 1.10903 equals $499. The raw inflation adjustment amount of $49 is rounded to the nearest $100, which is $0. The inflation-adjusted minimum CMP for training violations therefore does not change, and remains at $450.

Applying the adjustment calculation, FRA has determined that the minimum CMP for all other hazardous material violations should remain at $250, as the following calculations show: $250 times the inflation factor of 1.10903 equals $277. The raw inflation adjustment amount of $27 is rounded to the nearest $100, which is $0. Therefore, the minimum CMP remains at $250.

FRA is proceeding to a final rule without providing a notice of proposed rulemaking or an opportunity for public comment. Public comment is unnecessary because, in making these technical amendments, FRA is not exercising discretion in a way that could be informed by public comment. As such, notice and comment procedures are “impracticable, unnecessary, or contrary to the public interest” within the meaning of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B). Likewise, the adjustments required by the Inflation Act are ministerial acts over which FRA has no discretion, making public comment unnecessary. FRA is issuing these amendments as a final rule applicable to all future hazardous material civil penalty cases under its authority to cite for violations that occur on or after the effective date of this final rule.

This rule has been evaluated in accordance with existing policies and procedures. It is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget (OMB). This rule is not significant under DOT Regulatory Policies and Procedures. 44 FR 11034. The cost of complying with existing substantive regulations is not being increased. The adjustment for inflation of the maximum and minimum CMP is a limited ministerial act over which the agency has no discretion. The economic impact of the final rule is minimal to the extent that preparation of a regulatory evaluation is not warranted.

FRA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. This rule applies to shippers and carriers of hazardous material and persons who manufacture, mark, certify, or sell packagings, containers and packaging components as qualified for use in transporting hazardous materials in commerce, some of whom are small entities. However, there is no economic impact on any person who complies with Federal hazardous material transportation law and the regulations, orders, special permits and approvals issued under that law.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”), and the President's May 20, 2009 memorandum on “Preemption” (74 FR 24693, May 22, 2009). As amended in 2005, 49 U.S.C. 5125(h) provided that the preemption provisions in Federal hazardous material transportation law do “not apply to any * * * penalty * * * utilized by a State, political subdivision of a State, or Indian tribe to enforce a requirement applicable to the transportation of hazardous material.” Accordingly, this final rule does not have any preemptive effect on the amount or nature of penalties imposed by a State, local, or Indian Tribal government for violations of their requirements which are consistent with requirements in Federal hazardous material transportation law and the regulations prescribed under that law. Preparation of a federalism assessment is not warranted.

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards. This rulemaking is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.

There are no new information collection requirements in this final rule.

The final rule issued today will not result in the expenditure, in the aggregate, of $141,300,000 or more in any one year by State, local, or Indian Tribal governments, or the private sector, and thus preparation of a statement is not required.

There are no significant environmental impacts associated with this final rule.

According to definitions set forth in Executive Order 13211, there will be no significant energy action as a result of the issuance of this final rule.

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70, pages 19477-78) or online at http://www.dot.gov/privacy.html.

On May 6, 1991, we received a petition (1991 petition) from Alison Stattersfield, of the International Council for Bird Preservation (ICBP), to list 53 foreign birds under the Act, including the black-breasted puffleg (also referred to in this rule as “puffleg”) that is the subject of this final rule. On December 16, 1991, we made a positive 90-day finding and announced the initiation of a status review of the species included in the 1991 petition (56 FR 65207). On March 28, 1994 (59 FR 14496), we published a 12-month finding on the 1991 petition. In that document, we announced our finding that listing the remaining 38 species from the 1991 petition, including the black-breasted puffleg, was warranted but precluded because of other listing activity.

Per the Service's listing priority guidelines (September 21, 1983; 48 FR 43098), we identified the listing priority numbers (LPNs) (ranging from 1 to 12) for all outstanding foreign species in our 2007 Annual Notice of Review (ANOR) (72 FR 20184), published on April 23, 2007. In that notice, the black-breasted puffleg was designated with a LPN 2 and we determined that listing continued to be warranted but precluded. It should be noted that “Table 1 - Candidate Review,” in our 2007 ANOR, erroneously noted the black-breasted puffleg as having an LPN of 3. However, the correct LPN in 2007 was 2, as discussed in the body of the notice (72 FR 20184, p. 20197).

On January 12, 1995 (60 FR 2899), we reiterated the warranted-but-precluded status of the remaining species from the 1991 petition, with the publication of the final rule to list the 30 African birds. We made subsequent warranted-but-precluded findings for all outstanding foreign species from the 1991 petition, including the black-breasted puffleg, as published in our annual notices of review (ANOR) on May 21, 2004 (69 FR 29354), and April 23, 2007 (72 FR 20184).

On January 23, 2008, the United States District Court ordered the Service to propose listing rules for five foreign bird species, actions which had been previously determined to be warranted but precluded: The Andean flamingo (Phoenicoparrus andinus), black-breasted puffleg (Eriocnemis nigrivestis), Chilean woodstar (Eulidia yarrellii), medium tree finch (Camarhynchus pauper), and the St. Lucia forest thrush (Cichlherminia lherminieri sanctaeluciae). The court ordered the Service to issue proposed listing rules for these species by the end of 2008.

On July 29, 2008 (73 FR 44062), we published in the Federal Register a notice announcing our annual petition findings for foreign species (2008 ANOR). In that notice, we announced that listing was warranted for 30 foreign bird species, including the black-breasted puffleg, which is the subject of this final rule.

In the proposed rule published on December 8, 2008 (73 FR 74427), we requested that all interested parties submit written comments on the proposal by February 6, 2009. We received six comments on the proposed rule. We received one comment from the Center for Biological Diversity supporting the proposed listing, three comments were from peer reviewers, and two other comments were received from the public that contained no substantive information. We did not receive any requests for a public hearing.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals with scientific expertise that included familiarity with this species and its habitat, biological needs, and threats. We received responses from all three of the peer reviewers.

We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the proposed listing of this species. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final listing determination. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

(1) Comment: One commenter indicated that climate change, mining concessions, and competition from an Ecuadorian hummingbird, the gorgeted sunangel (Heliangelus strophianus), are threats that were not adequately addressed in the proposed rule.

Our Response: We agree that these issues were not adequately addressed and therefore, have addressed these potential threats in the analysis below. Climate change and interspecific competition are addressed in the Factor E analysis. Mining impacts are addressed in the Factor A analysis under Other Anthropogenic Factors.

(2) Comment: One peer reviewer indicated that while the science in our proposed rule is generally correct, more recent research had been conducted and pointed out recent research papers. The peer reviewer also provided more recent information on where the species is currently found.

Our Response: We addressed this comment in the analysis below by updating information such as the species' physical description, habitat specifics, current sightings and distribution, and food preferences. We incorporated this new research (e.g., a small number of references pertaining to life history) where appropriate.

(3) Comment: Two peer reviewers indicated that the population estimate used in the proposed rule is low; they suggested that the population estimate is more likely between 250 and 999 individuals.

Our Response: We agree and have addressed this in the Population Estimate section and analysis below.

(4) Comment: Commenters suggested that the population trends estimate used in the proposed rule is not based on current data and that the estimate should be correlated with habitat loss based on the species' current known locations.

Our Response: We have updated the trends estimate based on more recently available data. Therefore, the final rule incorporates the most current and best available information.

(5) Comment: Peer reviewers suggested that we update the information on the species' food base.

Our Response: We agree and have updated this information in the Species Information, Habitat and Life History section below.

Several changes were made to update or correct the taxonomy, biology, and life history of the species, and current areas where the species has been sighted. The taxonomy section has been corrected to indicate the correct taxonomic history for this species. Bourcier & Mulsant (1852) first described black-breasted puffleg as Trochilus nigrivestis rather than Eriocnemis nigrivestis, as erroneously indicated in the proposed rule. Additionally, one peer reviewer clarified that the species' principal habitat is not necessarily Polyleps forest. During 2007 field work mentioned in the 2008 Species Action Plan for the black-breasted puffleg (Jahn and Santander 2008), researchers only found the species in habitat other than Polylepis forest; therefore, we have updated this information and incorporated it into the analyses. The species' current known range has been updated to include recent sightings.

Based on new information, we also revised the threats analysis under factor A with respect to the construction of a pipeline being constructed from the Amazon basin to Esmeraldas that was thought to be in black-breasted puffleg habitat. We also updated the Factor E analysis to include synergistic effects of El Niño and deforestation.

The black-breasted puffleg is endemic to Ecuador and is a member of the hummingbird family (Trochilidae). It is approximately 3.25 inches (in) (8.5 centimeters (cm)) long (Fjeldsa and Krabbe 1990, p. 272; Ridgely and Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280). The species is locally known as “Calzadito pechinegro” or “Zamarrito pichinegro” (United Nations Monitoring ProgrammeWorld Conservation Monitoring Centre (UNEP-WCMC) 2008b, p. 1). The Black-breasted puffleg has distinctive white leg plumage (ergo, the name “puffleg”), but is distinctive among other species of pufflegs due to a small, shiny blue “gorget” (coloration below the throat area). Males have entirely black upperparts, mostly blackish green underparts, and dark steel-blue forked tails. Females have shiny, green upper plumage, turning blue toward the tail, with golden-green underparts (BirdLife International (BLI) 2007, p. 1). As with other puffleg hummingbirds, it has a straight black bill.

This species was first taxonomically described by Bourcier and Mulsant in 1852 and placed in Trochilidae as Trochilus nigrivestis (BLI 2009, p. 1). According to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) species database, the black-breasted puffleg is also known by the synonym, Trichilus nigrivestis (UNEP-WCMC 2008b). Both CITES and BirdLife International recognize the species as Eriocnemis nigrivestis (BLI 2007, p. 1; UNEP-WCMC. 2008b, p. 1). The Service follows the Integrated Taxonomic Information System (ITIS 2008, p. 1) which also recognizes the species as Eriocnemis nigrivestis; therefore, we accept the species as Eriocnemis nigrivestis.

Black-breasted pufflegs prefer humid high-Andean montane forest such as elfin forests (generally forests at high elevations which contain stunted trees) and forest borders (Fjeldsa and Krabbe 1990, p. 272; Jahn 2008, p. 29; Ridgely and Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280). This habitat is described as wet cloud forest: Grassy ridges surrounded by stunted montane forest with a dense understory (de Hoyo et al. 1999, p. 639). Altitudinal migrants, the species is found between 6,791 and 11,483 feet (ft) (2,070 - 4,570 meters (m)) (del Hoyo et al. 1999, p. 639; Fjeldsa and Krabbe 1990, p. 272; Lyons and Santander, 2006, p. 1; Ridgely and Greenfield 2001a, p. 374). During the rainy season (November-February) the species is found mainly at higher altitudes above 10,000 ft (3,100 m). It is found at lower elevations 9,006-10,000 ft (2,745-3,100 m) primarily between April and September (Fjeldsa and Krabbe 1990, p. 272; del Hoyo et al. 1999, p. 639). The species' preferred habitat is mixed forest and forest edges dominated by Ericacea plants at high elevations (Guevara, pers. comm., Jahn 2008, p. 34, Santander et al. 2004, pp. 8-9).

Most pufflegs, including the black-breasted puffleg, are considered to be generalist feeders (pollinators) (Ross and Allmon 1990, pp. 356-357). The black-breasted puffleg altitudinal migration coincides with the flowering of certain plants during the rainy season. Palicourea huigrensis and Macleania rupestris (commonly referred to as chamburo, chaquilulo, choglon, chupa lulun, colca macho, gualicon, hualicon llucho, joyapa, quereme, sagalita, and yurac joyapa (New York Botanical Garden 2009)) are commonly distributed throughout the species' habitat. The species has been frequently observed using Palicourea huigrensis (no common name (NCN)) as its primary nectar source (Bleiweiss and Olalla 1983, pp. 657-658; del Hoyo et al. 1999, pp. 530-531; Fjeldsa and Krabbe 1990, p. 272). The species also feeds on flower nectar of other shrubs and vines, including: Thibaudia floribunda (NCN), Disterigma sp. (NCN), Rubus sp. (NCN), Tropaeolum sp. (NCN), and Psychotria uliginosa (NCN) (Bleiweiss and Olalla 1983, pp. 657-658; Collar et al. 1992, pp. 516-517; del Hoyo et al. 1999, pp. 530-531; Phillips 1998, p. 21). The species has been observed feeding from at least 29 different plant species, including 8 species of Ericaceae (Jahn and Santander 2008, p. 21). Black-breasted pufflegs feed low in the shrubbery along forest margins, often while perched (Fjeldsa and Krabbe 1990, p. 272; Ridgely and Greenfield 2001b, p. 280).

As recently as 1990, researchers were unaware of the puffleg's breeding habits (Fjeldsa and Krabbe 1990, p. 272), and there continues to be little information (BLI 2007, p. 1). Del Hoyo et al. (1999, p. 639) reported that the species breeds from October to March, producing a clutch size of two, and that the female incubates the eggs. Based on the species' seasonal migration (del Hoyo et al. 1999, p. 639; Fjeldsa and Krabbe 1990, p. 272), breeding presumably occurs at altitudes above 10,000 ft (3,100 m).

Historically, the black-breasted puffleg inhabited the elfin forests along the northern ridge-crests of both Volcan Pichincha and Volcan Atacazo in northwest Ecuador (BLI 2007, p. 2; Fjeldsa and Krabbe 1990, p. 272; Krabbe et al. 1994, p. 9). Habitat loss has been the primary cause of black-breasted puffleg decline (Philips 1998, p. 21, Santander 2004, pp. 10-17) (see Factor A). The number of specimens in museum collections taken in the 19th century up until 1950 is over 100, suggesting the species was once more common (Collar et al. 1992, p. 516). The species appears to have been extirpated from Volcan Atacazo, but this has not been verified (World Land Trust 2007, p. 3). On Volcan Atacazo, its presence has not been confirmed since 1902. There was a possible sighting of a female at treeline (11,483 ft; 3,500 m) in 1983 but it has never been confirmed (BLI 2007, 2; Collar et al. 1992, p. 174; del Hoyo et al. 1999, p. 639). Confirmation of the species on Volcan Atacazo has not been possible because there is a single landowner and access to the area has not been allowed to confirm existence of the species (Jahn 2008, pers. comm.). Following more than 13 years without any observation of the species, the black-breasted puffleg was rediscovered on Volcan Pichincha in 1993 (Jahn 2008, p. 33; Phillips 1998, p. 21).

