Federal Register Document FAA-2010-0354, Airspace Docket No. 10-AAL-10, published on Monday, December 27, 2010 [75 FR 81110] makes a correction to the boundary description that establishes Class E airspace at Port Clarence CGS Airport, Port Clarence, AK. Subsequent to publication, the FAA's Aeronautical Products office stated that more time was needed to chart the airspace. Therefore, this action will delay the effective date of January 13, 2011, to May 5, 2011, to allow better coordination for the charting of this airspace. An error also was discovered in the regulatory text for a latitudinal coordinate. This action corrects this error.

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. 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. Because this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule 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 1, 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 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Port Clarence CGS Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

Pursuant to the provisions of the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention, codified into U.S. law as the Convention on Cultural Property Implementation Act (Pub. L. 97-446, 19 U.S.C. 2601 et seq. ), the United States entered into a bilateral agreement with Italy on January 19, 2001, concerning the imposition of import restrictions on archeological material originating in Italy and representing the pre-Classical, Classical, and Imperial Roman periods. On January 23, 2001, the former United States Customs Service (now U.S. Customs and Border Protection (CBP)) published T.D. 01-06 in the Federal Register (66 FR 7399), which amended 19 CFR 12.104g(a) to indicate the imposition of these restrictions and included a list designating the types of archaeological material covered by the restrictions.

Import restrictions listed in 19 CFR 12.104g(a) are “effective for no more than five years beginning on the date on which the agreement enters into force with respect to the United States. This period can be extended for additional periods not to exceed five years if it is determined that the factors which justified the initial agreement still pertain and no cause for suspension of the agreement exists” (19 CFR 12.104g(a)). On January 19, 2006, CBP published CBP Dec. 06-01 in the Federal Register (71 FR 3000) which amended 19 CFR 12.104g(a) to reflect the extension for an additional period of 5 years.

By diplomatic note dated December 18, 2009, the Government of Italy requested an extension of the Agreement. On October 28, 2010, after the Department of State proposed to extend the Agreement and reviewed the findings and recommendations of the Cultural Property Advisory Committee, the Assistant Secretary for Educational and Cultural Affairs, United States Department of State, determined that the cultural heritage of Italy continues to be in jeopardy from pillage of archaeological material representing the pre-Classical, Classical, and Imperial Roman periods and made the necessary determinations to extend the import restrictions for an additional five years. Diplomatic notes have been exchanged on January 11, 2011, reflecting the extension of those restrictions for an additional five-year period. In addition to all the previously protected cultural material, import restrictions are also being imposed on a new subcategory of objects (coins). Accordingly, CBP is amending 19 CFR 12.104g(a) to reflect this extension of the import restrictions on the currently protected cultural property and the new subcategory of cultural property.

The Designated List of articles that are protected pursuant to the bilateral agreement, as extended, has been revised and set forth below. We note that, pursuant to 19 U.S.C. 2604, the category entitled “Metal” has been amended to include the subcategory “Coins of Italian Types.” This amendment comes in response to a Diplomatic Note from the Government of Italy requesting the Designated List be amended. Coins constitute an inseparable part of the archaeological record of Italy, and, like other archaeological objects, they are vulnerable to pillage and illicit export.

1. Architectural Elements —In marble, limestone, steatite, basalt, tufa and other types of stone. Types include abacus, acroterion, antefix, architrave, bacino, base, capital, caryatid, coffer, clipeus, column, crowning, fountain, frieze, pediment, drip molding, pilaster, mask, corbel, metope, mosaic and inlay, pluteus, pulvinar, puteal, jamb, tile, telamon, tympanum, trabeation, transenna, basin, wellhead. Approximate date: 7th century B.C. to 4th century A.D.

2. Architectural and Non-architectural Relief Sculpture —In marble and other stone. Types include carved slabs with figural, vegetative, floral, or decorative motifs, sometimes inscribed, and carved relief vases. Used for architectural decoration, funerary, votive, or commemorative monuments. Approximate date: 2nd century B.C. to 4th century A.D.

3. Monuments —In marble, limestone, and other types of stone. Types include altar and shrine, cippus, funerary stele, and milestones with figural reliefs or decorative moldings. Some have dedicatory inscriptions. Approximate date: 7th century B.C. to 4th century A.D.

4. Sepulchers —In marble, peperino, alabaster, limestone, and tufa. Types of burial containers including urns, caskets, and sarcophagi. Some have figural scenes carved in relief or decorative moldings. Approximate date: 7th century B.C. to 4th century A.D.

5. Large Statuary —Primarily in marble, including fragments of statues. Subject matter includes human and animal figures and groups of figures in the round. Common types are large-scale, free-standing statuary from approximately 1 m to 2.5 m in height and life-size busts (head and shoulders of an individual). Approximate date: 6th century B.C. to 4th century A.D.

1. Large Statuary —Large-scale statues or fragments of statues in bronze or other metals including animal figures, human and divine figures, and life-size metal busts or portrait heads. Approximate date: 6th century B.C. to 4th century A.D.

2. Small Statuary —Iron Age Sardinian (Nuragic) and Etruscan figurines in bronze and other metals. Approximate date: 8th to 3rd century B.C.

B. Vessels —Open and closed vessels in bronze, gold, or silver, often with incised, embossed, and molded decoration in the shape of human or animal figures. Shapes include bowls, buckets, craters, pitchers, cups, and lamps, etc. Approximate date: 8th century B.C. to 4th century A.D.

C. Personal Ornaments —Etruscan and Italic rings, necklaces, earrings, crowns, bracelets, buckles, belts, pins, chains of gold, silver, bronze, and iron. Approximate date: 8th to 3rd century B.C.

D. Weapons and Armor —Body armor, including helmets, cuirasses, shin guards, and shields, and horse armor often decorated with elaborate engraved, embossed, or perforated designs. Both launching weapons (spears and javelins) and weapons for hand to hand combat (swords, daggers, etc.). Approximate date: 8th century B.C. to 4th century A.D.

E. Inscribed or Decorated Sheet Metal —Engraved inscriptions often found in funerary contexts and thin metal sheets with engraved or impressed designs often used as attachments to furniture. Approximate date: 7th century B.C. to 4th century A.D.

F. Coins of Italian Types —A type catalogue of listed currency and coins can be found in N.K. Rutter et al. (eds.), Historia Numorum: Italy (London, 2001). Others appear in G.F. Hill Coins of Ancient Sicily (Westminster, 1903).

1. Lumps of bronze ( Aes Rude )—Irregular lumps of bronze used as an early medium of exchange in Italy from the 9th century B.C.

2. Bronze bars ( Ramo Secco and Aes Signatum )—Cast bronze bars (whole or cut) used as a media of exchange in central Italy and Etruria from the 5th century B.C.

3. Cast coins ( Aes Grave )—Cast bronze coins of Rome, Etruscan, and Italian cities from the 4th century B.C.

4. Struck coins —Struck coins of the Roman Republic and Etruscan cities produced in gold, silver, and bronze from the 3rd century B.C. to c. 211 B.C., including the “Romano-Campanian” coinage.

5. Struck colonial coinage —Struck bronze coins of Roman republican and early imperial colonies and municipia in Italy, Sicily, and Sardinia from the 3rd century B.C. to c. A.D. 37.

6. Coins of the Greek cities —Coins of the Greek cities in the southern Italian peninsula and in Sicily (Magna Graecia), cast or struck in gold, silver, and bronze, from the late 6th century B.C. to c. 200 B.C.

1. Architectural Elements —Baked clay (terracotta) elements used to decorate buildings. These are most often found in Etruria, Latium, Sicily, and Magna Graecia. Elements include acroteria, antefixes, relief plaques, metopes, and revetments. Approximate date: 7th to 1st century B.C.