Currently, the black-breasted puffleg is known to occur in definitely two, but possibly four, reserves all located north of Quito, Ecuador. The first area is the Yanacocha Reserve on the north side of Volcan Pichincha, approximately 12 miles (mi) (20 kilometers (km)) north of Quito. The second area where it is known to occur is in the Cotacachi-Cayapas Ecological Reserve (below Cayapachupa in the Cordillera (mountain range) de Toisan), which is 87 mi (140 km) north of Quito (Jahn 2008, pers. comm.). Currently the Yanacocha Reserve encompasses approximately 3,300 acres (ac) (1,300 hectares (ha) (WorldLand Trust 2009). A third area where it may occur is in a private reserve, Las Gralarias. This reserve is located in the Pichincha Province, two hours northwest of Quito, where this species was sighted in 2005 and 2006 (Lyons and Santander, 2006, pp. 1-2; Schwartz 2006, as cited in Hull 2009, p. 1). Las Gralarias is a 400ac (162ha) reserve, at an elevation of 5,873 7,776 ft (1,790 2,370 m), the lowest elevation at which a black breasted puffleg has been seen. Another sighting of this species occurred in 2007 in a fourth location, at Hacienda Verdecocha, a private reserve adjacent to the Yanacocha Reserve. Hacienda Verdecocha is approximately 2,396 ac (970 ha) and likely contains black-breasted puffleg habitat (Jahn 2008, p. 33; Jahn & Santander 2008, p. 10). It is unclear whether the birds at the Yanacocha Reserve and the Hacienda Verdecocha Reserve are the same population. The species' current existence at one other potential location (Volcan Atacazo, approximately 15 mi (25 km) southwest of Quito) has not been verified for over 100 years.

The species occurs in temperate elfin forests, generally at altitudes between 6,791 and 11,483 ft (2,070 - 4,570 m) (Fjeldsa and Krabbe 1990, p. 272; Jahn & Santander 2008, p. 10; Ridgely and Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280). Volcan Pichincha, where the species is known to occur, peaks at 15,699 ft (4,785 m) (Phillips 1998, p. 21). The current extent of the species' range is believed to be between 27 mi2 (70 km2) and 54 mi2 (139 km2) (BLI 2009; Jahn & Santander 2008, p. 8). This considers the suitable habitat in two locations where the species is believed to occur based on the best available information (BLI 2009, p. 1). However, its range may be somewhat larger due to recent sightings in other protected areas, and also because it may also exist in other suitable locations where it has not been sighted (Guevara 2009 pers. comm., Jahn & Santander 2008, pp. 21-23).

The black-breasted puffleg is believed to be restricted to two to three subpopulations (Hacienda Verdecocha is adjacent to the Yanacocha Reserve so that is likely one combined population). Its total population size ranges from 200 to 270 individuals, with a declining trend (BLI 2009, p. 1; Jahn 2008, p. 35). Recent research suggested that a more accurate estimate may be 250-999 individuals (Jahn and Santander 2008, p. 19); however, there are no supporting data for this estimate at this time. One additional subpopulation may exist on Volcan Atacazo (Jahn and Santander 2008, p. 35), although it has not been documented. BirdLife International, a global organization that consults with and assimilates information from species experts, estimated that the species has experienced a population decline of between 50 and 79 percent in the past 10 years, with more than 20 percent of this loss having occurred within the past 5 years. (BLI 2007, p. 4). This rate of decline is predicted to continue (BLI 2009, p. 1).

The black-breasted puffleg is protected by various Federal, local, and international means. It is identified as a critically endangered species under Ecuadorian law (Rodriguez 2002, p. 91). This species is also classified as “Critically Endangered” in the 2009 International Union for Conservation of Nature (IUCN) Red List. It has an extremely small range, and the population is restricted to possibly two or three locations (BLI 2009, p. 1, Jahn and Santander 2008, p. 10). Critically endangered is IUCN's most severe category of extinction assessment, which equates to extremely high risk of extinction in the wild. IUCN criteria include rate of decline, population size, area of geographic distribution, and degree of population and distribution fragmentation. BirdLife International (BLI), which is cited throughout this document, is the authority for birds on the IUCN Red List. The black-breasted puffleg was listed on Appendix II of CITES on October 22, 1998. Additionally, in 2005, the mayor of Quito, Ecuador, designated the puffleg as its emblem. Lastly, several private reserves provide protection to this species. Yanacocha Reserve, managed by Fundacion Jocotoco, a private nongovernmental organization in Ecuador, was established around 2001 specifically to protect this species. The Yanacocha Reserve is managed for ecotourism, environmental education, and conservation initiatives.

Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The five-factor analysis under the Act requires an analysis of current and future potential impacts to the species. Listing actions may be warranted based on any of the above threat factors, singly or in combination. We evaluated the best available scientific and commercial information under the five listing factors to determine whether it met the definition of endangered or threatened. Each of these factors is discussed below.

The black-breasted puffleg occurs on volcanic mountain ranges restricted to elfin forests along the northern ridge-crests within 87 miles (140 km) northwest of Quito, Ecuador (BLI 2007, p. 2; Fjeldsa and Krabbe 1990, p. 272; Krabbe et al. 1994, p. 9). The species has not been confirmed on Volcan Atacazo since 1902 (BLI 2007, 2; Collar et al. 1992, p. 174), although it may have been sighted there in 1983 (Jahn 2008, p. 33). The species occurs at altitudes between 6,791 and 11,483 ft (2,070 - 4,570 m) (Fjeldsa and Krabbe 1990, p. 272; Jahn & Santander 2008, p. 10, Ridgely and Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280, Santander 2008, p. 33). Within the current range of the black-breasted puffleg, approximately 93 percent of the habitat has been destroyed, and the current extent of the species' range is approximately 54 mi2 (139 km2) ((BLI 2009, p. 1; Hirschfeld 2007, pp. 178-179; Jahn & Santander 2008, p. 8). Threats include human population pressures such as clearing for agricultural expansion and fires caused by slash-and-burn agricultural practices (Jahn and Santander 2008, p. 24).

Habitat loss due to deforestation is the primary cause of black-breasted puffleg declines (BLI 2009, p. 1; Philips 1998, p. 21). Current threats consist primarily of deforestation due to use by local people for firewood, charcoal, and agriculture (BLI 2009, p 2). Deforestation activities also include clearance of forested habitat for commercial use or grazing (Hirschfeld 2007, pp. 178-179). Habitat destruction and alteration also occur as a result of intentional fires to convert forested areas to pasture or cropland (Goodland 2002, pp. 16-17; Hirschfeld 2007, pp. 178-179; Phillips 1998, pp. 20-21).

Deforestation rates and patterns: The conversion of habitat significantly increased between 1996 and 2001 compared with the period between 1982 and 1996. The ridge-crests within the range of the black-breasted puffleg are relatively level. Local settlers have cleared the majority of forested habitat within the species' range for timber products (charcoal production) or converted it to potato cultivation and grazing (BLI 2009, p. 2, Bleiweiss and Olalla 1983, p. 656; del Hoyo 1999, pp. 530-531). Some ridges are almost completely devoid of natural vegetation, and even if black-breasted pufflegs still occur in these areas, their numbers are most likely quite low (BLI 2009, p. 2). Within the species' range, aerial photographs of the northern and western slopes of Volcan Pichincha between 1982 and 2001 showed a continued loss of forested area, while agricultural area increased by 24 percent (Santander 2004, p. 10).

The areas outside of Reserves (see Refugia) but still within the range of the black-breasted puffleg continue to be affected by habitat loss and fragmentation. An analysis of deforestation rates and patterns using satellite imagery in the western Andean slopes of Colombia and Ecuador was conducted. Researchers found that from 1973 through 1996, a total of 82,924 ha (204,909 ac) of tropical forests within the area studied were converted to other uses (Viña et al. 2004, pp. 123-124). This corresponds to a nearly one-third total loss of primary forest habitat or a nearly 2 percent mean annual rate within the study area. More recent reports identified similar forest habitat losses in Ecuador. Between the years 1990 and 2005, Ecuador lost a total of 7.31 million ac (2.96 million ha) of primary forest, which represents a 16.7 percent deforestation rate and a total loss of 21.5 percent of forested habitat since 1990 (Butler 2006, pp. 1-3; FAO 2003, p. 1).

Other Anthropogenic Factors: Habitat destruction and pollution due to oil development and distribution (Goodland 2002, pp. 16-17; Hirschfeld 2007, pp. 178-179) and increased access and habitat destruction resulting from road development (Hirschfeld 2007, pp. 178-179) have been indicated as other threats to this species' habitat. In the proposed rule, we discussed that, in 2001, the Ecuadorian government agreed to construct a pipeline to transport heavy oil from the Amazon basin to Esmeraldas on the Pacific Coast (Goodland 2002, pp. 16-17). The environmental impact study (EIS) conducted in 2001 revealed that the proposed route went through black-breasted puffleg habitat (Goodland 2002, pp. 16-17). However, the EIS was done almost 10 years ago. More recent satellite mapping shows that much of the area that was previously puffleg habitat is already destroyed, with little habitat remaining above 9,186 ft (2,800 m). The puffleg is found at lower elevations 9,006-10,000 ft (2,745-3,100 m) primarily between April and September. However, the species is found mainly at higher altitudes 10,000 ft (3,100 m) above the altitude at which the pipeline was constructed. Although this pipeline was constructed, this occurred in the past and is not a current or future threat.

The pipeline may pass through suitable puffleg habitat on the northwestern slope of Volcan Pichincha (Jahn and Santander 2008, p. 17). However this pipeline, in terms of its construction, is not a significant threat impacting the black-breasted puffleg because the pipeline construction already occurred. There is no indication that any other pipelines will be constructed in the black-breasted puffleg's range. There is the potential for oil spill leaks, but the threat of this is minimal. Because the species is found mainly at higher altitudes in reserves above the altitude of the pipeline, the puffleg habitat that potential oil spill leaks would likely affect is small. Therefore, we find that neither the pipeline, nor habitat destruction and pollution due to oil development are current or future threats to this species.

Mining was suggested to be a threat to this species by a peer reviewer; however, mining has not been found to be a threat to this species (also see Factor D). Mining has been controversial in Ecuador and there has been pressure from foreign mining companies to allow mining for resources such as copper and diamonds. In March 2009, shortly after Ecuador's new mining law was enacted, the Confederation of Indigenous Nationalities of Ecuador (CONAIE) filed a lawsuit stating that the country's new mining law is unconstitutional because it failed to consult with indigenous organizations whose territories will be affected by a proposed activity (CONAIE 2009). Although the mining law is being disputed, mining may be allowed for resources in Junin and Zamora, Ecuador, to the west and southwest of Quito (Ecuador Mining News 2009, Ecometals Ltd 2009). However, mining is not allowed in the two to three reserves where the black-breasted puffleg is currently believed to exist. CONAIE, is working diligently to ensure that mining does not occur (CONAIE 2009, Earthworks 2009). Mining does not appear to be a major factor impacting the black-breasted puffleg; therefore, we have determined that mining is not a threat to the species.

We evaluated roads as a potential threat to the species. The existing subpopulations of black-breasted puffleg appear to be concentrated in protected areas (see Refugia below), which are not currently threatened by roads. Roads can destroy habitat, facilitate invasion by exotic species, expose birds to traffic hazards, and increase human access into habitat, facilitating further exploitation and habitat destruction (Hunter 1996, pp. 158-159). However, in this case, roads do not appear to be a major factor impacting the black-breasted puffleg; therefore, we have determined that roads are not a threat to the species.

Refugia: Although reserves exist to protect species, reserves can also bring with them unintended consequences. Reserves may have repercussions, such as the potential to initiate additional road development through species' habitat, and increase pressures on species' habitat from tourism (such as the increase in pollution, trash, and other waste). Reserves may also increase pressure to surrounding habitat by locals who supplement their income through ecotourism, but who also may use the land detrimentally as described under factor A (Stem et al. 2003, pp. 322-347; Pitts 2010, pp. 86, 197). Reserves, with their increased tourism, can also cause an increase in invasive species (FAO 2010, p. 1).

Several reserves exist with a primary intention of protecting this species. In the proposed rule, we found that Yanacocha Reserve was negatively affected by human population pressures, including clearing for agricultural expansion and fires caused by slash-and-burn agricultural practices (Philips 1998, p. 21). Hunting, extraction of nontimber resources (such as orchids), and tourism were considered to have a minor impact within the Reserve (BLI 2007, p. 12). However, the best available information now indicates that if these practices still occur, they (1) occur outside of the reserves and (2) they do not occur to the degree that they threaten the continued or future existence of the species.

The black-breasted puffleg prefers humid high-Andean montane forests at altitudes between 6,791 and 11,483 ft (2,070 - 4,570 m) (Jahn 2008, p. 10; Ridgely and Greenfield 2001a, p. 373; Ridgely and Greenfield 2001b, p. 280). The current populations are small and limited to a narrow elevational band in the volcanic mountains generally to the north of Quito, existing in fragmented, disjunct, and isolated habitat. Although the species' range is partly in at least two protected areas, the habitat around the reserves continues to be altered and destroyed by human activities. Further, some of the protected areas are private reserves which are not officially recognized by the Ministry of Environment (Jahn and Santander 2008, p. 9), and their long term protection is not guaranteed. Efforts are under way to restore and protect more suitable habitat for the species (Jahn 2008, p. 28). Outside of its refugia, the areas around the reserves is somewhat negatively affected by tourism, local human pressures, roads, and invasive species associated with the reserves. Nevertheless, we find that unintended consequences of refugia are not a threat to the species. However, habitat destruction, alteration, and conversion are key factors in the species' historical decline and continue to be factors negatively affecting the status of the species outside of the Reserves where this species is found. Therefore, based on the best available information, we find that the present destruction, modification, and curtailment of habitat is a significant threat to the black-breasted puffleg.

In 1987, the black-breasted puffleg was listed on Appendix II of CITES. CITES is an international agreement between governments to ensure that the international trade of CITES-listed plant and animal species does not threaten species' survival in the wild. There are currently 175 CITES Parties (member countries or signatories to the Convention). Under this treaty, CITES Parties (signatories to the Convention) regulate the import, export, and re-export of CITES-protected plants and animal species (also see Factor D). Trade must be authorized through a system of permits and certificates that are provided by the designated CITES Scientific and Management Authorities of each CITES Party (CITES 2007). In the United States, the U.S. Fish and Wildlife Service serves as the Scientific and Management Authorities.

CITES provides varying degrees of protection to more than 32,000 species of animals and plants that are traded as whole specimens, parts, or products. Under CITES, a species is listed at one of three levels of protection (i.e., regulation of international trade), which have different permit requirements (CITES 2007). Appendix II includes species requiring regulation of international trade in order to ensure that trade of the species is compatible with the species' survival. International trade in specimens of Appendix-II species is authorized when the permitting authority has determined that the export will not be detrimental to the survival of the species in the wild and that the specimens to be exported were legally acquired (UNEP-WCMC 2008a, p. 1).