2. Monuments —Altars and urns decorated with relief scenes. Approximate date: 5th century B.C. to 4th century A.D.

3. Large Statuary —Large-scale human and animal figures, life-size portrait heads, and life-size votive objects, including fragments of statues. These are often found in temples and sanctuaries in Magna Graecia, Etruria, and Latium. Approximate date: 7th to 1st century B.C.

4. Objects with Relief Decoration —Plaques, tables, and other terracotta objects (masks) with relief decoration. Approximate date: 6th to 4th century B.C.

a. Etruscan —Decorated ceramic vessels produced by Etruscan culture, including Villanovan; Orientalizing pottery with imitations of Near Eastern designs painted on local hand-made vessels; archaic Etruscan painted pottery with polychrome decoration; funerary and cinerary vessels; Italo-Geometric pottery where production from local Etruscan workshops imitated Greek Geometric; bucchero made with a characteristic soft black paste and polished surface whose highly decorative shapes often imitate metal vessels; local imitations of black and red figure Attic; Etruscan imitations of Corinthian pottery; pottery with black glaze and orange stripes that imitates Ionic pottery; amphora in the Pontic style with painted figural decoration made by a single workshop of immigrant Ionic potters in Vulci, Etruria; Caeretan hydria attributed to a workshop of Greek immigrants working near Caere, Etruria. Approximate date: 9th to 3rd century B.C.

b. South Italian and Italic —Decorated vessels locally produced, including hand-made Daunian pottery from northern Apulia; Italiote red figure pottery of Attic derivation produced in Apulian, Lucania, Campania, and Paestum; wheel-made pottery with elaborate applied relief and painted decoration made in Centuripe, Catania; pottery with plastic and polychrome (multicolor) decoration produced in Sicily and Magna Graecia; gilded pottery with a characteristic ochre yellow color imitating artifacts in bronze, mainly found in tombs in Apulia; Faliscan pottery in imitation of Attic red figure, often in oversize vessels; Gnathian pottery, named after Egnatia in Apulia and decorated in white and yellow with touches of red over a black background; overpainted pottery with a shiny black glaze; pottery overpainted with white, yellow, or red designs in imitation of Attic red figure; Messapian pottery, locally produced in Apulia and decorated with monochrome (one color) or bichrome painting (two color). Approximate date: 8th to 3rd century B.C.

a. Attic Black Figure, Red Figure and White Ground Pottery —These are made in a specific set of shapes (amphorae, craters, hydriae, oinochoi, kylikes) decorated with black painted figures on a clear clay ground (Black Figure), decorative elements in reserve with background fired black (Red Figure), and multi-colored figures painted on a white ground (White Ground). Attic pottery was widely exported, particularly to southern Italy, where it is commonly found in burials. Approximate date: 6th to 4th century B.C.

b. Corinthian Pottery —Painted pottery made in Corinth in a specific range of shapes for perfume and unguents and for drinking or pouring liquids. The very characteristic painted and incised designs depict figural scenes, rows of animals, and floral decoration. Corinthian pottery was exported throughout the Mediterranean, but particularly to Etruria and southern Italy. Approximate date: 8th to 6th century B.C.

A. Architectural Elements —Mosaics and glass windows. Approximate date: 4th century B.C. to 4th century A.D.

1. Intarsia —Cut or carved glass decorative elements to inset in furniture. Approximate date: 2nd century B.C. to 4th century A.D.

2. Small Statuary —Glass animal statuettes as amulets or knickknacks. Approximate date: 2nd century B.C. to 4th century A.D.

1. Domestic and Public Wall Painting —Beginning in about 200 B.C. wall painting in private and public buildings is characterized by imitation of stucco or marble design. Later developments include “architectural” style, “ornamental” style, and “fantastic” style. Triumphal painting in temples and public buildings illustrate military campaigns and conquered lands. Approximate date: 3rd century B.C. to 4th century A.D.

2. Tomb Paintings —Early tomb paintings are primarily found in Etruria and Southern Italy. These paintings were directly influenced by Greek painters, but illustrate local style. Scenes often illustrate funerary celebrations, rites, symbols, and daily events. Roman funerary painting is also inspired by Greek painting, but also develops from domestic and public types of wall painting. Approximate date: 6th century B.C. to 4th century A.D.

The Designated List and accompanying image database may also be found at the following Internet Web site address: http://exchanges.state.gov/heritage/culprop/itimage.html. The restrictions on the importation of the above-listed archaeological materials originating in Italy are to continue in effect until January 19, 2016. Importation of such material continues to be restricted unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure (5 U.S.C. 553(a)(1)). In addition, CBP has determined that such notice or public procedure would be impracticable and contrary to the public interest because the action being taken is essential to avoid interruption of the application of the existing import restrictions (5 U.S.C. 553(b)(B)). For the same reasons, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

Because this rule involves a foreign affairs function of the United States, it is not subject to Executive Order 12866.

This regulation is being issued in accordance with 19 CFR 0.1(a)(1).

The Coast Guard will enforce the Blair Waterway security zone in Commencement Bay, WA for protection of military cargo in 33 CFR 165.1321 from 12:01 a.m. on January 6, 2011, through 11:59 p.m. on January 29, 2011. A discussion of these regulations can be found in the preamble of a final rule published December 10, 2004 (69 FR 71709).

Under the provisions of 33 CFR 165.1321, vessel operators may not enter the following security zone described in § 165.1321(c)(1): All waters enclosed by a line connecting the following points: 47°16′57″ N, 122°24′39″ W, which is approximately the beginning of Pier No. 23 (also known as the Army pier); then northwesterly to 47°17′05″ N, 122°24′52″ W, which is the end of the Pier No. 23 (Army pier); then southwesterly to 47°16′42″ N, 122°25′18″ W, which is the approximate location of a private buoy on the end of the sewage outfall; then southeasterly to 47°16′33″ N, 122°25′04″ W, which is approximately the northwestern end of Pier No. 5; then northeasterly to the northwestern end of Pier No. 1; then southeasterly along the shoreline of the Blair Waterway to the Blair Waterway turning basin; then along the shoreline around the Blair Waterway turning basin; then northwesterly along the shoreline of the Blair Waterway to the Commencement Bay Directional Light (light list number 17159); then northeasterly along the shoreline to the point of origin. [Datum: NAD 1983].

All vessel operators must obtain permission from the COTP or Designated Representative to enter, move within, or exit the security zone during periods of enforcement. To obtain permission to transit the zone vessel operators can contact the on-scene patrol craft on VHF Channel 16/13 or VST Puget Sound on VHF Channel 14. Operators of vessels 20 meters or greater in length should seek permission from the COTP or a Designated Representative at least 4 hours in advance. Operators of vessels less than 20 meters in length should seek permission at least 1 hour in advance.

Any Coast Guard commissioned, warrant or petty officer may enforce the rules of this section. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation. Vessels and persons granted permission to enter the security zone shall obey all lawful orders or directions of the Captain of the Port or Designated Representative. All vessels shall be operated at a minimum speed necessary to maintain a safe course.

This notice is issued under authority of 33 CFR 165.1321 and 5 U.S.C. 552(a).

If the COTP determines that the regulated area need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to temporarily grant general permission to enter this zone during breaks between loading and off-loading operations.

Upon notice of temporary periods of suspension of enforcement by the Captain of the Port Puget Sound, all persons and vessels are authorized to enter, transit, and exit this security zone until the zone is reestablished and subject to enforcement.