At times a species may be listed as endangered under the U.S. Endangered Species Act, and concurrently listed under Appendix II of CITES, rather than the more restrictive Appendix I, which does not allow commercial trade of wild specimens. Although CITES Appendix II allows for commercial trade, in order for specimens of this species to be traded internationally (i.e., exported from its country of origin), a determination has to be made that (1) The export will not be detrimental to the survival of the species in the wild and (2) the specimen was legally acquired. In this case, it is unlikely that a determination could be made that the export would not be detrimental to the survival of the species in the wild.

Between the time the puffleg was listed in CITES in 1987 and 2010, there were 5 CITES-permitted international shipments containing 17 specimens of the black-breasted puffleg. These shipments occurred between 1996 and 2002 (UNEP-WCMC 2008c, p. 1). According to the World Conservation Monitoring Centre trade data (UNEP-WCMC 2008c, p. 1), all of the CITES transactions involved the transport of dead specimens. Nine were traded for scientific purposes, six for commercial purposes, and two were for personal use. Trade involving the United States included three specimens that were imported into the United States and seven that were reexported from the United States.

Even though this species is listed under Appendix II of CITES, and commercial trade is allowed, we believe that international trade controlled via valid CITES permits is not a threat to the species. CITES adequately regulates international trade because the export of Appendix II species requires the determination that the export will not be detrimental to the survival of the species in the wild. Therefore, we find that international trade does not pose a threat to the species.

We are unaware of any other information currently available that addresses the occurrence of overutilization for commercial, recreation, scientific, or education purposes that may be affecting the black-breasted puffleg. There is no known historic or cultural use of this species by local populations. As such, we do not consider overutilization to be a threat to the species.

We are not aware of any occurrence of disease or predation that may be causing a decline of the black-breasted puffleg. As a result, we do not consider disease or predation to be a threat to the black-breasted puffleg.

The black-breasted puffleg is identified as a critically endangered species under Ecuadorian law and Decree 3,516 of 2003-Unified Text of the Secondary Legislation of the Ministry of Environment (Ecolex 2003b, p. 36). Decree 3,516 summarizes the law governing environmental policy in Ecuador and provides that the country's biodiversity be protected and used primarily in a sustainable manner. Appendix 1 of Decree No. 3,516 lists the Ecuadorian fauna and flora that are considered endangered. Species are categorized as critically endangered (En peligro critico), endangered (En peligro), or vulnerable (Vulnerable) (Ecolex 2003b, p. 17). Resolution No. 105 of January 28, 2000, and Agreement No. 143 of January 23, 2003, regulate and prohibit commercial and sport hunting of all wild bird species, except those specifically identified by the Ministry of the Environment or otherwise permitted (Ecolex 2000, p. 1; Ecolex 2003a, p. 1). The Ministry of the Environment does not permit commercial or sport hunting of the black-breasted puffleg because of its status as a critically endangered species (Ecolex 2003b, p. 17). However, we do not consider hunting (Factor B) to be a current threat to the black-breasted puffleg, so this law does not reduce any threats to the species.

Ecuador has numerous laws and regulations pertaining to forests and forestry management. These include: The Forestry Act (comprised of Law No. 74 of 1981 Forest Act and conservation of natural areas and wildlife (Faolex 1981, p. 1-54), and Law No. 17 of 2004 Consolidation of the Forest Act and conservation of natural areas and wildlife (Faolex 2004, pp. 1-29)); a Forestry Action Plan (1991-1995); the Ecuadorian Strategy for Forest Sustainable Development of 2000 (Estrategia para el Desarrollo Forestal Sostenible); and, Decree 346, which recognizes that natural forests are highly vulnerable (ITTO 2006, p. 225). However, the International Tropical Timber Organization considered ecosystem management and conservation in Ecuador, including effective implementation of mechanisms that would protect the black-breasted puffleg and its habitat, to be lacking (ITTO 2006, p. 229).

The governmental institutions responsible for oversight appear to be under-resourced, and there is a lack of law enforcement on the ground. Despite the creation of a national forest plan, there appears to be a lack of capacity to implement this plan due to insufficient political support. There appears to be unclear or unrealistic forestry standards, inconsistencies in application of regulations, discrepancies between actual harvesting practices and forestry regulations, the lack of management plans for protected areas, and high bureaucratic costs. All these inadequacies have failed to prevent ongoing habitat destruction, such as widespread unauthorized logging (ITTO 2006, p. 229), forest clearing for conversion to agriculture or grazing (Bleiweiss and Olalla 1983, p. 656; del Hoyo 1999, pp. 530-531; Hirschfeld 2007, pp. 178-179), habitat destruction and alteration as a result of fire caused by slash-and-burn agriculture (Goodland 2002, pp. 16-17; Hirschfeld 2007, pp. 178-179; Phillips 1998, pp. 20-21); and increased access and habitat destruction resulting from road development (Hirschfeld 2007, pp. 178-179). In addition, most of Ecuador's forests are privately owned or owned by communities (ITTO 2006, p. 224). The management and administration of Ecuador's forest resources and forest harvest practices is insufficient and unable to protect against unauthorized forest harvesting, degradation, and conversion (ITTO 2006, p. 229). Thus, Ecuadorian forestry regulations have not mitigated the threat of habitat destruction (Factor A).

The Ecuadorian government recognizes 31 different legal categories of protected lands (e.g., national parks, biological reserves, geo-botanical reserves, bird reserves, wildlife reserves, etc.). As of 2006, the amount of protected land (both forested and non-forested) in Ecuador totaled approximately 11.5 million ac (4.67 million ha) (ITTO 2006, p. 228). However, only 38 percent of these lands have appropriate conservation measures in place to be considered protected areas according to international standards. The standards define these areas as areas that are managed for scientific study or wilderness protection, for ecosystem protection and recreation, for conservation of specific natural features, or for conservation through management intervention (IUCN 1994, pp. 17-20). Moreover, only 11 percent have management plans, and less than 1 percent (13,000 ha (32,125 ac)) have implemented those management plans (ITTO 2006, p. 228).

The black-breasted puffleg occurs in only a few reserves (BLI 2009, p. 2; Jahn and Santander 2008, p. 33; Santander, et al. 2004, p. 1; World Land Trust 2007, p. 1) in the Pichincha mountain range. Some of the area is being managed for ecotourism, environmental education, and conservation initiatives, including restoration (Fundacion Jocotoco 2006, p. 1). However, outside of the Reserves, there are ongoing human population pressures from expanding agriculture, along with slash-and-burn agricultural practices (BLI 2009, pp. 1-2) (Factor A). Thus, while black-breasted puffleg habitat is being protected in several relatively small government and privately owned reserves, regulatory mechanisms associated with protected land do not mitigate the impact of threats to the species' habitat from habitat loss and destruction.

The black-breasted puffleg is listed on Appendix II of CITES. CITES, an international treaty among 175 nations, including Ecuador and the United States, entered into force in 1975. In the United States, CITES is implemented through the U.S. Endangered Species Act (ESA). The Secretary of the Interior has delegated the Department's responsibility for CITES to the Director of the U.S. Fish and Wildlife Service (USFWS) and established the CITES Scientific and Management Authorities to implement the treaty. Under this treaty, member countries work together to ensure that international trade in animal and plant species is not detrimental to the survival of wild populations by regulating the import, export, and re-export of CITES-listed animal and plant species (USFWS 2008, p. 1). As discussed under Factor B, we do not consider international trade to be a threat impacting the black-breasted puffleg. Therefore, protection under this Treaty is an adequate regulatory mechanism.

Ecuador has adopted numerous laws and regulatory mechanisms to administer and manage its wildlife, such as the black-breasted puffleg and its habitat. Under Ecuadorian law, the black-breasted puffleg is listed as endangered and ranges partly within two to three protected areas. As discussed under Factor A, habitat destruction, degradation, and fragmentation continue throughout the existing range of the black-breasted puffleg. With respect to CITES, we found that CITES is an adequate regulatory mechanism with respect to international trade or overutilization (Factor B), and is not a threat to this species. However, on-the-ground enforcement of Ecuador's laws and oversight of the local jurisdictions implementing and regulating activities destructive to the species' habitat are insufficient in conserving the black-breasted puffleg or its habitat. Therefore, we find that the existing regulatory mechanisms, as implemented, are inadequate to either eliminate or mitigate the primary threat of habitat destruction to the black-breasted puffleg.

Interspecific Competition: One peer reviewer suggested that another species of hummingbird, the gorgeted sunangel (Heliangelus strophianus), may be a potential threat (Jahn 2008, pp. 34, 36-37) to the black-breasted puffleg. This species occupies a similar ecological niche and may be moving northward into the black breasted puffleg's habitat due to loss of suitable habitat. The gorgeted sunangel consumes similar plant species and is slightly larger in size than the black-breasted puffleg. Only one aggressive interaction between the species has been observed; however, they both aggressively defend their territories (Guevara 2009, pers. comm.). Loss of the gorgeted sunangel's habitat may exacerbate the threat posed to the puffleg in the form of competition from the gorgeted sunangel moving upward in altitude into the black-breasted puffleg's range.

Small, Declining Population Size: The black-breasted puffleg population has declined primarily as a result of habitat loss (Bleiweiss and Olalla 1983, pp. 656-661; BLI 2009, p. 1; Collar et al. 1992, pp. 516-517) (Factor A). A collection of over 100 museum specimens suggests that the species was more common and more widespread than the currently known populations (BLI 2004, p. 2; Collar et al. 1994, p. 121). The black-breasted puffleg inhabits a narrow elevational strip between 6,791 and 11,483 ft (2070 - 4570 m) (BLI 2010, p 1; Fjeldsa and Krabbe 1990, p. 272; Krabbe et al. 1994, pp. 8-9). Within the species' range, aerial photographs of the northern and western slopes of Volcan Pichincha between 1982 and 2001 showed a continued loss of forested area while agricultural area increased by 24 percent (Santander, et. al. 2004, p. 10). As indicated above, the current extent of the species' range is believed to be between 27 mi2 (70 km2) and 54 mi2 (139 km2). The total population is currently estimated to be 200-270 individuals, and believed to be in decline (BLI 2010, p. 1).

Rare species (i.e., species with small population sizes or restricted ranges) may be vulnerable to a variety of stochastic processes that can affect their risk of extinction on various timescales. Whether a rare species may meet the definition of a threatened or an endangered species under the Act depends on the potential threats involved, the probable timescale of the potential threat, and the characteristics of the species and its habitat. Factors can include the species' dependence on a specific habitat type and its inability to move away from a stressor or habitat degradation. Although the Trochilinae hummingbirds tend to be food generalists (Ross and Allmon 1990, pp. 356-357), the black-breasted puffleg is restricted to a small geographic range. Rare species such as this puffleg that are experiencing declining populations and threats are particularly vulnerable to risks such as inbreeding depression, loss of genetic variation, and accumulation of new mutations. Inbreeding can have individual or population-level consequences, either by increasing the phenotypic expression (the outward appearance or observable structure, function, or behavior of a living organism) of recessive, deleterious alleles or by reducing the overall fitness of individuals in the population (Charlesworth & Charlesworth 1987, p. 231; Shaffer 1981, p. 131). Small, isolated populations of wildlife species are also susceptible to demographic problems (Shaffer 1981, p. 131), which may include reduced reproductive success of individuals and skewed sex ratios. Once a population is reduced below a certain number of individuals, it can tend to rapidly decline towards extinction (Franklin 1980, pp. 147-148; Gilpin and Soule 1986, p. 25; Holsinger 2000, pp. 64-65; Soule 1987, p. 181).

The black-breasted puffleg's restricted range, combined with its small, declining population (BLI 2009, unpaginated; del Hoyo et al. 1999, p. 639; Fjeldsa and Krabbe 1990, p. 272; Krabbe et al. 1994, p. 9), makes the species particularly vulnerable to the threat of adverse natural (e.g., genetic, demographic, or environmental) and manmade (e.g., deforestation, habitat alteration, fire) events that destroy individuals and their habitat (Harris and Pimm, 2008, p. 164; Holsinger 2000, pp. 64-65; Primack 1998, pp. 279-308; Young and Clarke 2000, pp. 361-366). Due to lack of short- and long term viability of its existing population, we consider the black-breasted puffleg to be at risk of extinction.

Climate Change: The Intergovernmental Panel on Climate Change (IPCC) was established in 1988 by the World Meteorological Organization and the United Nations Environment Program in response to growing concerns about climate change and, in particular, the effects of global warming. Although the extent of warming likely to occur is not known with certainty at this time, the IPCC has concluded that warming of the climate is unequivocal, and that continued greenhouse gas emissions at or above current rates will cause further warming (Meehl et al. 2007, p. 749). Eleven of the 12 years from 1995 through 2006 rank among the 12 warmest years in the instrumental record of global surface temperature since 1850 (IPCC 2007). Climate-change scenarios estimate that the mean air temperature could increase by more than 3 °C (5.4 °F) by 2100 (IPCC 2007, p. 46). We recognize that there are scientific differences of opinion on many aspects of climate change, including the role of natural variability in climate. We rely primarily on synthesis documents (e.g., IPCC 2007) that present the consensus view of a very large number of experts on climate change from around the world. We have found that these synthesis reports, as well as the scientific papers used in those reports or resulting from those reports, represent the best available scientific information we can use to inform our decision.

However, climate change models that are currently available are not yet able to make meaningful predictions of climate change for specific, local areas (Parmesan and Matthews 2005, p. 354). We do not have models to predict how the climate in the range of this bird species will change, and we do not know how any change that may occur would affect these species. However, models and research suggest that climate change is an additional stress for species such as the black breasted puffleg that are already threatened by other environmental changes to their habitats (McCarty 2001, p. 325; Brook et al 2008, pp. 453-454). Warming has been predicted to occur to a greater degree in the higher altitudes than in the lower altitudes (Bradley 2006, p. 1). Although we do not find that climate change, in and of itself, is a threat to the species, a discussion of the synergistic effects of El Niño, deforestation, and drought follows.

Regional and localized models are less prevalent and sometimes absent with respect to climate change. Research has been conducted with respect to the interactions between El Niño and deforestation and how it affects montane cloud forests (Laurance 1998, p. 413, Laurance and Williamson 2001, p. 1529; Still 1999, p. 608). From this research, we can predict how increases in temperature due to climate change may subsequently interact with other stressors. In ecosystems such as the one where the black breasted puffleg exists, mountains are frequently shrouded in trade wind clouds and mist in combination with rainfall. This habitat type is termed tropical montane cloud forest. Many features of these ecosystems, such as vegetation morphology, are related to cloud formation. One of the most significant characteristics is horizontal precipitation, where frequent cloud cover is the deposition of cloud droplets on vegetation (Laurance and Williamson 2001, p. 1529; Still 1999, p. 608). Fragmented forests, such as the one where the black breasted puffleg exists, are more susceptible to droughts in El Niño years (Laurance and Williamson 2001, p. 1529). With increased deforestation, plant evapotranspiration is reduced, subsequently causing a decrease in rainfall, which could in turn increase the vulnerability of the forest to fire. Researchers suggest that there may be a deforestation threshold (Laurance and Williamson 2001, p. 1529). All of these stressors act synergistically, and warming climate could exacerbate the likelihood of drought and subsequent forest fire (Foden et al. 2008, pp. 1-4). The relationship between El Niño (and increased El Niño events), deforestation, drought, and forest fires all interacting synergistically increase the likelihood of increased severity in drought and forest fires (Laurance 1998, p. 413).

Research suggests that birds are moving northward to cooler climates in response to climate change (Sorte and Jetz 2008, pp. 865, 866). In part, because the black breasted puffleg's habitat is at high elevations, it has been suggested there may no longer be habitat for this species. The higher elevations could potentially be affected by the synergistic effects of drought, El Niño, and forest fires as discussed above. Plant nectar and other food sources upon which the black-breasted puffleg depends may require a particular humidity level that is associated with cloud forest conditions. Conditions associated with this shift in elevation include possible physiological changes and changes in species assemblages in part due to phenology (when plants bloom based on temperature and daylight), all of which could potentially affect the black breasted puffleg's fitness (Foden et al 2008, pp. 1-5). These potential changes act in concert with other threats to the species such as habitat loss and degradation, magnifying the synergistic effects on this species. However, several reserves exist for the explicit protection of black breasted puffleg habitat. Because these reserves exist and contain large swaths of protected forested habitat (believed to be at least 6,096 ac/2,467 ha), the threat of drought and forest fires is ameliorated. Therefore, we do not consider the synergistic effects of drought, El Niño, and forest fires to have a significant impact on the species' habitat now or in the foreseeable future.

Invasive species. An increase in the atmospheric concentration of carbon dioxide (CO2) has implications beyond those associated with warming temperatures. The change in CO2 may increase the ability of invasive plant species to outcompete native plant species on which the black-breasted puffleg feeds. Higher concentrations of CO2 may be favorable to invasive plant species (Smith et al. 2000, pp. 79-82). Emissions of CO2, considered to be the most significant anthropogenic greenhouse gas, increased due to human activities by approximately 80 percent between 1970 and 2004 (IPCC 2007, p. 36). CO2 emissions from energy use have been projected to increase by 40 to 110 percent between 2000 and 2030 (IPCC 2007, p. 44). We therefore expect continuing production of atmospheric CO2, at or above current levels, as predicted, to contribute to the spread of invasive plant species and have a detrimental impact on the species' habitat.

Projected climate change and its associated consequences (change in species composition, distribution, and elevation) has the potential to affect the black-breasted puffleg. Warmer temperatures may interact with other stressors such as habitat degradation and loss (Brook et al. 2008, p. 1). Competition with other species and an increase in invasive plant species, which could outcompete the black-breasted puffleg's food sources, are other potential stressors. Warmer temperatures and greater concentrations of atmospheric carbon dioxide will likely cause changes in the plant species composition in this species' habitat, as well as likely shift the black-breasted puffleg altitudinal distribution (Jahn 2008). However, this species is a generalist feeder and has been seen in lower elevations in reserves and protected areas. We believe that the above stresses to the species are buffered by the establishment of reserves and protected areas for this species.

The black-breasted puffleg is currently restricted to possibly three small and declining populations within a small geographic range. The limited availability of suitable habitat makes it vulnerable to genetic and demographic risks that negatively impact the species' short- and long-term viability. The species' population size has declined considerably within the past 10 years (50-79 percent), and this rate of decline is expected to continue. Other threats to the species include possible competition and displacement by the Gorgeted sunangel, displacement of the black-breasted puffleg's food sources by nonnative invasive plant species, and genetic isolation due to habitat fragmentation and isolation of small populations.

Based on the best available information, we have determined that the species is particularly vulnerable to the threat of adverse natural (e.g., genetic, demographic) and manmade events (introduction of invasive species and drought and fires caused by habitat loss and destruction) that destroy individuals and their habitat. The genetic and demographic risks are exacerbated by the manmade factors. Therefore, we find that other natural or manmade factors are threats to the continued existence of the black-breasted puffleg.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the black-breasted puffleg. The extreme lack of data for this species makes it difficult to discern a trend in population numbers with statistical confidence. We believe it is reasonable to infer that the trend is downward; the best available scientific and commercial data suggest that over the past two decades, this species has likely significantly declined in abundance.

There are three primary factors impacting the continued existence of the black-breasted puffleg: (1) Habitat destruction, fragmentation, and degradation (factor A); (2) limited, declining population size and isolation of remaining subpopulations (factor E); and (3) inadequate regulatory mechanisms (factor D). The black-breasted puffleg, a small hummingbird with two to three subpopulations, occupies a narrow range of distribution, preferring temperate elfin forests at altitudes of between 6,791 and 11,483 ft (2,070 and 4,570 m). The species is an altitudinal migrant, spending the breeding season (November-February) in the humid elfin forest and the rest of the year at slightly lower elevations based on available food sources.

The primary threat to this species, widespread deforestation, has led to habitat loss. Conversion of primary forests to human settlement and agricultural uses has led to the fragmentation of habitat throughout the range of the black-breasted puffleg and isolation of the remaining populations. Its habitat, which is already disturbed and fragmented, continues to be altered by anthropogenic factors such as habitat alteration, introduction of invasive species, and habitat destruction and fragmentation as a result of local sustenance use, particularly agriculture. Although the puffleg is listed as a critically endangered species under Ecuadorian law and part of its range occurs within a protected area, implementation of existing regulatory mechanisms are inadequate to protect the species (Factor D), as they have been ineffective in curbing the primary threat to the black-breasted puffleg, which is habitat loss or alteration (Factor A).

The total population size of the black-breasted puffleg is estimated to range from 200 to 270 adult individuals, with a declining trend. The black-breasted puffleg's restricted range, combined with its small population size, makes the species particularly vulnerable to the threat of adverse natural (e.g., genetic, demographic, or environmental) and manmade (e.g., deforestation, habitat alteration, fire) events that destroy individuals and their habitat.

The population of this species has declined between 50 and 79 percent in the past 11 years. More than 20 percent of this loss occurred within the past 6 years, including the possible local extirpation of the species from Volcan Atacazo. These rates of decline are expected to continue. Habitat destruction, alteration, conversion, and fragmentation (Factor A) have been and continue to be factors in the black-breasted puffleg's decline. The impacts of habitat loss are exacerbated by the inadequacy of existing regulatory mechanisms (Factor D) and the species' already small and declining population size, making the black-breasted puffleg particularly vulnerable to natural and human factors (e.g., genetic isolation and possible inbreeding, and the introduction of invasive species) (Factor E). We consider the threats to the black-breasted puffleg to be equally present and of the same magnitude throughout the species' current range. Based on the best available scientific and commercial information regarding the past, present, and potential future threats faced by the black-breasted puffleg, this species warrants protection under the Act, and we determine that the black-breasted puffleg is endangered throughout its range.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and groups, and individuals.

Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is being designated. However, given that the black-breasted puffleg is not native to the United States, no critical habitat is being proposed for designation with this rule.

Section 8(a) of the Act authorizes limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species and to provide assistance for such programs in the form of personnel and the training of personnel.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. As such, these prohibitions would be applicable to the black-breasted puffleg. These prohibitions, pursuant to 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to “take” (take includes: Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt any of these) within the United States or upon the high seas, import or export, deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of a commercial activity, or sell or offer for sale in interstate or foreign commerce, any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species and 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. A notice outlining our reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited in this proposed rule is available on the Internet at http://www.regulations.gov or upon request from the Endangered Species Program, Branch of Listing, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this final rule are the staff of the Endangered Species Program, Branch of Foreign Species, U.S. Fish and Wildlife Service (see ADDRESSES section).

Background

In this final rule, we determine endangered status for the medium tree-finch (Camarhynchus pauper) under the Act.

Section 4(b)(3)(A) of the Act requires us to make a finding (known as a “90-day finding'') on whether a petition to add, remove, or reclassify a species from the list of endangered or threatened species has presented substantial information indicating that the requested action may be warranted. To the maximum extent practicable, the finding shall be made within 90 days following receipt of the petition and published promptly in the Federal Register. If we find that the petition has presented substantial information indicating that the requested action may be warranted (a positive finding), section 4(b)(3)(A) of the Act requires us to commence a status review of the species if one has not already been initiated under our internal candidate assessment process. In addition, section 4(b)(3)(B) of the Act requires us to make a finding within 12 months following receipt of the petition on whether the requested action is warranted, not warranted, or warranted but precluded by higher-priority listing actions (this finding is referred to as the “12-month finding''). Section 4(b)(3)(C) of the Act requires that a finding of warranted but precluded for petitioned species should be treated as having been resubmitted on the date of the warranted but precluded finding, and is therefore subject to a new finding within 1 year and subsequently thereafter until we take action on a proposal to list or withdraw our original finding. The Service publishes an annual notice of resubmitted petition findings (annual notice) for all foreign species for which listings were previously found to be warranted but precluded.

On May 6, 1991, we received a petition (hereafter referred to as the 1991 petition) from the International Council for Bird Preservation (ICBP), to add 53 species of foreign birds to the list of Threatened and Endangered Wildlife (50 CFR 17.11(h)), including the medium tree-finch that is the subject of this final rule. In response to the 1991 petition, we published a positive 90-day finding on December 16, 1991 (56 FR 65207), for all 53 species, and announced the initiation of a status review. On March 28, 1994 (59 FR 14496), we published a 12-month finding on the 1991 petition, along with a proposed rule to list 30 African birds under the Act. In that document, we proposed listing 15 of the 53 bird species included in the 1991 petition, and announced our finding that listing the remaining 38 species from the 1991 petition, including the medium tree-finch, was warranted but precluded because of other listing activity.

On May 21, 2004 (69 FR 29354), and April 23, 2007 (72 FR 20184), we published in the Federal Register notices announcing our annual petition findings for foreign species. In those notices, we made warranted but precluded findings for all outstanding foreign species from the 1991 petition, including the medium tree-finch which is the subject of this final rule.

Per the Service's listing priority guidelines (September 21, 1983; 48 FR 43098), our 2007 annual notice of review (ANOR) (April 23, 2007; 72 FR 20184) identified the listing priority numbers (LPNs) (ranging from 1 to 12) for all outstanding foreign species, including the medium tree-finch, which was designated with an LPN of 11. The medium tree-finch does not represent a monotypic genus. As reported in the 2007 ANOR, the magnitude of threat to the species was moderate as the species was common in the forested highlands and its habitat had not been highly degraded. The immediacy of threat was nonimminent because the species' habitat is protected by the area's national park and World Heritage Site status.

On January 23, 2008, the United States District Court ordered the Service to propose listing rules for five foreign bird species, actions which had been previously determined to be warranted but precluded: The Andean flamingo (Phoenicoparrus andinus), black-breasted puffleg (Eriocnemis nigrivestis), Chilean woodstar (Eulidia yarrellii), medium tree-finch (Camarhynchus pauper), and the St. Lucia forest thrush (Cichlherminia herminieri sanctaeluciae). The court ordered the Service to issue proposed listing rules for these species by the end of 2008.

On July 29, 2008 (73 FR 44062), we published in the Federal Register a notice announcing our annual petition findings for foreign species. In that notice, we announced that proposing 30 taxa for listing under the Act is warranted. In order to comply with the recent court-order, the medium tree-finch was included as one of the 30 taxa for which listing is warranted.

In the proposed rule published on December 8, 2008 (73 FR 74434), we requested that all interested parties submit written comments on the proposal by February 6, 2009. We received six comments. We received a comment from the Center for Biological Diversity supporting the proposed listing. Three comments received were from peer reviewers, and two other comments were received from the public that contained no substantive information. We did not receive any requests for a public hearing.

During the comment period for the proposed rule, we received three comments containing substantive information. No comments in opposition of the rule were received. All substantive information provided during the comment period has either been incorporated directly into this final determination or addressed below.

New clarifying information, particularly concerning the degree of threat by the parasitic fly (Philornis downsi) and confirmation of the success of the goat eradication program, was provided by one peer reviewer and has been incorporated into this finding.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise that included familiarity with the medium tree-finch and its habitat, biological needs, and threats. We received responses from three of the peer reviewers.

We reviewed all comments received from the peer reviewers for substantive issues and clarifying information regarding the listing of the medium tree-finch. The peer reviewers generally concurred with our methods and conclusions and provided additional clarifications and suggestions to improve the final rule. Peer reviewer comments are addressed in the following summary and incorporated into this final rule as appropriate.

Comment 1: Three independent specialists agreed that our description and analysis of the biology, habitat, population trends were accurate and agreed generally with our conclusions. One researcher provided recent information on the medium tree finch's nesting success between 2004 and 2008; indicating that between 4 and 8 percent of nests produced fledglings.

Our Response: This information has been considered and incorporated into the rulemaking as appropriate.

Comment 2: Three commenters supported the proposed listing.

Our Response: While general support of a listing is not, in itself, a substantive comment that we take into consideration as part of our five-factor analysis, we appreciate the support of these commenters. Support is important to the conservation of foreign species.

Comment 3: One commenter suggested that tourist visitation to the Scalesia highlands (the preferred habitat of the Medium Tree finch) increased more than tenfold since 2004, indicating that there has been an increase in the number of bus rides and highland tours.

Our Response: We acknowledge that tourism may be increasing on Floreana Island; however, no supporting information was provided with the comment for corroboration. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) 2007 report indicated that visitation has grown in Galapagos from 40,000 in 1991 to over 120,000 in 2006 (pp. 9-10). This is discussed in factor B, below.

Comment 4: One commenter provided additional information on this species, specifically three research papers — two published in 2008 and the other in 2007— regarding the avian parasite discussed in factor C below.

Our Response: The Service has reviewed the research, and the information has been considered and incorporated into the rulemaking as appropriate.

A commenter pointed out a typographical mistake, which we have corrected. Santa Maroa Island was corrected to Santa Maria Island. We also updated the clutch size to clarify that it is generally between two and three for this species, rather than between two and four, which was the size indicated in the proposed rule. Additionally, the medium tree-finch population estimate and trend has been updated in this document (see Species Information below).