Section 8104 of the FCEA authorizes the Secretary of Agriculture to ensure access to National Forest System lands, to the maximum extent practicable, by Indians and Indian tribes for traditional and cultural purposes, in recognition of the historic use of National Forest System lands by Indians and Indian tribes. Section 8102 of the FCEA defines “Indian tribe” as any Indian or Alaska Native tribe, band, nation, pueblo, village, or other community that is included in a list published by the Secretary of the Interior under section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1). Section 8102 of the FCEA states that “traditional and cultural purposes” with respect to a definable use, area, or practice means that the use, area, or practice is identified by an Indian tribe as traditional and cultural because of its long-established significance or ceremonial nature of the use, area, or practice to the Indian tribe.

Forest Service regulations at 36 CFR part 261, subpart B, establish prohibitions relating to acts or omissions involving National Forest System lands. To implement section 8104 of the FCEA verbatim, the Forest Service is adding a paragraph to 36 CFR 261.53 regarding special closures to provide for closure of National Forest System lands to protect the privacy of tribal activities for traditional and cultural purposes. To implement section 8102 of the FCEA verbatim, the Forest Service is adding a definition for “Indian tribe” as “any Indian or Alaska Native tribe, band, nation, pueblo, village, or other community that is included in a list published by the Secretary of the Interior under section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1)” and a definition for “traditional and cultural purpose” that states that it means, with respect to a definable use, area, or practice, that it is identified by an Indian tribe as traditional and cultural because of its long-established significance or ceremonial nature for the Indian tribe.

The Administrative Procedure Act (APA) exempts certain rulemaking from its public notice and comment requirements, including rulemaking involving “public property” (5 U.S.C. 553(a)(2)), such as federal lands managed by the Forest Service. Furthermore, the APA allows agencies to promulgate rules without public notice and comment when an agency for good cause finds that public notice and comment are “impracticable, unnecessary, or contrary to the public interest” (5 U.S.C. 553(b)(B)).

In 1971, Secretary of Agriculture Hardin announced a voluntary waiver of the public property exemption from public notice and comment rulemaking under the APA (July 24, 1971; 36 FR 13804). Thus, agencies in the U.S. Department of Agriculture (USDA) generally provide public notice and comment in promulgating rules. However, the Hardin policy permits USDA agencies to promulgate final rules without public notice and comment when the agencies find for good cause that notice and comment procedures would be impracticable, unnecessary, or contrary to the public interest, consistent with 5 U.S.C. 553(b)(B). The courts have recognized this good cause exception to the Hardin policy and have indicated that since the public notice and comment requirement was adopted voluntarily, the Secretary should be afforded “more latitude” in making a good cause determination. See Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir. 1984).

The Department finds that good cause exists to exempt this rulemaking from public notice and comment pursuant to 5 U.S.C. 553(b)(B). Section 8104 of the FCEA allows the Secretary to “temporarily close from public access specifically identified National Forest System land to protect the privacy of tribal activities for traditional and cultural purposes.” This rulemaking prohibits public access into or upon an area which is closed to protect the privacy of tribal activities for traditional and cultural purposes. Thus, the prohibition against public access to closed areas under 36 CFR 261.53 merely implements the provision for closure from public access set forth in section 8104 of the FCEA. Such a prohibition against access to closed areas is dictated by section 8104 of the FCEA; the agency has no discretion in implementing these changes. Moreover, the new provisions conform precisely to the newly enacted statute and the corresponding definitions in the statute. Accordingly, because this rulemaking involves purely minor, technical, and nondiscretionary changes, the Department finds that public notice and comment are unnecessary pursuant to 5 U.S.C. 553(b)(B).

This final rule makes purely minor, technical changes to the Forest Service's regulations. Forest Service regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish Servicewide administrative procedures, program processes, or instructions.” The Department's conclusion is that this final rule falls within this category of actions and that no extraordinary circumstances exist that would require preparation of an environmental assessment or environmental impact statement.

This final rule has been reviewed under USDA procedures and Executive Order (E.O.) 12866 on regulatory planning and review. It has been determined that this is not a significant rule. This final rule will not have an annual effect of $100 million or more on the economy, nor will it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This final rule will not interfere with an action taken or planned by another agency, nor will it raise new legal or policy issues. Finally, this final rule will not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, this final rule is not subject to Office of Management and Budget (OMB) review under E.O. 12866.

The Department has considered this final rule in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq. ). The final rule makes purely minor, technical changes to the Forest Service's regulations. This final rule will not have a significant economic impact on a substantial number of small entities as defined by the act because the final rule will not impose recordkeeping requirements on them; it will not affect their competitive position in relation to large entities; and it will not affect their cash flow, liquidity, or ability to remain in the market.

The Department has analyzed this final rule in accordance with the principles and criteria contained in E.O. 12630. The Department has determined that the final rule will not pose the risk of a taking of private property.

The Department has reviewed this final rule under E.O. 12988 on civil justice reform. After adoption of this final rule, (1) All State and local laws and regulations that conflict with this rule or that impede its full implementation will be preempted; (2) no retroactive effect will be given to this final rule; and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.

The Department has considered this final rule under the requirements of E.O. 13132 on federalism and has determined that the final rule conforms with the federalism principles set out in this E.O.; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the Department has determined that no further assessment of federalism implications is necessary.

Moreover, the Department has determined that promulgation of this final rule does not require advance consultation with Indian tribal officials as set forth in E.O. 13175, Consultation and Coordination With Indian Tribal Governments. Section 5(b) of E.O. 13175 requires that, to the extent practicable and permitted by law, agencies shall consult with tribal officials in the promulgation of “any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute.” This rulemaking merely implements verbatim two existing statutory provisions, sections 8102 and 8104 of the FCEA, and involves only minor, purely technical, and nondiscretionary regulatory changes. Moreover, these regulatory changes do not impose substantial direct compliance costs on Indian tribal governments. Accordingly, the Department has determined that advance consultation with Tribes is not required for this rulemaking. In the future if the Department publishes additional directives or guidance on how to implement this regulation in the Forest Service Manual or Forest Service Handbook, the Department will consult with Tribes prior to its publication. At this time, the Department does not intend to publish additional guidance on how to implement this regulation.

The Department has reviewed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Department has determined that this final rule does not constitute a significant energy action as defined in the E.O.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Department has assessed the effects of this final rule on State, local, and Tribal governments and the private sector. This final rule will not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

This final rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

In a final rule with request for comments published in the Federal Register on February 8, 2010, (75 FR 6098), we revised 38 CFR part 74 setting forth a mechanism for verifying ownership and control of veteran-owned small businesses (VOSBs), including service-disabled veteran-owned small businesses (SDVOSBs). We solicited comments on the following new interim final requirements: Requiring eligible owners work full-time in the business for which they have applied for acceptance in the VOSB or SDVOSB Verification Program, changing the time period for issuance of reconsideration decisions from 30 to 60 days, and changing the distribution of profits for limited liability companies and employee stock ownership plans. We provided a 30-day comment period which ended on March 10, 2010. We received more than 100 comments on the interim final requirements. The issues raised in the comments are discussed below. Based upon the rationale set forth in this document, we are rescinding the interim final provisions that require owners to work full-time in the business for which they have applied for acceptance in the Verification Program and which limit participants to a single business. We are also formally changing the time period for issuance of reconsideration decisions from 30 to 60 days and changing the distribution of profits for limited liability companies (LLC) and employee stock ownership plans (ESOP).

Comments were solicited on the following aspects of the rule:

We received several comments on the additional requirement that an eligible individual's ability to share in the profits of a concern should be commensurate with the extent of his/her ownership interest in that concern and on the revised requirement for the evaluation of profits and distributions to determine ownership interest in ESOPs and LLCs. We are making a minor clarifying edit in § 74.3(d)(1) to change the word “concern” to “or participant” resulting in “applicant or participant” to be consistent with prior terminology in § 74.3.

1. Numerous commenters suggested adding text to state that the VOSB venture of any VOSB joint venture must receive 51 percent of the profits of the joint venture. We agree with this suggestion and have modified the rule accordingly. This change aligns VA's rule with the provisions of 13 CFR part 125 which governs, in part, the profit requirements of joint ventures in the government-wide SDVOSB program. The subparagraphs have been renumbered and this text, “[a]t least 51 percent of the net profits earned by a joint venture in which the applicant or participant is the lead concern,” is added to § 74.3(d)(2).

2. Numerous commenters strongly recommended deleting 38 CFR 74.3(d)(4) stating that the subsection was “badly drafted” and “meaningless.” We disagree and no changes will be made based on these comments. This text reads “[a]n eligible individual's ability to share in the profits of the concern should be commensurate with the extent of his/her ownership interest in that concern.” VA maintains that real evidence of ownership is demonstrated where the owner has the right to receive a share of profits equivalent to his/her ownership interest in the concern; otherwise, that ownership interest lacks materiality. For example, if an owner had a 51 percent ownership interest but was only entitled to 1 percent of the profits, the owner's ownership interest is rendered meaningless. However, in the renumbered text, this language appears in § 74.3(d)(5).

3. One commenter opposed the text that “[a]n eligible individual's ability to share in the profits of the concern should be commensurate with the extent of his/her ownership interest in that concern,” saying it is not envisioned by the law and the requirement that the owner be the highest compensated creates an unfair management burden in recruiting the best talent. We will not make any changes based upon this comment. The commenter's concerns are unfounded because this text deals solely with the issue of ownership of the concern and the rule already allows for exceptions to the requirement that the owner be the highest compensated employee. Currently, § 74.4(g)(3) establishes that “[t]he highest ranking officer may elect to take a lower salary than a non-veteran only upon demonstrating that it helps the applicant or participant.” Therefore, if taking a lower salary is necessary for maintaining competitiveness, the owner can do so without risking verified status.

4. One commenter replied “[t]his is a welcome change for veteran-owned ESOP's. However, the language appears to exclude 100 percent veteran-owned ESOP's; i.e., there must be some quantity of `outstanding' non-ESOP stock that is owned by veterans. What if veterans owned only their portion of the ESOP stock? Could the business qualify as VOSB or SDVOSB in that event?” We will not make any changes based upon this comment because § 74.3(a) addresses this matter. If 100 percent of the stock is veteran-owned in an ESOP, then there is no issue, as the business is still owned by a veteran.

VA received several comments concerning the single business and full-time control requirements. A few commenters opposed the requirement to have a single business participating in the program at one time, with the exception of joint-ventures. Commenters also opposed the requirement for the eligible owner to work full-time in the business. We agree and have reinstated the text of the Interim Final Rule published in the Federal Register on May 19, 2008 (73 FR 29024), that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business” with the addition of a requirement for an owner to submit a written statement demonstrating that outside employment activities will not have a significant impact on the owner's ability to manage and control the applicant concern. We include an exception for applications from joint-ventures from this written statement requirement because joint ventures as defined by 38 CFR 74.1 are business entities created for single, specific business ventures for joint profit and not created for conducting business on a permanent basis. Accordingly, the regulation permits a veteran to maintain its primary business operation for general business and still create a joint venture for a specific project without losing its veteran-owned small business status. Therefore, in these circumstances, VA acknowledges that the veteran owner can have its regular business operation and a joint venture without affecting its ability to manage both at the same time. To maintain the requirement that owners must work full-time in the business ignores some factors that greatly affect today's business climate and put an unnecessary burden on certain business owners who need to spread their time between several different projects or occupations. The additional requirement of a written statement demonstrating that the outside employment activities will not have a significant impact on the owner's ability to manage and control the applicant concern will allow VA to ensure that the business seeking verification is still truly under the control of the veteran owner. In addition, VA has deleted the definition of “full-time” from § 74.1.

1. Numerous commenters opposed the text that “an eligible owner may only have one business participating in the Verification Program at one time” because they interpreted it as limiting joint ventures. One commenter explained that such arrangements are “necessary due to the tight economy, procurement changes and lower government spending.” Several commenters supported a clarification for the regulation to state that eligible owners of businesses enrolled in the Verification Program may also have additional joint venture agreements that participate in the program. We will not make any changes based upon these comments because the current rule already permits joint ventures in addition to a participant's primary business.

2. Numerous commenters opposed participation by a single business as more stringent than and inconsistent with other Federal small business programs. An additional commenter noted that the text limiting eligible owners to only one business in the Verification Program “appears to run contrary to White House policy statements in support of small business” and “would stifle job creation and economic development.” We agree that restriction of only one business participant may have the unintended effect suggested by the commenters. Accordingly, the rule has been modified to allow more than one VOSB participant so long as the veteran can demonstrate the requisite requirements of ownership and control.

3. Numerous commenters expressed that limiting eligibility to a single business is harmful to start-up businesses. We agree with the commenters. The rule has been modified to return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.” This will allow owners of start up businesses to maintain previous businesses while the new venture solidifies itself in the business world.

4. Numerous commenters noted that for tax and other considerations establishing multiple businesses is beneficial. Other commenters noted that many businesses set up separate entities to manage liability by spreading risk among other businesses. The commenters requested the rule be changed to reflect this. We agree with the commenters' suggestions, and the rule has been modified to return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.” This will allow owners to maintain multiple businesses in the database and eliminate any unnecessary burdens on these owners with regard to taxes, liability and other similar considerations.

5. Numerous commenters observed that the text limiting participants in the Verification Program to one business has no foundation in law and that there is no compelling reason to limit participation to a single concern. The rule has been modified to return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.” The original text does not include the limitation to one business participant. Our concern in proposing to limit participants to one business in the Verification Program was for the integrity of the program as it was viewed as difficult for an owner to comply with the control requirements of § 74.4 if the veteran had multiple businesses. However, we realize that this restriction would have unintended effects and may be harmful to start-up businesses where the veteran may need to control an ongoing concern while creating and growing a start-up concern.

6. Numerous commenters noted that single business participation restricts business growth and limits participation in global markets. We agree with these commenters. The rule has been modified to return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.” This eliminates the single business restriction and allows more flexibility for the owners to continue to grow their business and participate in the global marketplace.

7. Several commenters expressed that the single business restriction is discriminatory in that it is based on the belief that a veteran lacks the capability and intelligence to manage more than one business at a time. We disagree with this comment as the proposed rule was not based on this belief. Due to other comments, however, the rule has been modified to return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.” This addresses the concern of the commenter by allowing for veteran owners to maintain more than one business in the Verification Program. Our intention was not to criticize the management capabilities of veterans. In processing verification applications, we have observed that it has been difficult for an applicant to demonstrate how it can control, as addressed in § 74.4, two or more businesses at the same time. However, we find that it was unfair, not discriminatory, to preclude every applicant from attempting to demonstrate that it can control more than one business.

8. One commenter suggested that the text be revised to require that “an eligible owner have no more than two businesses in the program at one time and must work full-time in the businesses.” This comment is not accepted as, based upon the majority of comments received, the rule has been revised to eliminate the single business requirement and return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

9. One commenter expressed no opposition to the single business requirement, stating a belief that there is widespread abuse in the set-aside program. This commenter suggested that the wording is not specific to oversight agency responsibilities for enforcement. We disagree with this comment. VA has the responsibility for verifying the applicants in accordance with this rule. The rule will require that applicants submitting more than one business for verification must submit a written statement demonstrating that the outside employment activities will not have a significant impact on the owner's ability to manage and control the applicant concern. This will assist VA in ensuring that applicants fully comply with the control requirements of § 74.4 and avoid abuse and fraud in the set-aside program referenced by the commenter.