The medium tree-finch (Camarhynchus pauper) is endemic to Floreana Island in the Galapagos Islands, Ecuador (Harris 1982, p. 150; Sibley and Monroe 1990, p. 771; BirdLife International (BLI) 2010). This species is one of the 14 species of Darwin's finches, collectively named in recognition of Charles Darwin's work on the theory of evolution (Grant 1986, p. 6). It is approximately 12.5 centimeters (cm) (5 inches (in)) in length (Harris 1982, p. 150; BLI 2010). Medium tree-finches have wings and tails that are short and rounded, and often hold their tails slightly cocked in a wren-like manner (Jackson 1985, p. 188). Males have a black head, neck, and upper breast (Harris 1982, p. 150; Jackson 1985, p. 188; Fitter et al. 2000, p. 78), and an underside that is gray-brown, and white or yellowish in color (BLI 2010). Their tail and back are olive green (Fitter et al. 2000, p. 78). Females have a head that is more gray-brown (BLI 2010), and a body that is generally olive-green above and pale yellowish below (Fitter et al. 2000, p. 78). It is similar to the large and small tree-finches of the same genus, but differs from the large tree-finch (Camarhynchus psittacula) primarily due to its significantly smaller and less parrot-like beak, and from the small tree-finch (Camarhynchus parvulus) because of its larger beak (Harris 1982, p. 150; BLI 2010). It is also known as the Charles tree-finch, the Santa Maria tree-finch, and the Floreana tree-finch (Sibley and Monroe 1990, p. 771). This is due to the fact that the island of Floreana is also referred to as Charles Island or Santa Maria Island, the official Spanish name of the island (Harris 1973, p. 265; Grant 1986, Appendix). The species is locally known as “Pinzon Mediano de arbol” (Castro and Phillips 1996, p. 130).

The species was first taxonomically described by Ridgeway in 1890 (Sibley and Monroe 1990, p. 771). Sulloway (2008a, pers. comm.) recently conducted an analysis of the relative numbers of tree-finch specimens in the California Academy of Sciences' collections, compared with the frequencies found by Dr. Sonia Kleindorfer between 2000 and 2006. Sulloway found that the population of the medium tree-finch did not significantly change for over a century, during which time settlers and introduced animals and plants were present on Floreana (2008b, pers. comm.). Sulloway's analysis indicates that the medium tree-finch is much less common today than it was prior to 1961 (Sulloway 2008a, pers. comm.). Specifically, the chance of seeing a medium tree-finch today is approximately 25 percent less than it would have been more than 50 years ago, as compared to the likelihood of spotting a large or small tree-finch (Sulloway 2008a, pers. comm.). As reported by Sulloway (2008a, pers. comm.) and O'Connor et al. (2009, p. 862), the population density of the medium tree-finch is declining. O'Connor et al found (2008a) density of the species decreased from 154 birds/km2 (59 birds/mi2) in 2004 to 60 birds/km2 (23 birds/mi2) in 2008.

In 1996, Stotz et al. considered the relative abundance of the species to be “common” (1996, p. 262). BirdLife International currently estimates the population to be between 1,000 and 2,499 birds (2010, p. 1). In 2006, Fessl et al. reported that there were about 300 breeding pairs remaining on Floreana (2006a, p. 745). In another study, researchers compared bird abundance survey data from 2004 and 2008 in order to estimate the population density of the medium tree-finch in the highlands of Floreana (O'Connor et al. 2008, 20 pp). Based on the results of their study, O'Connor et al. (2008, p. 1) estimate that the total medium tree-finch population in 2008 consisted of 860 to 1,220 individuals (an average of 72 birds/km2 (28 birds/mi2)) observed in their prime habitat. Their study also showed that the population density of the species overall decreased from 154 birds/km2 (59 birds/mi2) in 2004 to 60 birds/km2 (23 birds/mi2) in 2008 (pp. 6-7).

Floreana, one of the 19 principal islands that make up the Galapagos archipelago (McEwen 1988, p. 234), is 173 km2 (67 mi2) in area, and has a maximum elevation of 640 meters (m) (2,100 feet (ft)) (Swash and Still 2005, p. 10).

The medium tree-finch mainly occurs in the moist highland forests (i.e., the Scalesia zone, named for the dominant tree species, Scalesia spp., found in this zone) (Stewart 2006, p. 193; Kleindorfer 2007, p. 796), primarily above 300 m (984 ft) (Castro and Phillips 1996, p. 130). The Scalesia zone begins at an altitude of 180 - 200 m (591 - 656 ft), and ends at approximately 600 m (1,968 ft) ((Wiggins and Porter 1971, p. 22; Stephenson 2000, p. 34). On Floreana, the medium tree-finch's habitat is a lush evergreen cloud forest dominated by Scalesia pedunculata (daisy tree), the largest of the 20 species of Scalesia found in the Galapagos, (Jackson 1985, p. 95; Fitter et al. 2000, p. 137). Scalesia form dense stands with S. pedunculata frequently reaching 15 m (49 ft) in height, and 20 m (66 ft) or more given good environmental conditions (Wiggins and Porter 1971, p. 22; Fitter et al. 2000, p. 137). A large amount of the Scalesia zone has been destroyed on the inhabited islands. The zone is the best area for agriculture because the garua (dense sea mist that sometimes blankets the highlands) keeps the area well watered during the cool season (Jackson 1985, p. 61; Fitter et al. 2000, p. 137). Currently, 12 to 17 km2 (4.6 to 6.6 mi2) of Scalesia-dominated forest is believed to remain (O'Conner et al. 2008; p. 8).

On Floreana, other common trees in the Scalesia zone are the endemic trees Croton scouleri (Galapagos croton) and Zanthoxylum fagara (lime prickly-ash). Dominant plant species include Phoradendron henslowii (mistletoe), the shrub Macraea laricifolia, and introduced fruit species such as Citrus limetta, Passiflora edulis, and Psidium guajava (Christensen and Kleindorfer 2008, p. 5). Beneath the top of the canopy, epiphytes (plants that live on another plant without causing harm to the host plant) cover trunks, branches, twigs, and even leaves of some plant species (Wiggins and Porter 1971, p. 24; Fitter et al. 2000, p. 137). Common epiphytes found in the Scalesia zone are mosses, liverworts, ferns, Peperomia, bromeliads (such as Tillandsia), and orchids (Wiggins and Porter 1971, pp. 22, 24; Jackson 1985, p. 60; Fitter et al. 2000, p. 137). Epiphytes are a prominent feature of the moist zones of the Galapagos Islands because of the large amount of time that clouds and mist cover the upper reaches of the higher islands (Fitter et al. 2000, p. 137).

In 1996, researchers reported that the elevational zone in which the medium tree finch is most common is “Hill Tropical,” described as hills and lower slopes in the altitude range of 500 - 900 m (1,640 - 2,953 ft) (Stotz et al. 1996, pp. 121, 262). The species reaches its minimum elevation in relatively low-relief lowland areas and its maximum elevation at 600 m (1,969 ft) (Stotz et al. 1996, p. 262). As a result, one can infer from this data that the medium tree-finch is predominantly found at the highest end of its elevational distribution, between 500 and 600 m (1,640 and 1,969 ft).

These researchers found that the medium tree-finch forages at more than one level within its habitat; specifically, they noted that it can be found foraging from the understory (undergrowth) to the canopy (Stotz et al. 1996, pp. 120, 262). Camarhynchus species were found to spend a little less than 25 percent of their time foraging at the ground level, while spending the majority of their time foraging above ground (Bowman 1963, p. 132). The medium tree-finch uses its powerful tip-biting bill to search under twigs and foliage, probe crevices in the bark of trees, and cut into tough woody tissues in search of insect larvae (Bowman 1963, pp. 117, 125), which is its primary food source (Bowman 1963, p. 121). The species also feeds, to a lesser extent, on seeds (Bowman 1963, p. 121), nectar, young buds, and leaves (Castro and Phillips 1996, p. 130).

The medium tree-finch prefers to forage and nest in the tree Scalesia pedunculata (O'Connor et al. 2009, p. 855). Its clutch size is generally between two and three (Fessl et al 2006a, p. 740, Dudaniec et al. 2007, pp. 326-327; O'Connor et al. 2009, p. 855). The nests of Darwin's finches are similar in construction from one species to another: the male builds a dome-shaped nest, made from twigs, grass, pieces of bark, lichens, feathers, and other materials, with a small, round side entrance (Jackson 1985, p. 191). In a study of the nesting success of the small tree-finch in the highlands of Santa Cruz Island in the Galapagos, Kleindorfer (2007, p. 796) found that all nests were located 6 to 10 m (20 to 33 ft) above the ground, on horizontal branches of Scalesia pedunculata, and were positioned by interweaving surrounding smaller twigs and leaves.

In 1982, Harris reported that the species was common in the highlands on Floreana and uncommon to rare on the coast (p. 150). Although the current range of the medium tree-finch is officially estimated to be 23 km2 (9 mi2) (BLI 2010), which encompasses the entire highland area of Floreana, the medium tree-finch is restricted to fragmented forest patches within the highlands. The actual available habitat has been estimated to be approximately 4 to 17 km2 (4.5 to 6.5 mi2) (O'Connor et al. (2008, p. 8; O'Connor et al. 2009, p. 856).

The medium tree-finch is identified as a critically endangered species under Ecuadorian law, Decree No. 3,516-Unified Text of the Secondary Legislation of the Ministry of Environment (ECOLEX 2003b). As of 2010, this poorly known species is considered “Critically endangered” by the International Union for Conservation of Nature (IUCN). This is because it (1) has a very small range, (2) is restricted to a single island, and (3) recent information suggests that it is declining rapidly due to the parasite Philornis downsi. (BLI 2010, p. 1).

In 1996, in a review of neotropical birds, Stotz et al. described the conservation priority for the medium tree-finch as “high.” During this review, they defined this species as “threatened,” which generally equated to range or habitat restriction, and already showing signs of serious population decline (1996, p. 262).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. The five listing factors are: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Below is an analysis of these five factors.

Floreana has the longest history of human habitation of any of the Galapagos Islands (Schofield 1989, p. 229; Fitter et al. 2000, p. 207). It was first settled in 1832, 3 years before Darwin's historic visit (Jackson 1985, p. 3; Stewart 2006, pp. 55, 68). With human settlement came changes to the habitat on Floreana, including clearing of native vegetation for agriculture and ranching, as well as the introduction of nonnative animals and plants (Grant et al. 2005, p. 501).

The medium tree-finch prefers to nest and forage in the tree Scalesia pedunculata (O'Connor et al. 2009, p. 856). Currently, S. pedunculata only occurs in small patches in the highlands of Floreana because much of the highlands have been cleared for agriculture, destroyed by introduced mammals, and outcompeted by invasive plants (O'Connor et al. 2008, p. 2). Although the Galapagos National Park covers 97 percent of the land in the Galapagos Islands, a disproportionate amount of the limited moist highlands falls in the remaining 3 percent (Stewart 2006, p. 105), meaning the majority of the medium tree-finch's habitat is unprotected. A large amount of the highlands has been cleared or altered for farming. Much of it has been further degraded or destroyed by the introduction of animals and plants (Stewart 2006, p. 105). Currently, only 12 to 17 km2 (4.5 to 6.5 mi2) of habitat for the medium tree-finch remains in the highlands of Floreana, and it continues to decline due to the factors described below.

Birds, such as the medium tree-finch, are currently facing problems in the highlands of inhabited islands like Floreana due to the extensive destruction and degradation of habitat as a result of agriculture (Castro and Phillips 1996, pp. 22-23; Fitter et al. 2000, p. 74; BLI 2010). On Floreana, the highlands (or Scalesia zone) cover an area of approximately 21 km2 (8 mi2) (O'Connor et al. 2008, pp. 2-3). Within this highland forest, approximately 4 km2 (1.5 mi2) has been cleared for agriculture (O'Connor et al. 2008, p. 8). Agriculture is concentrated at higher elevations because of the availability of richer soil and greater moisture (Schofield 1989, p. 233). The Scalesia zone is the richest zone in terms of soil fertility and productivity (Jackson 1985, p. 61), and therefore has been extensively cleared for agricultural and cattle ranching purposes (Grant 1986, p. 30; Harris 1982, p. 37; Jackson 1985, pp. 61, 233). Stotz et al. (1996) found that the medium tree-finch forages in multiple strata, including the understory (p. 262). When the forest is cleared, as is done with agriculture and ranching, the understory layer is destroyed which, can have a negative effect on the species (Stotz et al. 1996, p. 121).

Introduced species are currently considered a major threat to the native species of the Galapagos Islands (Causton et al. 2006, p. 121; Fitter et al. 2000, p. 218). Since the early 1800s, humans have introduced animals and plants to the Galapagos Islands that have threatened the native vegetation (Schofield 1989, pp. 227, 233). These are further discussed below.

When settlers arrived in the Galapagos Islands, they brought with them domestic animals, some of which escaped and started feral populations (Jackson 1985, p. 233). On Floreana, introduced livestock animals include goats (Capra hircus), donkeys (Equus asinus), cattle (Bos taurus), and pigs (Sus scrofa domesticus) (Christensen and Kleindorfer 2008, pp. 383-391; Jackson 1985, p. 232). These animals impact the island by significantly altering the habitat. Goats and donkeys damage vegetation by trampling and grazing to the point where native plants are not able to regenerate as easily as before. Wild pigs dig up and eat plant roots. (Schofield 1989, pp. 229-233; Grant et al. 2005, p. 501). This impact, in addition to predation of endemic species by introduced cats (Felis catus) and introduced black rats (Rattus rattus) (discussed under Factor C), have been linked with the extinction of at least four bird species on the island of Floreana: the large ground finch (Geospiza magnirostris), the sharp beaked ground finch (Geospiza difficilis), the Floreana mockingbird (Nesomimus trifasciatus) (Christensen and Kleindorfer 2008, pp. 383-391; Grant et al. 2005, p. 501; Harris 1982, pp. 36-37; Sulloway 1982, pp. 68-69, 88-89), and most recently the warbler finch (Certhidea fusca) (Grant et al. 2005, p. 501).

Introduced animals magnify the detrimental effects of clearing large areas of native vegetation on Floreana for agriculture and ranching (Grant 1986, p. 30), by further degrading and destroying the habitat (Grant et al. 2005, p. 501). The habitat of the medium tree-finch continues to be altered by herbivore degradation caused by free-ranging domestic livestock (BLI 2010; Jackson 1985, p. 110; Lawesson 1986, p. 12). Lawesson (1986) reported that the Scalesia forest on Floreana is under the most immediate threat from introduced animals (p. 13).