10. One commenter proposed that all veteran-owned businesses be eligible for the VOSB Verification Program. We disagree with this comment as the statute which governs the verification process is specific to the Department of Veterans Affairs and to veteran-owned small businesses, not all veteran-owned business, which would include large veteran-owned businesses not covered by the statute.

11. One commenter offered alternative language, “With the exception of joint-venture agreements, an eligible owner may have only one business participating in the Veterans First Contracting Program at one time and must work full-time in the business as defined in 38 CFR Part 74.1.” We disagree with this comment, as it could be misconstrued to restrict an owner from performing work under more than one set-aside award at a single time. In addition, the single business requirement has been deleted and VA has returned to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

12. Several commenters suggested that the rule be revised to acknowledge that owners may operate from multiple locations using electronic tools to effectively control remote operations and other businesses. We agree with this comment. The single business and full-time requirements were overly restrictive as they failed to take into account the ability of certain veteran owners in certain situations using modern, electronic tools, to effectively run one or multiple businesses without dedicating the amount of time prescribed by the full-time requirement. The rule has been revised to eliminate the single business and full-time requirements and return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

13. One commenter stated that certain professions require teaming, expressing the opinion that the rule prohibits such arrangements. We disagree with this comment. The current rule already permits joint ventures in addition to a participant's primary business.

14. One commenter noted that some state programs use the Verification Program and that limiting joint-ventures would be harmful to owners in those programs. We disagree with this comment, as § 74.4(c)(1) permits participants to enter into joint-venture agreements.

15. A few commenters opposed the single business requirement but suggested that additional businesses must be in different business lines (industries). We do not agree with this comment. The single business requirement has been removed and the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business” has been restored. The single business requirement placed an unfair burden on veteran owners by restricting them to just one business. VA will consider the merits of each application on an individual basis without regard for the industry in which a veteran's other business may be.

16. One commenter opposed the single business requirement but suggested that additional businesses “must be in the same or closely related industries.” Another commenter suggested that multiple businesses in the same or similar industry should be considered a single entity, and cited the SBA 8(a) program as precedent. That program does not allow an owner to have more than one business in the same or similar industry. We disagree with this comment. The single business requirement placed an unfair burden on veteran owners by restricting them to just one business. Similarly, it would be an undue burden to limit these owners to just one industry. VA will consider the merits of each application, on an individual basis, without regard for the industry in which a veteran's other business is involved. The single business requirement has been removed and the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business” has been added back into § 74.4(c)(1) to allow applicants to potentially have more than a single business in the Verification Program.

17. Some commenters opposed the single business requirement saying that “[t]here is nothing illegal about owning more than one company” and “many successful owners have more than one business at a time.” We agree with these commenters. The requirement put an unnecessary burden on veteran small business owners by restricting them to just one business. The rule has been modified to eliminate the single business requirement and returned to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

18. Some commenters expressed the opinion that the single business requirement would stifle entrepreneurship at a time when we need to create jobs and the concept is “contrary to the American spirit and established precedent that owners sometimes need to start multiple businesses before one is successful.” We agree with these commenters. The single business requirement was removed because it was determined that it created an unnecessary burden on veteran-owned small businesses. The rule has been modified to eliminate the single business requirement and return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

19. One commenter noted that the restriction is contrary to mentorship of new businesses and suggested that established owners join start-ups to offer support, funding and other assistance to the new owner(s). We agree with this comment. The single business requirement placed an undue burden on veteran owners by limiting their ability to participate in other businesses for purposes such as mentoring. Therefore, the rule has been modified to eliminate the single business requirement and return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

20. Several commenters stated that if a veteran owns a small business and then organizes a joint venture, the veteran violates the second business rule. We disagree with these comments. The regulation provides that business owners can still form joint-ventures without violating the rule. In addition, the single business requirement has been removed. Therefore, no further change is necessary to address these commenters' concerns.

21. Several commenters noted that there should be no restrictions on the number of businesses a veteran can own as the drafted regulation does nothing to ensure the viability of VOSBs or SDVOSBs or curtail fraudulent VOSBs or SDVOSBs. We agree with these comments. The single business requirement put an undue burden on veteran business owners and did not serve to eliminate potential fraud within the program. Therefore, the requirement was removed and the section of regulation was restored to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

22. A few commenters questioned what will happen to business owners who already have 2 or more VOSBs or SDVOSBs approved. They asked whether those businesses would be grandfathered into existing ownership. The single business requirement has been removed, and therefore, the concerns expressed by these commenters have been rendered moot.

23. Numerous commenters suggested returning to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.” We agree with the commenters' suggestions. The full-time requirement placed an undue burden on veteran owners. We believe that a veteran owner can still maintain control and ownership of a business without meeting the full-time requirement. Therefore, the requirement has been removed and the rule has been modified to return to that original text.

24. One commenter stated that the text assigns no value to the concepts of chain of command or span of control. We agree with the commenter. The full-time requirement did not take into account the fact that some business owners are forced to delegate in order to keep up with other commitments and burdens. The rule has been modified to return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business” in order to alleviate the commenter's concerns.

25. One respondent suggested that the rule acknowledge that new owners work multiple jobs to support their families and thus should recognize that full-time requirement is restrictive. The respondent suggested replacement text to read “an eligible owner may only have one business participating in the Verification Program at one time and must devote sufficient time to the business to maintain control as defined in § 74.1.” We agree with this comment, but it has been rendered moot as the rule has been revised to eliminate the full-time requirement and return to the original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

26. One commenter noted that IRS regulations precluded limited liability company members from being employees in their firm, and therefore, VA would have no way of verifying their working hours. This problem has been alleviated because the full-time requirement has been removed and the rule has been restored to its original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

27. One commenter stated that the full-time requirement does not take into account other work shifts performed by a veteran and recommended rewording to “[f]ull-time means working no less than 40 hours per week involved in the Day to Day management and/or Operations of the Business.” Several other commenters noted that small business owners do not have normal business hours and recommended the term “normal business hours for the industry.” The recommended rewording will not be necessary as the full-time requirement, as well as the stated definition of “full-time” has been removed and the rule has been restored to its original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.”

28. One commenter offered that he “strongly support(s) the government's efforts to ensure: (1) That veteran-owned small businesses are actually owned by veterans, and; (2) that the veteran owner must be actively involved in day-to-day operation of the firm.” By removing the full-time requirement, but adding the additional requirement of a written statement demonstrating that the outside employment activities will not have a significant impact on the owner's ability to manage and control the applicant concern, VA will be able to ensure that the business seeking verification is still truly under the control of the veteran owner.

29. Several commenters noted that the full-time requirement is discriminatory because it hinders organizations who do not operate between 9 a.m. and 5 p.m. Commenters also stated that the full-time requirement hinders a veteran's ability to attend to medical needs such as post traumatic stress disorder sessions. We agree with this comment. The full-time requirement has been removed and the rule has been restored to its original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.” This should alleviate any unnecessary burdens placed on veteran owners by the full-time requirement.

30. One commenter stated that the provision would preclude home-based businesses and prevent active duty service members from starting their business prior to leaving for active military service. We agree with this comment. The full-time requirement placed an undue burden on veteran small business owners. By removing the requirement and restoring the rule to its original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business,” the concerns of the commenter have been addressed.

31. One commenter noted that VA failed to consider the impact of the full-time rule in the context of multiple business entities. The commenter pointed out that many veterans buy stock or shares as investments in other veteran-owned businesses thereby making them owners in those entities. The regulation seems to prohibit such stock ownership in more than one verified business. The commenter also noted that the full-time requirement is contrary to the intent of 38 U.S.C. 8127(l) which defines small business concern owned and controlled by veterans as “not less than 51 percent of which is owned by one or more veterans” and “the management and daily business operations of which are controlled by one or more veterans.” The commenter noted that Congress' intent was that control of an eligible VOSB be shared with two or more veterans each contributing part of the time and effort necessary to manage and operate the business. We agree with these comments. The full-time requirement, coupled with the single business requirement placed an undue burden on veteran business owners who may have part ownership in several legitimate VOSBs or SDVOSBs. By removing the requirements and restoring the rule to its original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business,” these concerns have been addressed.