Goats: Of all the introduced animals in the Galapagos Islands, goats are the most destructive (Fitter et al. 2000, p. 218; Schofield 1989, p. 227). Goats were probably introduced to the Galapagos Islands in the 19th century by whalers, fisherman, and pirates, who were looking for an alternative source of meat (Charles Darwin Research Station 2008a; Fitter et al. 2000, p. 218). They were also brought to the islands by settlers as livestock (Charles Darwin Research Station 2008a). Goats are able to adapt to varying conditions extremely well and therefore they thrive at all elevations in the Galapagos Islands (Schofield 1989, p. 229), from the arid lowlands to the moist highlands (Fitter et al. 2000, p. 218). They have a rapid reproductive rate, which has allowed their population to flourish at the expense of native animals and vegetation (Jackson 1985, pp. 232-233). Goats destroy native vegetation by eating plants down to the ground (Smith 2005, p. 304), converting forests into barren grasslands and causing erosion (Charles Darwin Research Station 2008a). Because goats are able to eat a variety of vegetation, they have quickly eaten their way across an island (Smith 2005, p. 304). A study of goats on Santiago Island in the Galapagos showed that at higher elevations, browsing by goats had eliminated young trees of the dominant forest overstory species consisting of Scalesia pedunculata, Zanthoxylum fagara, and Psidium galapageium, in addition to the forest understory (Schofield 1989, p. 229). On Floreana, Schofield reported that approximately 77 percent of the plant species other than cacti were either reduced in number or completely eliminated by goats ((1989, p. 229). As discussed in detail below, however, eradication programs have significantly reduced the goat population on Floreana Island.

Cattle: Cattle were introduced to Floreana in 1832 (Hoeck 1984, as cited in Schofield 1989, p. 231). Initially, cattle were kept at lower elevations, but with inadequate moisture available in the lower zones, they were allowed to move into the highlands (Kastdalen 1982, p. 9). Cattle trample and heavily graze native vegetation (Hamann 1981 and Van der Werff 1979, as cited in Schofield 1989, p. 231). When allowed to roam freely through highland forests, they essentially destroy the understory layer (Stotz et al. 1996, p. 121). On Santa Cruz Island, cattle inhibited growth of Scalesia pedunculata (Kastdalen 1982, p. 8). Schofield (1989) reports that no organized effort has been made to eliminate cattle, but restrictions by the Galapagos National Park Service encourage ranchers to fence in herds on Floreana (p. 232). However, cattle still stray into native vegetation to graze (Schofield 1989, pp. 232, 234).

Donkeys: In 1887, large numbers of donkeys (Equus asinus) were seen grazing on hillsides and at the summit on Floreana (Slevin 1959, as cited in Schofield 1989, p. 232). By 1932, donkeys had already tramped out regular paths through the vegetation on Floreana (Wittmer 1961, as cited in Schofield 1989, p. 232). On Santa Cruz, Kastdalen (1982) noted that they followed cattle into the humid highlands (p. 9). Studies have shown that donkeys on Floreana have depleted some populations of Scalesia spp. and Alternanthera nesiotes, another endemic plant (Eliasson 1982, p. 10). As discussed in detail below, however, eradication programs have significantly reduced the donkey population on Floreana Island.

Pigs: Pigs (Sus scrofa) have lived in the Galapagos Islands for over 150 years (Schofield 1989, p. 232). In 1835, Darwin remarked upon the many wild pigs he observed in the forests on Floreana (Schofield 1989, p. 232). Pigs live primarily at higher elevations, where abundant forage is available year-round (Schofield 1989, p. 232). Pigs destroy native vegetation (Jackson 1985, p. 233) directly by digging up and eating plants (Hoeck 1984, as cited in Schofield 1989, p. 232).

Eradication Programs: Since the Galapagos National Park and the Charles Darwin Foundation were established in 1959, efforts to control and eradicate introduced animals have been ongoing (Galapagos Conservancy n.d.(a)). In 1965, the Charles Darwin Research Station began the first eradication program to rid the Galapagos island of Santa Fe of goats (Fitter et al. 2000, p. 218). Ten years after the program began, the last goat was culled and now, the vegetation on the island has recovered and native species are beginning to thrive once again (Fitter et al. 2000, p. 218). Over the years, many of these control programs have been successful in eradicating introduced animals from some of the Galapagos Islands including ridding Santiago Island of 25,000 feral pigs (Smith 2005, p. 305), removing goats from Espanola, Plaza Sur, Santa Fe, Marchena and Rabida Islands (Smith 2005, p. 305), and the very successful “Project Isabela,” which recently eliminated goats from Pinta, donkeys and goats from northern Isabela, and donkeys, goats, and pigs from Santiago Island (Galapagos Conservancy n.d.(b)).

As a result of the success of Project Isabela, the Charles Darwin Foundation is planning and implementing several projects in partnership with the Galapagos National Park Service, including eradication of goats and donkeys from Floreana (Charles Darwin Foundation n.d.(c)). In December 2006, the Galapagos National Park started a project with the goal of restoring the ecology of Floreana (Galapagos Conservation Trust News 2007). The first phase of “Project Floreana” was to eradicate some of the introduced animals, such as goats and donkeys, in order to stop the continuing degradation of the vegetation of the island and allow some of the native and endemic plant species to recover (Galapagos Conservation Trust News 2007). From the experience gained during Project Isabela, the program was able to eradicate 98 percent of the donkeys and goats on Floreana in 22 days (Galapagos Conservation Trust News 2007). Due to the removal of these invasive species, it is expected that within the next few years the benefits to the ecosystem on Floreana will be seen (Galapagos Conservation Trust News 2007). This will result in an increase in native flora and fauna, and the repopulation of native flora and fauna in areas previously destroyed on Floreana by herbivore degradation (Galapagos Conservation Trust News 2007).

On Floreana, small populations of Scalesia forest still exist in the highlands, but these areas are under pressure and competition from agriculture and the aggressive Psidium guajava (guava) and Lantana camara (Lawesson 1986, p. 13). Introduced plants outcompete native vegetation, taking sun, water, and nutrients from native species (Smith 2005, p. 304). Agriculture is concentrated at higher elevations because of the rich soil and moisture available in these areas. As a result, escapes by introduced agricultural plants are more frequently found in the humid highland forests (Schofield 1989, p. 233). Schofield found that accidental escape of introduced plant species, as well as the purposeful introduction of these species, has altered the highland habitat where tree-finches occur (1989, pp. 233-235). Christensen and Kleindorfer found that the medium tree-finch frequently forages on introduced fruit species (2008, pp. 383-391). This observation may suggest that the species is able to adapt to and potentially benefit from this change in its environment (Christensen and Kleindorfer 2008, pp. 383-391). These researchers did not observe any species of tree-finch, including the medium tree-finch, nesting in an introduced plant species (Christensen and Kleindorfer 2008, pp. 383-391). However, a further study by O'Connor et al. (2008, p. 17) found that the majority (99 percent) of nests built by medium tree-finches were constructed in native species, Scalesia pedunculata (83 percent), Zanthoxylum fagara (14 percent), and Croton scouleri (2 percent), with 1 percent of the nests built in the introduced species, guava.

Guava: The cultivated guava, with its edible fruits, is the most widespread introduced plant species in the Galapagos Islands (Schofield 1989, p. 233). Guava has been characterized as out of control and invading vast areas of native vegetation in the humid highlands on Floreana (Eckhardt 1972, p. 585; Eliasson 1982, p. 11; Tuoc 1983, p. 25). It is an aggressive introduced plant that covers 8,000 ha (19,768 ac) on Floreana (Parque Nacional Galapagos n.d(a)). The dispersal of guava is aided by introduced cattle, which eat the fruits and then wander from the farm into the National Park and excrete the seeds in their dung (De Vries and Black 1983, p. 19; Tuoc 1983, p. 25). In addition, as cattle graze, they trample other vegetation, providing the open spaces and abundant light needed for the germination of guava seeds (Van der Werff 1979, as cited in Schofield 1989, p. 233). Once guava becomes established in an open habitat, it grows quickly and shades seedlings of native species like Scalesia pedunculata, thus preventing their growth (Parque Nacional Galapagos n.d.(a); Perry 1974, p. 12).

One obvious step to take in order to minimize the further spread of guava is to fence cattle (De Vries and Black, p. 19; Tuoc 1983, p. 25). Although some residents have already done this, herds of free-ranging cattle are unable to be restricted in this manner (Schofield 1989, pp. 233-234). In 1971, a campaign was started to cut down guava trees on Santa Cruz Island (Schofield 1989, p. 234). One report indicated that over 95,000 guava trees had been eliminated between 1980 and 1981 (Tuoc 1983, p. 25). Schofield suggested that this program should be expanded to other islands with large populations of guava ((1989, p. 234).

Other Plant Species: Floreana is also impacted by other introduced plant species. Lantana camara was introduced as an ornamental on Floreana in 1832, and now covers 3,000 ha (7,413 ac) (Parque Nacional Galapagos n.d.(a)). A quickly spreading tropical shrub, that displaces native vegetation, it is now found on Floreana from the arid region up to the Scalesia forest (Hamann 1984, as cited in Schofield 1989, p. 234). Citrus trees (Citrus spp.) have been reported as “common” (Eliasson 1982, p. 11) and have invaded the native vegetation at higher elevations on Floreana (Eliasson 1982, p. 11; Porter 1973, p. 276). Cattle and pigs aide in the further spread of citrus trees (Citrus spp.) by feeding on the fruits and dispersing seeds in new locations (Wittmer 1961, as cited in Schofield 1989, p. 234).

The medium tree-finch is found primarily in the moist highland forests (i.e., the Scalesia zone) on the island of Floreana. Since the island was first settled in 1832, the habitat of the medium tree-finch has been cleared for agriculture and ranching, and further degraded by introduced animals and plants. Herbivores, such as goats, donkeys, cattle, and pigs, destroy the species' habitat by trampling and grazing heavily on native vegetation, including Scalesia pedunculata, the tree primarily used by the medium tree-finch for nesting and foraging. In addition, cattle and pigs help to spread introduced plants, such as guava and citrus trees, by feeding on the fruits and depositing the seeds into native vegetation. Although an eradication program was started in December 2006 to eliminate goats and donkeys from Floreana, we are not aware of any current programs to remove cattle and pigs from the island. As a result, these species will continue to destroy and degrade the habitat of the species. Therefore, we find that the medium tree-finch is at significant risk by the habitat destruction of the moist highland forests of Floreana, as a result of agriculture and introduced species.

We are not aware of any scientific or commercial information that indicates that overutilization of the medium tree-finch for commercial, recreational, scientific, or educational purposes poses a threat to this species. There is no known use by collectors or hunters of this species. A comment received on the proposed rule suggested that tourist visitation to the Scalesia highlands (the preferred habitat of the Medium Tree finch) increased more than tenfold since 2004. The commenter indicated that there has been an increase in the number of bus rides and highland tours. However, no corroborating data was provided with the comment. A UNESCO 2007 report on the Galapagos Islands did indicate that visitation has grown in Galapagos from 40,000 in 1991 to over 120,000 in 2006 (pp. 9-10). This included all Galapagos islands, and the increase mentioned an increase in tourist boats. There was no specific mention of Floreana Island. According to this report, tourism is being monitored at many levels in Ecuador. The unintended negative effects are recognized and are being addressed (UNESCO 2007, Annex 3, pp. 1-3). Although tourism may be increasing on Floreana Island, a review of the best available information does not indicate that tourism is a threat to this species. As a result, we are not considering overutilization a contributing factor to the continued existence of the medium tree-finch.

The discovery of an introduced parasitic fly (Philornis downsi) on Floreana Island has raised significant concerns about the impact this parasite is having on the medium tree-finch (Fessl et al. 2006b, p. 59; Wiedenfeld et al. 2007, p. 17; Dudaniec et al. 2008; O'Connor et al. 2009, p. 853). This parasite was recently added to the IUCN's Global Invasive Species Database (O'Connor et al. pp 864-865). In March 1997, Fessl, Couri, and Tebbich first observed the presence of P. downsi in the nests of Darwin's finches on the Galapagos Islands (Fessl and Tebbich 2002, p. 445). Since then, researchers have found that P. downsi may cause up to 100 percent mortality to exposed nestlings (Dudaniec and Kleindorfer 2006, p. 17). This parasite is believed to be the most significant threat to the medium tree-finch (Causton et al., 2006; p. 125; O'Connor et al. 2009, p. 853).

P. downsi was sampled by the entomologists S.B. and J. Peck and B.J. Sinclair in 1989, although the fly was not formally identified until the collections were examined in detail in 1998 (Fessl et al. 2001, p. 318; Fessl and Tebbich 2002, p. 445). However, it now appears that P. downsi was present in the Galapagos Islands at least 40 years ago. It was recently identified from collections made on Santa Cruz Island in 1964 (Causton et al. 2006, pp. 134, 143). We are not aware of any information indicating when P. downsi may have been introduced to the island of Floreana.

P. downsi is a fly (Muscidae) from a genus of obligate bird parasites (Couri 1985, as cited in Fessl and Tebbich 2002, p. 445; Fessl et al. 2001, p. 317), and depends on a host for its survival. The adult fly is free-living, non-parasitic, and feeds on fruits, flowers, and decaying material (Fessl et al. 2001, p. 317; Fessl et al. 2006b, p. 56). Larvae of P. downsi belong to the group of external blood feeders - first, second, and third instar (developmental stage) larvae are haematophages which suck blood from nestlings at night and then retreat to the bottom of the nest during the day (Dodge and Aitken 1968 and Skidmore 1985, as cited in Fessl et al. 2006b, p. 56). Adult flies lay eggs inside the nasal cavities of newly hatched nestlings (usually one to three days old). These fly eggs then hatch into first instar larvae (Fessl et al. 2006a, p. 744; Muth 2007, as cited in Dudaniec at al. 2008). As the larvae reach their second instar stage, they exit the nasal cavities of nestlings and begin to live as nest-dwelling haematophagous larvae (Fessl et al. 2006a, p. 744). Second and third instar larvae of P. downsi seem to be exclusively external (Fessl et al. 2006b, p. 59), feeding on the blood and tissues of nestlings (Dudaniec and Kleindorfer 2006, pp. 15-16). The majority of larvae reach their third instar stage at the time of host fledging (Dudaniec at al. 2008, p. 5). At this stage, the larvae of P. downsi detach from the nestling and form their pupae at the bottom of the nesting material, remaining for approximately 2 weeks before emerging as adult flies (Dudaniec and Kleindorfer 2006, p. 16; Fessl et al. 2006b, p. 56).

P. downsi occurs in finch nests on Floreana (Wiedenfeld et al. 2007, p. 17), and has been shown to significantly lower fledgling success of the finches (Fessl and Tebbich 2002, pp. 448-450). A number of studies have associated Philornis spp. parasitism with mortality (Fessl and Tebbich 2002, p. 448), and reductions in nestling growth and development (Fessl et al. 2006b, p. 58), and a reduction in hemoglobin levels (Dudaniec et al. 2006, p. 88). In Causton et al.'s proposed ranking system, P. downsi was given the highest invasiveness ranking affecting fauna endemic to the Galapagos Islands, because this insect seriously impacts species of high conservation value in the Galapagos (Causton et al. 2006, pp. 123, 134). The ranking system was based on species' trophic functional role, distribution in Galapagos, and history of invasiveness in areas other than the Galapagos Islands.

In 2002, 97 percent of finch nests were infected with the P. downsi parasite on Santa Cruz Island, both in the lower arid zone and the higher Scalesia zone of the island (Fessl and Tebbich 2002, p. 449). Parasitism by P. downsi caused complete brood loss in approximately 19 percent of the infected finch nests and partial brood loss (defined as the loss of one or two nestlings) in an additional 8 percent of the finch nests studied (Fessl and Tebbich 2002, p. 448). They also found that in parasitized nests, the percentage of successful fledglings differed significantly depending upon brood size: Nests with only one nestling always failed, nests with two nestlings successfully fledged nestlings 50 percent of the time, and nests with three or four nestlings successfully fledged nestlings 75-85 percent of the time (Fessl and Tebbich 2002, p. 448).

In 2006, nesting success in the medium tree-finch was examined for the first time (Fessl et al. 2006a, p. 746). In an experimental study conducted on Santa Cruz Island, researchers found that high mortality of nestlings was directly attributable to parasitism by P. downsi, as evidenced by a near threefold increase in fledgling success in a parasite-reduced group (87 percent) versus a parasite-infested control group (34 percent) (pp. 58-59). They also found that within four days, mass gain was significantly higher (an almost twofold positive difference) in the parasite-reduced group than in the parasite-infested control group (Fessl et al. 2006b, p. 58). In studies of other avian species, fledgling body mass has been found to be a key factor for juvenile survival (Magrath 1991, pp. 343-344; Tinbergen and Boerlijist 1990, pp. 1123-1124). As a result, Fessl et al. (2006b, p. 59) concluded that the results of their study showed that given the significant difference in body mass between the two groups, parasitized nests will likely provide less recruitment into the breeding population. Further, because species with small broods have been found to suffer higher parasite loads and higher nestling mortality (Fessl and Tebbich 2002, pp. 445, 449-450), infestation of P. downsi on species with naturally low clutch sizes, such as the medium tree-finch, is of particular concern (Fessl et al. 2006b, p. 59).

Dudaniec et al. found a significant negative correlation between P. downsi parasite intensity and hemoglobin concentrations (2006, pp. 88, 90, 92). She also found a positive correlation between parasite intensity and immature red blood cell counts in small ground finches studied on Santa Cruz and Floreana Islands. Small ground finch nestlings with higher P. downsi densities suffered from lower hemoglobin concentrations and reduced fledging success (Dudaniec et al. 2006, p. 92). Furthermore, nestlings with lower parasite intensity had higher hemoglobin levels and increased fledging success (Dudaniec et al. 2006, p. 93). The same researchers also found a negative correlation between the number of immature red blood cells and hemoglobin levels in nestlings (2006, p. 92). The fitness impacts to nestlings of lower hemoglobin levels are significant (Dudaniec et al. 2006, p. 93). Other researchers found that 6 of 63 monitored nests produced fledglings (O'Connor et al. 2008, p. 1). The results of another study showed that low hemoglobin levels in nestlings reduce the transport of oxygen to tissues (O'Brien et al. 2001, p. 75).

Thus, fledglings that are anemic (hemoglobin deficient) from parasite feeding may have a reduced ability to sustain flight and consequently a reduced ability to escape predators and find food (O'Brien et al. 2001, p. 75). The high hemoglobin levels found by Dudaniec et al. in mature birds, combined with their observation that adult finches were never found to be actively parasitized, suggests that adult birds are not physiologically affected by P. downsi (2006, p. 92). Fessl et al. reported extremely high levels of blood loss in nestlings (18 to 55 percent) caused by P. downsi larvae ((2006a, p. 745). Daily blood loss over 10 percent is likely to have negative impacts on nestlings, including health problems and developmental deficiencies, while blood loss over 25 percent would become lethal (Kaneko, pers. comm., as cited in Gold and Dahlsten 1983, p. 569).

Another study of tree-finches in the highlands of Floreana showed that the medium tree-finch had the highest P. downsi parasite intensity (an average of 52 parasites per nest), compared to the small and large tree-finches (O'Connor et al. 2009, pp. 853-866). Of 63 active medium tree-finch nests, only 16 nests had nestlings that survived to six days post-hatching, and only 4 nests produced fledglings (O'Connor et al. 2009, pp. 853-866). Most nests failed to produce fledglings: Approximately 68.8 percent (11 of 16) of medium tree-finch nests suffered total brood loss, while 18.8 percent (3 of 16) of nests had partial brood loss (O'Connor et al. 2009, pp. 853-866). P. downsi larvae or pupae were found in 100 percent (16 of 16) of medium tree-finch nests, and all nestlings had P. downsi parasites (O'Connor et al. 2009, pp. 853-866). The majority (54 percent) of nestling mortality in medium tree-finches was due to parasitism by P. downsi (O'Connor et al. 2009, pp. 853-866). All nestlings found dead in nests had large open wounds on their bodies and significant loss of blood or body fluids, all of which are signs of P. downsi parasitism (O'Connor et al. 2009, pp. 853-866). O'Connor et al. discuss the reasons why the P. downsi parasite intensity is high in the medium tree-finch (2009, pp. 853-866). One possible explanation is that the medium tree-finch's preferred breeding habitat is next to an agricultural area, where the close proximity of the agriculture fields (with citrus trees and other fruits) act as a feeding location for the adult flies (O'Connor et al. 2009, pp. 853-866). In addition, moist highlands favor consistent breeding of medium tree-finches, thus providing flies with a dependable supply of nestlings for P. downsi larvae to feed upon (O'Connor et al. 2009, pp. 853-866). Currently, the medium tree-finch has the highest P. downsi parasite intensity of any finch species on Floreana, and the second highest of any finch species studied on the Galapagos Islands (O'Connor et al. 2009, pp. 853-866).

A study by Wiedenfeld et al. (2007) found that there was a significant increase in the number of P. downsi parasites (larvae, pupae, or puparia) per nest at higher altitudes (i.e., in the humid highlands) (pp. 17-18). According to their study, the distribution of P. downsi seems to be related to the amount of humidity and moisture available on the islands (Wiedenfeld et al. 2007, p. 18). Although it appears that the fly does more poorly in dry conditions (either in the lowland, arid zone of islands, or during drought), birds similarly do more poorly in these situations (Wiedenfeld et al. 2007, p. 18). In addition, during years of abundant rainfall when birds breed more successfully, the flies are also likely to be more plentiful and therefore, can cause higher mortality (Wiedenfeld et al. 2007, p. 18).

Researchers believe that finches do not suffer from any type of endemic haematophagous ectoparasite (Fessl et al. 2006b, p. 56). Therefore, medium tree-finches have not developed an adaptive response to this kind of introduced pathogen (Altizer et al. 2003, pp. 593, 594). Because the medium tree-finch is newly parasitized by P. downsi, it may experience significant initial mortality since the host has not yet developed a strong behavioral or immunological defense mechanism against the parasite (Dudaniec and Kleindorfer 2006, pp. 18-19).

As many of the above studies show, finches have a slim chance of reproducing without avoiding effects of P. downsi mortality (Dudaniec and Kleindorfer 2006, p. 18; Wiedenfeld et al. 2007, p. 18). Researchers suggest that the decline and possible local extinction of one of Darwin's finches, the warbler finch (Certhidea fusca), on Floreana by 2004 may have been partially caused by P. downsi although there is no conclusive evidence (Grant et al. 2005 p. 502; Fessl et al. 2006b, p. 59; Dudaniec and Kleindorfer 2006, p. 13).

Although it is better to eliminate invasive species before they are able to genetically adapt to the local environment in which they have colonized (Frankham 2005, p. 385), early eradication often does not occur. A long-term eradication program in conjunction with continuous quarantine and monitoring practices is needed to eradicate P. downsi (Dudaniec et al. 2008).

Programs to eradicate P. downsi from the Galapagos Islands are difficult and costly (Fessl et al. 2006b, p. 59). Fessl et al. (2006b, pp. 57-59) found that a single insecticide treatment of 1 percent pyrethrin solution (done at a nestling age of 4 days) was sufficient to reduce the number of parasites per nest to almost zero. This treatment offers one short-term solution to locally protect single nests of species of high conservation concern (Fessl et al. 2006b, p. 59). However, this treatment is not feasible as a long-term solution for controlling the fly on the Galapagos Islands.

The Charles Darwin Foundation (CDF) has begun an effort to develop biological control approaches for P. downsi (Charles Darwin Foundation n.d.(c)). In 2008, CDF received $58,000 for Phase I of the CDF Priority Project “Control of the parasitic fly P. downsi” (Charles Darwin Foundation 2008b, 2008c). This project studies the biology and life history of P. downsi, aiding in the development of effective, long-term control methods that will not harm other species (Charles Darwin Foundation 2008b). CDF reports that control methods are urgently needed to eliminate the threat of extinction among bird species, such as the medium tree-finch, affected by this parasite (Charles Darwin Foundation 2008b). A recent study reported that sterile insect technique (SIT) may be effective in controlling this parasite (Dudaniec et al., 2010, p. 582); however, it has not been fully tested.

Floreana has a suite of introduced predators including black rats (Rattus rattus) and cats (Felis catus) (O'Connor et al. 2009, pp. 864). These predators feed on eggs, nestlings, and even adult birds (Castro and Phillips 1996, p. 22), and have seriously depleted native populations (Grant et al. 2005, p. 501; Jackson 1985, p. 232).

Rats: Second only to the parasitic fly (Philornis downsi), black rats are one of the worst introduced species to the Galapagos Islands. They destroy bird nests and eggs and consume hatchlings (Charles Darwin Foundation 2008d; Charles Darwin Research Station 2008b). Rats arrived in the Galapagos Islands on ships beginning in the late 1600s, and currently are found on all inhabited islands, including Floreana (Charles Darwin Research Station 2008b). Because rats can easily climb, they have been implicated in the population declines of tree nesting birds such as the mangrove finch (Camarhynchus heliobates) (Charles Darwin Research Station 2008b). The CDF's long term plan is to successfully eradicate introduced rats on all islands, a necessary measure in order to restore the Galapagos Islands and its endemic species (Charles Darwin Research Station 2008b). One of the next steps in accomplishing this goal is to develop the capacity to attempt a rat eradication program on large islands such as Floreana (Charles Darwin Research Station 2008b).

Cats: Cats are highly predatory animals, targeting birds and other native species (Charles Darwin Foundation 2008b; Charles Darwin Research Station 2008c; Smith 2005, p. 304). Cats were introduced to the Galapagos Islands by ships and as domestic pets of settlers (Charles Darwin Research Station 2008c). Both feral and domestic cats prey upon and impact the survival of Darwin's finches, and are a threat to endemic species on Floreana (Charles Darwin Research Station 2008c). In the 19th century, cats may have caused significant declines in the populations of large ground finches, sharp-beaked ground finches, and mockingbirds, pushing them toward extinction on Floreana (Grant et al. 2005, p. 501). All three species mostly forage on the ground and are approachable (Grant et al. 2005, p. 501). However, the more arboreal finches, such as the medium tree-finch, may be less vulnerable to predation by cats, unless their nests are constructed unusually low in the vegetation (Grant et al. 2005, p. 501). The Galapagos National Park Service and the CDF are working to control and eradicate domestic and feral cats on all of the islands (Charles Darwin Research Station 2008c). This plan includes working with communities to gain acceptance and compliance with the sterilization or removal of domestic cats, and the development of an eradication program to eliminate feral cats from natural areas on all populated islands, such as Floreana (Charles Darwin Research Station 2008c).

A study of tree-finches in the highlands of Floreana found that one third of medium tree-finch nests experienced nestling predation in both 2006 and 2008. Egg depredation was observed in 22 percent of the nests (but only in 2008) (O'Connor et al. 2009, pp. 853-866). Predators such as rats feed on agricultural products being grown in the agricultural areas. Because agricultural areas are close to the breeding sites of the medium tree-finch, these areas provide a base for the continued persistence and movement of introduced predators, mainly rodents, into medium tree finch habitat (O'Connor et al. 2009, pp. 853-866).

As stated above, we believe, based on an abundance of research, that Philornis downsi, the introduced parasitic fly, is the most significant threat to the survival of the medium tree-finch (Causton et al., 2006 as cited in O'Connor et al. 2009, p. 854). The larvae feed on finch nestlings, causing mortality, reduced nestling growth, lower fledgling success, and a reduction in hemoglobin levels, which all combine to severely affect the reproductive success of the species. The medium tree-finch has the highest P. downsi parasite intensity of all the finch species found on Floreana, and the second highest rate of parasitism by P. downsi of any finch species studied in the Galapagos Islands. Although a study examining the biology of P. downsi and how to control it began in 2008, a long-term (and wide-spread) control method for the parasitic fly has not yet been developed. As a result, the medium tree-finch and its reproductive success will continue to be negatively impacted by P. downsi. Therefore, we find that parasitism by P. downsi is a significant threat to the continued existence of the medium tree-finch.

Introduced predators on Floreana, such as black rats and cats, feed on eggs and nestlings, causing dramatic reductions in native populations. One study found that 33 percent of medium tree-finch nests experienced nestling predation; and egg depredation was observed in 22 percent of the nests. In an effort to help restore endemic species in the Galapagos Islands, one goal of CDF is to develop programs to eradicate introduced rats and cats on all islands. However, we do not have information to indicate that the eradication program has been completed on Floreana island. Therefore, we find that predation is a threat to the continued existence of the medium tree-finch.

The medium tree-finch is identified as a critically endangered species under Ecuadorian law and Decree No. 3,516-Unified Text of the Secondary Legislation of the Ministry of Environment of 2002 (ECOLEX 2003b). Decree No. 3,516 of 2002 summarizes the legislation governing environmental policy in Ecuador and provides that the country's biodiversity be protected and used primarily in a sustainable manner (ECOLEX 2003b). Appendix 1 of Decree No. 3,516 lists the Ecuadorian fauna and flora that are considered threatened or in danger of extinction. Species are categorized as critically endangered (En peligro critico), endangered (En peligro), or vulnerable. Resolution No. 105-Regulatory control of hunting seasons and wildlife species in the country, and Agreement No. 143-Standards for the control of hunting seasons and licenses for hunting of wildlife, regulate and prohibit commercial and sport hunting of all wild bird species except those specifically identified by the Ministry of the Environment or otherwise permitted (ECOLEX 2000; ECOLEX 2003a). The Ministry of the Environment does not permit commercial or sport hunting of the medium tree-finch because of its status as a critically endangered species (ECOLEX 2003b). However, we do not consider hunting (Factor B) to be a risk to the medium tree-finch since it is not known to have ever been hunted. Although this law does not reduce any threats to the species, hunting is not a threat to the species, so it is not applicable.