32. One commenter suggested that the regulation be amended to state “that when full-time work is not required due to lack of government business, then the owner/manager is not required to participate in the business full-time.” The full-time requirement has been removed and the rule restored to its original text that “[a]n applicant or participant must be controlled by one or more veterans or service-disabled veterans who possess requisite management capabilities. Owners need not work full-time but must show sustained and significant time invested in the business.” Therefore, the suggested amendment is unnecessary.

VA sought comments on the merits of establishing a 60-day period for the Director, Center for Veterans Enterprise to issue a written decision on a request for reconsideration. We did not receive any comments within the scope of the request. Therefore, we have made no change to this rule.

A number of additional comments were received which were beyond the scope of the request for comments, and, therefore, we will not make any changes based on those comments.

This final rule would generally be small business neutral as it applies only to applying for verified status in the VetBiz.gov Vendor Information Pages (VIP) database. The overall impact of the final rule will be of benefit to small businesses owned by veterans or service-disabled veterans. VA estimates the cost to an individual business to be less than $100.00 for 70-75 percent of the businesses seeking verification, and the average cost to the entire population of veterans seeking to become verified is less than $325.00 on average. A related rule describes the effect that verified businesses will have in the Department's acquisition regulation. This impact is discussed in the proposed rule modifying the VA Acquisition Regulation which was published in the Federal Register at 73 FR 49141 on August 20, 2008. On this basis, the Secretary hereby certifies that the adoption of this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this regulation is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this rule have been examined and it has been determined to be a significant regulatory action under the Executive Order.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments, or on the private sector.

This final rule contains provisions that constitute collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). OMB has approved these collections and has assigned control number 2900-0675. VA displays this control number under the applicable sections of the regulations in this final rule. OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This final rule affects the verification guidelines of veteran-owned small businesses, for which there is no Catalog of Federal Domestic Assistance program number.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on November 16, 2010, for publication.

On November 3, 2009 (74 FR 56754), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The formal SIP revision was submitted by the Commonwealth of Virginia on September 8, 2008. The NPR proposed approval of the Virginia SIP revision that clarifies and recodifies provisions covering case-by-case RACT, as well as added the 1997 8-hour ozone standard RACT requirements to the Commonwealth's regulations. EPA received no comments on the proposal to approve Virginia's SIP revision. However, regulation 9VAC5-40-7420F. and G. incorrectly cross-referenced the Commonwealth's Volatile Organic Compounds (VOC) regulations at 9VAC5-40-7390, instead of its nitrogen oxides regulation at 9VAC5-40-7410. On September 27, 2010, Virginia submitted a correction to the regulation (Article 51 of 9VAC5-40, Existing Stationary Sources) that contains the requirements for making case-by-case RACT determinations. The SIP revision corrected the two typographic errors in order to correctly cross-reference regulation 9VAC5-40-7420F. and G. to the nitrogen oxides regulation at 9VAC5-40-7410.

The Commonwealth's SIP revision consists of the following changes:

1. Addition of 9VAC5 Chapter 40, Article 51—Emission Standards for Stationary Sources Subject to Case-by-Case RACT Determinations, in order to separate the RACT specific requirements from the general process requirements of Article 4 of 9VAC5 Chapter 40.

2. Administrative wording changes to regulations 9VAC5-40-250A. and 9VAC5-40-250B.

3. Deletion of definition of “Reasonably available control technology” in 9VAC5-40-250C. and addition of the other definitions in 9VAC5-40-250C. to 9VAC5-40-7380 in Article 51 of 9VAC5 Chapter 40.

4. Addition of the following definitions to regulation 9VAC5-40-7380C.—Terms defined: “Presumptive RACT,” “Theoretical potential to emit” and “Tpy.”

5. All the definitions in regulation 9VAC5-40-311B.3—Terms defined, are deleted and added to 9VAC5-40-7380C. in Article 51 of 9VAC5 Chapter 40.

6. Repealed regulations 9VAC5-40-300—Standard for volatile organic compounds, 9VAC5-40-310—Standard for nitrogen oxides, and 9VAC5-40-311—Reasonably available control technology guidelines for stationary sources of nitrogen oxides, in Article 4 of 9VAC5 Chapter 40 are replaced with 9VAC5-40-7390—Standard for volatile organic compounds (one-hour standard), 9VAC5-40-7410—Standard for nitrogen oxides (one-hour ozone standard), and 9VAC5-40-7430—Presumptive reasonably available control technology guidelines for stationary sources of nitrogen oxides, respectively, in Article 51 of 9VAC5 Chapter 40.

7. Addition of the 1997 8-hour ozone standard requirements for RACT in regulations 9VAC5-40-7400—Standard for volatile organic compounds (eight-hour ozone standard) and 9VAC5-40-7420—Standard for nitrogen oxides (eight-hour ozone standard).

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a State agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a State audit privilege and immunity law can affect only State enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the State plan, independently of any State enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, State audit privilege or immunity law.

EPA is approving the Virginia SIP revision that clarifies and recodifies provisions covering case-by-case RACT, as well as adds the 1997 8-hour ozone standard RACT requirements to the Commonwealth's regulations.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 21, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, pertaining to the Commonwealth of Virginia's RACT provisions under the 8-hour ozone NAAQS, may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.gpoaccess.gov/ecfr.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2009-0032 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before March 21, 2011. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2009-0032, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of August 19, 2009 (74 FR 41898) (FRL-8426-7), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of two pesticide petitions: PP 9E7570 by Interregional Research Project Number 4 (IR-4), 500 College Rd. East, Suite 201 W, Princeton, NJ 08540; and PP 9F7571 by ISK Biosciences Corporation, 7470 Auburn Rd., Suite A, Concord, OH 44077. PP 9E7570 requested that 40 CFR 180.574 be amended by establishing tolerances for residues of the fungicide fluazinam, (3-chloro- N -[3-chloro-2,6-dinitro-4-(trifluoromethyl)phenyl]-5-(trifluoromethyl)-2-pyridinamine), in or on carrot, root at 0.8 parts per million (ppm). PP 9F7571 requested that 40 CFR 180.574 be amended by establishing tolerances for residues of the fungicide fluazinam and the metabolite AMGT, (3-[[4-amino-3-[[3-chloro-5-(trifloromethyl)-2-pyridinyl]amino]-2-nitro-6-(trifluoromethyl) phenyl] thio]-2-(beta-D-glucopyranosyloxy) propionic acid), in or on the raw agricultural commodity apple at 1.7 ppm and wet apple pomace at 5.0 ppm, and by establishing tolerances for the combined residues of fluazinam and its metabolites, DAPA and AMPA, in the following animal tissues and meat byproducts at 0.03 ppm: Cattle, fat; cattle, kidney; cattle, liver; cattle, meat; cattle, meat byproducts; goat, fat; goat, kidney; goat, liver; goat, meat; goat, meat byproducts; horse, fat; horse, kidney; horse, liver; horse, meat; horse, meat byproducts; milk; sheep, fat; sheep, kidney; sheep, liver; sheep, meat; and sheep, meat byproducts. PP 9E7570 referenced a summary of the petition prepared on behalf of IR-4 by ISK Biosciences, the registrant; PP 9F7571 referenced a summary of the petition prepared by the registrant, ISK Biosciences. Petition summaries are available in the docket, http://www.regulations.gov. There were no comments received in response to the notices of filing.