The first legislation to specifically protect the Galapagos Islands and its wildlife and plants was enacted in 1934 and further supplemented in 1936, but effective legislation was not passed until 1959, when the Ecuadorian government passed new legislation declaring the islands a National Park (Fitter et al. 2000, p. 216; Jackson 1985, pp. 7, 230; Stewart 2006, p. 164). Ecuador designated 97 percent of the Galapagos land area as the National Park, leaving the remaining 3 percent distributed between the inhabited areas on Santa Cruz, San Cristobal, Isabela, and Floreana Islands (Jackson 1985, p. 230; Schofield 1989, p. 236). National park protection, however, does not mean the area is maintained in a pristine condition. The park land area is divided into various zones signifying the level of human use (Parque Nacional Galapagos n.d(b)). Although Floreana Island includes a large “conservation and restoration” zone, it also includes a significantly sized “farming” zone (Parque Nacional Galapagos n.d.(b)), where agricultural and grazing activities continue to impact the habitat.

In March 1998, the National Congress and the Ecuadorian President enacted the Law of the Special Regimen for the Conservation and Sustainable Development of the Province of the Galapagos, which has given the islands some legislative support to establish regulations related to the transport of introduced species and implement a quarantine and inspection system (Causton et al. 2000, p. 10; Instituto Nacional Galapagos n.d.; Smith 2005, p. 304). As a result, in 1999, the Inspection and Quarantine System for Galapagos (SICGAL) was implemented (Causton et al. 2006, p. 121), with the aim of preventing introduced species from reaching the islands (Causton et al. 2000, p. 10; Charles Darwin Foundation n.d.(d)). Inspectors are stationed at points of entry and exit in the Galapagos Islands and Continental Ecuador, where they check freight and luggage for permitted and prohibited items (Charles Darwin Foundation n.d.(d)). The goal is to rapidly contain and eliminate newly arrived species (detected by SICGAL and early warning monitoring programs) that are considered threats for the Galapagos Islands (Causton et al. 2006, p. 121). However, a scarcity of information on alien insect species currently in the Galapagos Islands prevents officials from knowing whether or not a newly detected insect is in fact a recent introduction (Causton et al. 2006, p. 121). Without the necessary information to make this determination, they cannot afford to spend the time and resources on a rapid response when the “new introduction” is actually a species that already occurs elsewhere in the Galapagos Islands (Causton et al. 2006, p. 121).

The April 2007 World Heritage Centre-IUCN monitoring mission report assessed the state of conservation in the Galapagos Islands. Based on information gathered during their monitoring mission and multiple meetings, they found continuing problems with regulatory mechanisms in the Galapagos Islands (UNESCO World Heritage Centre 2007, pp. 9-10). The UNESCO World Heritage Centre indicated that there is a continuing lack of political will, leadership, and authority and it is a limiting factor in the full application and enforcement of the Special Law for Galapagos. They also reported that there appears to be a general lack of effective enforcement (UNESCO World Heritage Centre 2007, p. 9).

The risk from invasive species is rapidly increasing, while the Agricultural Health Service of Ecuador (SESA) and SICGAL have inadequate staff and capacity to deal with the nature and scale of the problem (UNESCO World Heritage Centre 2007, p. 9). SICGAL estimates that 779 invertebrates [interpreted as 779 individuals] entered the Galapagos Islands via aircraft in 2006 (UNESCO World Heritage Centre 2007, p. 9). In addition, the staff of the Galapagos National Park lack the capacity and facilities for effective law enforcement (UNESCO World Heritage Centre 2007, pp. 9-10).

Previous UNESCO-IUCN Galapagos mission reports (in 2005 and 2006) to the World Heritage Committee have consistently outlined major threats to the long-term conservation of the Galapagos Islands, including the introduction of non-native plant and animal species, and the inability to apply laws (UNESCO World Heritage Centre News 2007b). UNESCO World Heritage Centre reports that despite an excellent legal framework, national government institutions encounter difficulties in ensuring its full application (UNESCO World Heritage Centre News 2007b).

The Galapagos Islands were declared a World Heritage Site (WHS) under the auspices of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1978 (UNESCO World Heritage Centre n.d.(a)), as they were recognized to be “cultural and natural heritage of outstanding universal value that needs to be protected and preserved” (UNESCO World Heritage Centre n.d.(b)). The aim of establishment as a WHS is conservation of the site for future generations (UNESCO World Heritage Centre 2008). However, in June 2007, due to threats to this site posed by introduced invasive species, increasing tourism, and immigration, the World Heritage Committee placed the Galapagos on the “List of World Heritage Sites in Danger.” Placement on this list is intended to increase support for a site's conservation (UNESCO World Heritage Centre News 2007a). In March 2008, the UNESCO World Heritage Centre/United Nations Foundation project for invasive species management provided funding of 2.19 million U.S. dollars (USD) to the Ecuadorian National Environmental Fund's “Galapagos Invasive Species” account to support invasive species control and eradication activities on the islands (UNESCO World Heritage Centre News 2008). In addition, the Ecuador government previously had contributed 1 million USD to this fund (UNESCO World Heritage Centre News 2008), demonstrating the government of Ecuador's commitment to reducing the threat of invasive species to the islands.

Ecuador has developed numerous laws and regulatory mechanisms to manage wildlife in the Galapagos Islands. The medium tree-finch is listed as critically endangered under Ecuadorian law. Ninety-seven percent of the land in the Galapagos Islands is designated as the National Park. Some of this park land on Floreana is identified as a “farming” zone, where agricultural and grazing activities continue to threaten the habitat of the species. Although tourism is a problem generally throughout the Galapagos Islands, it was not found to be a specific threat to this species. Additional regulations have created an inspection and quarantine system in order to prevent the introduction of nonnative species, but are not being effectively enforced. Additionally, this program does little to eradicate species already introduced to the Galapagos Islands. Therefore, we find that the existing regulatory mechanisms currently in place are inadequate for the conservation of this species.

This species exists on a single island with decreasing available habitat. The population is believed to be between 1,000 and 2,499 individuals and decreasing in size. Small, declining populations are vulnerable to demographic stochasticity. In basic terms, demographic stochasticity is defined by chance changes in the population growth rate for the species (Gilpin and Soule 1986, p. 27). Population growth rates are influenced by individual birth and death rates (Gilpin and Soule 1986, p. 27), immigration and emigration rates, and changes in population sex ratios. Natural variation in survival and reproductive success of individuals and chance disequilibrium of sex ratios may act in concert to contribute to demographic stochasticity (Gilpin and Soule 1986, p. 27). Genetic stochasticity is caused by changes in gene frequencies due to genetic drift, and diminished genetic diversity, and effects due to inbreeding (i.e., inbreeding depression) (Lande 1995, p. 786). Inbreeding can have individual or population-level consequences, either by increasing the phenotypic expression (the outward appearance, or observable structure, function, or behavior of a living organism) of recessive, deleterious alleles or by reducing the overall fitness of individuals in the population (Shaffer 1981, p. 131; Charlesworth and Charlesworth 1987, p. 231). Environmental stochasticity is defined as the susceptibility of small, isolated populations of wildlife species to natural levels of environmental variability and related “catastrophic” events (e.g., severe storms, prolonged drought, extreme cold spells, wildfire) (Mangel and Tier 1994, p. 612; Young 1994, pp. 410-412; Dunham et al. 1999, p. 9).

The population size is significant because critically small and declining populations such as that of the medium tree finch face higher extinction risk than large, stable populations. Therefore, this species may be more vulnerable to extinction relative to other species with larger, more stable population sizes facing similar threats. Small, declining populations of wildlife species may be susceptible to demographic and genetic problems (Shaffer 1981, pp. 130-134). These threat factors, which may act in concert, include: Natural variation in survival and reproductive success of individuals, chance disequilibrium of sex ratios, changes in gene frequencies due to genetic drift, diminished genetic diversity and associated effects due to inbreeding (i.e., inbreeding depression), dispersal of just a few individuals, a few clutch failures, a skewed sex ratio in recruited offspring over just one or a few years, and chance mortality of just a few reproductive-age individuals.

Various past and ongoing human activities and their secondary influences continue to impact all of the remaining suitable habitats that may still harbor the medium tree-finch (see Factor A). We expect that any additional loss or degradation of habitats that are used by the medium tree-finch will have disproportionately greater impacts on the species due to the population's small and declining population size.

We expect that the medium tree-finch's increased vulnerability to demographic stochasticity and inbreeding will be operative even in the absence of any human-induced threats or stochastic environmental events, which only act to further exacerbate the species' vulnerability to local extirpations and eventual extinction. Demographic and genetic stochastic forces typically operate synergistically. Initial effects of one threat factor can later exacerbate the effects of other threat factors (Gilpin and Soule 1986, pp. 25-26). For example, any further decrease of the populations will, by definition, result in the further removal of individuals, which will exacerbate the other threats.

Small, declining populations such as the medium tree-finch may also susceptible to natural levels of environmental variability and related “catastrophic” events (e.g., severe storms, prolonged drought, extreme cold spells, wildfire), which we will refer to as environmental stochasticity (Dunham et al. 1999, p. 9; Mangel and Tier 1994, p. 612; Young 1994, pp. 410-412). A single stochastic environmental event can severely reduce existing wildlife populations and, if the affected population is already small and declining, it is likely that demographic stochasticity or inbreeding may become operative, which would place the population in jeopardy (Gilpin and Soule 1986, p. 27; Lande 1995, pp. 787-789).

The small and declining numbers that make up the medium tree-finch's population makes it susceptible to natural environmental variability or chance events. In addition to its declining numbers, the high level of parasitism by P. downsi makes the species more susceptible to genetic and demographic stochasticity. Therefore, we find that demographic stochastic events are an additional threat to the continued existence of the medium tree-finch.

We have carefully assessed the best available scientific and commercial information regarding the past, present, and potential future threats faced by the medium tree-finch. The species is currently at risk throughout all of its range, primarily due to the immediate and ongoing threat of the introduced parasitic fly Philornis downsi. The clearing of native vegetation for agriculture, the destruction and degradation of habitat caused by introduced animals and plants (Factor A); disease and predation, particularly by the parasitic fly (Factor C); inadequate existing regulatory mechanisms (Factor D); and small population size (Factor E) are threats to this species.

Philornis downsi is the most severe threat to the survival of the medium tree-finch (Causton et al. 2006). As shown in numerous studies (Fessl and Tebich 2002, Dudaniec et al. 2006, Fessl et al. 2006b, O'Connor et al. 2009, and Dudaniec et al 2010), the fitness costs of P. downsi parasitism in finches is severe, with high incidences of nestling mortality. This parasite causes lower fledgling success, reduced nestling growth, and a reduction in hemoglobin levels (i.e. anemia) in nestlings. Currently, the medium tree-finch has the highest P. downsi parasite intensity of all the finch species found on Floreana, and the second highest of any finch species studied in the Galapagos Islands (O'Connor et al. 2009, pp. 853-866). These researchers also found P. downsi in 100 percent of medium tree-finch nests, causing parasitism of all nestlings (2009, pp. 853-866). Their study found that only 6.3 percent of active medium tree-finch nests produced fledglings, with the majority (54 percent) of nestling mortality caused by P. downsi parasitism. With severely low reproductive success, the medium tree-finch is likely to provide very little recruitment into the breeding population. Since finches are not known to suffer from a similar type of endemic parasite, it appears that they have not yet developed an adaptive response or defense mechanism against this kind of parasite. Therefore, a long-term control method for P. downsi is needed in order to eliminate this threat to the species.

The medium tree-finch is found only on the island of Floreana; primarily in the moist highland forests (i.e. the Scalesia zone) which currently covers approximately 21 km2 (8 mi2). Because of the significant amounts of moisture and fertile soil available in the highlands, approximately 4 km2 (1.5 mi2) of the highland forests on Floreana have been altered or cleared for agricultural purposes. Although the Galapagos National Park covers 97 percent of the land in the Galapagos Islands, the remaining 3 percent includes a large portion of the moist highlands on inhabited islands, such as Floreana, which allows farming to continue in this area today. Introduced animals, both domestic livestock and feral populations, have magnified the negative effects of clearing large areas of native vegetation for agriculture and ranching. Herbivores destroy the species' habitat on Floreana by trampling and grazing heavily on native vegetation, including Scalesia pedunculata, the tree primarily used by the medium tree-finch for nesting and foraging. Non-native fruit trees, easily spread by cattle and pigs, grow quickly and shade native seedlings of this species' preferred habitat of Scalesia pedunculata.

Even though the Galapagos National Park Service encourages ranchers to fence in their cattle on Floreana, cattle still stray into native vegetation to graze. Other introduced species, such as black rats and cats, predate on the eggs and nestlings of birds. One study (O'Connor et al. 2009) found that 33 percent of medium tree-finch nests experienced nestling predation, while egg depredation was observed in 22 percent of the nests. Because agricultural areas are close to the breeding sites of the medium tree-finch, non-native, introduced predators, mainly rats are able to easily access the habitat of the medium tree-finch. Although an eradication program has been developed on Floreana to eliminate some of the introduced species, such as donkeys and goats, we are not aware of current programs to remove other herbivores or introduced predators from Floreana. Even though the medium tree-finch is listed as a critically endangered species under Ecuadorian law and its range includes the Galapagos National Park, existing regulatory mechanisms are inadequate to protect the habitat of the species and have been ineffective in controlling the primary threat to the medium tree-finch, which is parasitism by Philornis downsi.

The Endangered Species Act defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a threatened species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Based on the immediate and ongoing significant threat to the medium tree-finch throughout its entire range, as described above, we determine that the medium tree-finch is in danger of extinction throughout all of its range. Therefore, on the basis of the best available scientific and commercial information, we have determined the species is in danger of extinction throughout all of its range primarily due to ongoing threats to its habitat (Factor A), predation (Factor C), and inadequacy of regulatory mechanisms (Factor D), and we determine endangered status for the medium tree-finch.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and encourages and results in conservation actions by Federal governments, private agencies and groups, and individuals.

Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is listed as endangered or threatened, and with respect to its critical habitat, if any is being designated. However, given that this species is not native to the United States, no critical habitat is being proposed for designation with this rule.

Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species and to provide assistance for such programs in the form of personnel and the training of personnel.

We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species, and at 17.32 for threatened species. With regard to endangered wildlife, a permit must be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited in this proposed rule is available on the Internet at http://www.regulations.gov or upon request from the Endangered Species Program, U.S. Fish and Wildlife Service (see the FOR FURTHER INFORMATION CONTACT section).

The primary author of this final rule is staff of the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Arlington, VA 22203.