Based upon review of the data supporting the petition, EPA has revised several proposed tolerances and has determined that several other proposed tolerances are not necessary. The reasons for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.”

Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluazinam including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluazinam follows.

In the Federal Register of May 12, 2010 (75 FR 26662) (FRL-8824-5), EPA published a Final Rule establishing tolerances for residues of the fungicide fluazinam in or on bushberry subgroup 13-07B at 7.0 pm; lettuce, head at 0.02 ppm; lettuce, leaf at 2.0 ppm; and onion, bulb, subgroup 3-07A at 0.20 ppm, associated with PP 8E7506. When the Agency conducted the risk assessment in support of the May 12, 2010 tolerance action, it considered the use of fluazinam in or on carrot, root (PP 9E7570), apples and wet apple pomace (PP 9F7571), and fluazinam and its metabolites AMPA and DAPA in the following animal tissues and meat byproducts: Cattle, fat; cattle, kidney; cattle, liver; cattle, meat; cattle, meat byproducts; goat, fat; goat, kidney; goat, liver; goat, meat; goat, meat byproducts; horse, fat; horse, kidney; horse, liver; horse, meat; horse, meat byproducts; milk; sheep, fat; sheep, kidney; sheep, liver; sheep, meat; and sheep, meat byproducts (PP 9F7571). However, because of data deficiencies identified during the course of review, EPA was not able to recommend in favor of the tolerances associated with PP 9E7570 and PP 9F7571. The deficiencies related to an apple processing study, a cattle feeding study, and the analytical method for the metabolites AMPA and DAPA in fat, liver, and kidney.

In response to the noted data deficiencies, the registrant provided additional data for the apple processing study and a rebuttal to the cattle feeding study; after further review, EPA has determined that these studies are now acceptable. Additionally, in response to the analytical method data deficiency, the registrant submitted a revised analytical method and independent laboratory validation, which EPA has concluded is adequate as an enforcement method for residues of fluazinam, AMPA, and DAPA and their sulfamate conjugates in kidney, liver, and fat. Detailed considerations regarding EPA's resolution of these data deficiencies are discussed in the document, “Fluazinam, Petitions for the Establishment of Tolerances and Registration of New Uses on Apples and Carrots. HED's Conclusions Regarding Registrant's Response to Data Deficiencies” which is available at http://regulations.gov in docket EPA-HQ-OPP-2009-0032.

Since EPA considered the additional uses proposed by PP 9E7570 and PP 9F7571 in its most recent risk assessments, establishing tolerances on these commodities will not change the estimated aggregate risks resulting from use of fluazinam, as discussed in the May 12, 2010 (75 FR 26662) (FRL-8824-5) Federal Register . Therefore, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to fluazinam residues. Refer to the May 12, 2010 Federal Register document, available at http://www.regulations.gov, for a detailed discussion of the aggregate risk assessments and determination of safety. EPA relies upon those risk assessments and the findings made in the Federal Register document in support of this action.

An adequate enforcement methodology, gas chromatography with electron capture detection (GC/ECD), is available to enforce the tolerance expression for plant commodities. For livestock commodities, an adequate enforcement method, liquid chromatography/mass spectrometry/mass spectrometry (LC/MS/MS), is available to enforce the tolerance expression for residues of fluazinam, AMPA, and DAPA and their sulfamate conjugates in bovine liver, fat, and milk.

The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established MRLs for fluazinam in or on apple or carrot. However, these tolerance petitions have been evaluated as a joint review with Canada, and the United States and Canada have agreed that the appropriate tolerance levels for carrot, roots is 0.70 ppm and apple is 2.0 ppm.

Based on analysis of the data supporting the petitions, EPA has revised the proposed tolerances in or on carrot, roots from 0.8 ppm to 0.70 ppm; apples from 1.7 ppm to 2.0 ppm; and the following proposed tolerances from 0.03 ppm to 0.05 ppm: Cattle, fat; cattle, meat byproducts; goat, fat; goat, meat byproducts; horse, fat; horse, meat byproducts; sheep, fat; and sheep, meat byproducts. EPA revised these tolerance levels based on analysis of the residue data using the Agency's Tolerance Spreadsheet in accordance with the Agency's “Guidance for Setting Pesticide Tolerances Based on Field Trial Data.”

Additionally, based on the results of an animal feeding study and the calculated dietary burden for dairy cattle, EPA has determined that the proposed tolerances of 0.03 ppm for the meat of cattle, goat, horse, and sheep are not necessary. The Agency has further determined that the proposed tolerances of 0.03 ppm for the liver and kidney of cattle, goat, horse, and sheep are not necessary because tolerances are being established for meat byproducts of cattle, goat, horse, and sheep; EPA previously determined that individual tolerances are not needed for liver and kidney when a tolerance is being established for meat byproducts.

Therefore, tolerances are established for residues of fluazinam, (3-chloro- N -[3-chloro-2,6-dinitro-4-(trifluoromethyl)phenyl]-5-(trifluoromethyl)-2-pyridinamine), in or on carrot, roots at 0.70 ppm; apple at 2.0 ppm; apple, wet pomace at 5.0 ppm; and tolerances are established for residues of fluazinam and its metabolites AMPA and DAPA in or on cattle, fat at 0.05 ppm; cattle, meat byproducts at 0.05 ppm; goat, fat at 0.05 ppm; goat, meat byproducts at 0.05 ppm; horse, fat at 0.05 ppm; horse, meat byproducts at 0.05 ppm; sheep, fat at 0.05 ppm; and sheep, meat byproducts at 0.05 ppm.

This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal governments, on the relationship between the national government and the States or Tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit 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 prior to publication of this final rule in the Federal Register. This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Section 12 of the ESA (16 U.S.C. 1531 et seq. ) directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered endangered, threatened, or extinct. On July 1, 1975, we published a notice in the Federal Register (40 FR 27824) accepting the Smithsonian report as a petition to list taxa named therein under section 4(c)(2) (now section 4(b)(3)) of the ESA and announced our intention to review the status of those plants. Erigeron maguirei was included in that report (40 FR 27824, July 1, 1975). Maguire daisy is the common name for E. maguirei; however, we will primarily use the scientific name of this species throughout this rule.

On June 16, 1976, we published a proposed rule in the Federal Register (41 FR 24524) to designate approximately 1,700 vascular plant species, including Erigeron maguirei, as endangered under section 4 of the ESA. The 1978 amendments to the ESA required that all proposals over 2 years old be withdrawn. On December 10, 1979, we published a notice of withdrawal (44 FR 70796) of that portion of the June 16, 1976, proposal that had not been made final, which included the endangered status determination for E. maguirei.

On December 15, 1980, we published in the Federal Register a revised notice of review for native plants that designated Erigeron maguirei as a candidate species (45 FR 82480). Section 4(b)(3)(B) of the ESA requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information that listing the species may be warranted, we make a finding within 12 months of the date of receipt of the petition. In addition, section 2(b)(1) of the Public Law 97-304 (the 1982 amendments to the ESA) required that all petitions pending as of October 13, 1982, be treated as if newly submitted on that date. Since the 1975 Smithsonian report was accepted as a petition, all the taxa contained in those notices, including E. maguirei, were treated as being newly petitioned as of October 13, 1982. On October 13, 1983, we made a 12-month finding that the petition to list E. maguirei var. maguirei was warranted but precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Notification of this finding was published in the Federal Register on November 28, 1983 (48 FR 53640).

On July 27, 1984, we published a proposed rule to designate Erigeron maguirei var. maguirei as an endangered species (49 FR 30211). The final rule designating the variety of the species as endangered was published on September 5, 1985 (50 FR 36089).

In 1983, Erigeron maguirei var. harrisonii was described as a separate variety of E. maguirei. On September 27, 1985, we published a notice of review for plants which added E. maguirei var. harrisonii as a candidate species (50 FR 39526). E. maguirei var. harrisonii remained as a candidate through the revised plant notice of review published on September 30, 1993 (58 FR 51144).

On September 7, 1994 (59 FR 46219), we proposed to accept a taxonomic revision that combined two varieties, Erigeron maguirei var. maguirei and E. maguirei var. harrisonii, into one species, E. maguirei. The taxonomic revision was based on new genetic information (Van Buren 1993, p. 1; Van Buren and Harper 2002, p. 1). Due in part to the taxonomic revision, we also proposed reclassifying E. maguirei from endangered to threatened because the population numbers and distribution range of the newly described species, E. maguirei, were larger than either of the two varieties. The taxonomic revision and reclassification of E. maguirei was finalized on June 19, 1996 (61 FR 31054).

On May 16, 2008, we published a proposed rule to remove Erigeron maguirei from the List of Endangered and Threatened Plants, provided notice of the availability of a draft post-delisting monitoring plan, and opened a 60-day public comment period (73 FR 28410). On May 19, 2008, we finalized a 5-year review, initiated on April 7, 2006 (71 FR 17900), which confirmed that the best scientific and commercial data available indicated that this species has recovered and no longer meets the definition of endangered or threatened under the ESA.

A member of the sunflower family, Erigeron maguirei is a perennial herb with a branched woody base. Its stems are decumbent (lying on the ground with the tip ascending) to sprawling or erect. Its basal leaves are spatulate-shaped to oblanceolate (the shape of the leaf is longer than it is wide with the broadest portion of the leaf at the tip and narrower at the base). Its leaves and stems are covered with abundant stiff, coarse, white hairs. Bits of sand commonly cling to the hairs of the leaves and stems. Its flowers are dime-sized with white or pinkish-white petals. The species is further described in our June 19, 1996, final rule reclassifying the species as threatened (61 FR 31054).

The range of the species is estimated at 390 square miles (1,010 square kilometers) and extends from the San Rafael Swell south through the Waterpocket Fold of Capitol Reef National Park (see Figure 1) (Heil 1987, p. 5; 1989, p. 23; Kass 1990, p. 23; Harper and Van Buren 1998, pp. 1-2; Clark 2001, p. 2; 2002, p. 12; Clark et al. 2005, pp. 7-8; Clark et al. 2006, pp. 7-8).

Erigeron maguirei occurs from 5,200 to 8,600 feet (1,585 to 2,621 meters) in elevation (Clark et al. 2006, pp. 9-11). The highest plant densities occur on mesa tops between 6,000 and 7,000 feet (1,829 and 2,134 meters) in elevation (Kass 1990, p. 23; USFWS 1995, p. 2; Clark 2001, p. 3; Clark et al. 2006, pp. 9-11).

The distribution of Erigeron maguirei includes 10 populations (containing 128 sites) composing 5 meta-populations (Clark et al. 2006, p. 8; Ivory 2009a, p. 1; 2009b, p. 1; Clark 2010a, p. 1; Truman 2010, p. 1; Robinson 2010, entire), distributed across the species' range (see Figure 1 above). Populations are defined as groups of occurrence records (sites) located in the same geographic vicinity (Clark 2006b, p. 5; Figure 1). Sites are defined as occurrence locations recorded by one or more researchers over time within an individual population (Clark 2006b, p. 5). Every site is documented by at least one of the following: (1) A herbarium collection record; (2) field survey forms completed by researchers; or (3) a record from the Utah Natural Heritage Program. Meta-populations are comprised of a number of individual populations less than 1.5 miles (2.4 kilometers) apart, typically linked by continuous suitable habitat (Clark 2006b, p. 5; Clark 2006c). Populations within a meta-population interact at some level. For E. maguirei, the interaction may be from pollinators traveling between the populations or by wind carrying seeds to other populations. Table 1 provides population size estimates, number of sites, and land ownership of each population.

The three largest Erigeron maguirei populations (Deep Creek, Capitol Reef, and Waterpocket Fold) comprise the Capitol Reef meta-population. Collectively, these three populations contain 93 percent of the known plants including ninety-two percent within Capitol Reef National Park and 1 percent on U.S. Forest Service (USFS) lands (Fishlake National Forest).

The other seven populations (Calf Canyon, Sids Hole, Coal Wash, Secret Mesa, Link Flats, John's Hole, and Segers Hole) are managed primarily by the Bureau of Land Management (BLM). Portions of three of these seven populations (Calf Canyon, Secret Mesa, and Link Flats) occur on State of Utah School and Institutional Trust Lands Administration (SITLA) lands. The Calf Canyon population is the sole population in the Northern San Rafael Swell meta-population; the Sids Hole population is the sole population in the Cottonwood Draw meta-population; Coal Wash, Secret Mesa, and Link Flats comprise the Central San Rafael Swell meta-population; and John's Hole and Seger's Hole populations comprise the Southern San Rafael Swell meta-population.

Erigeron maguirei occurs primarily on sandstone domes on mesa tops and in cracks and crevices of domes and cliffs in the Navajo Sandstone formation (Clark et al. 2006, p. 12). It also occurs within steep, narrow, dry, rocky, and sandy canyon or wash bottoms (Cronquist 1947, p. 165; Anderson 1982, pp. 1-2; Heil 1989, pp. 25-26; Kass 1990, p. 22; Harper and Van Buren 1998, p. 1). Populations within canyon bottoms are established from seeds dispersed by wind or overland flow from source populations on the mesa tops (Heil 1989, p. 25; Kass 1990, p. 27; USFWS 1995, p. 2). These canyon populations are generally small compared with those on the mesa tops (Heil 1989, p. 25; Kass 1990, p. 27; USFWS 1995, p. 2).

Erigeron maguirei grows primarily in the Dwarf Mountain Mahogany Slickrock plant community, a community endemic to the Colorado Plateau Region (Heil 1989, p. 23; Clark 2001, pp. 15-16; Clark et al. 2006, p. 15). E. maguirei also is associated with pinyon juniper-tall shrub, ponderosa pine-tall shrub slickrock pockets, mesic canyon bottoms, mountain shrub, and intermittent riparian communities (Kass 1990, p. 22; Harper and Van Buren 1998, p. 1; Clark 2002, pp. 15-16; Clark et al. 2005, p. 7; Clark et al. 2006, p. 15).

Flowering occurs from May to June and takes 4 to 6 weeks to go from the small green “button” bud stage to completion of anthesis, when the flower is no longer open and functional (Alston and Tepedino 2005, p. 54; Clark et al. 2006, p. 17). It appears that Erigeron maguirei lacks self-compatibility, and that pollinators are necessary for cross pollination to occur (Alston and Tepedino 2005, p. 61). Because of the open nature of the flower head, E. maguirei is visited by opportunistic insects searching for nectar (Alston and Tepedino 2005, p. 60). Pollinators include various flies, wasps, and bees (Alston and Tepedino 2005, p. 60).

The species is long-lived, has a low mortality rate, and has the ability to replace individuals at a rate that compensates for mortality (Van Buren and Harper 2002, pp. 2-5). Populations are stable (Van Buren and Harper 2002, p. 2).

Recovery plans are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods to minimize threats to listed species, establish goals for long-term conservation of listed species, and define criteria that may be used to determine when recovery is achieved. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and the species is robust enough to reclassify from endangered to threatened or to delist. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

We approved the Maguire Daisy ( Erigeron maguirei ) Recovery Plan (hereafter referred to as the Recovery Plan) on August 15, 1995 (USFWS 1995, entire). The Recovery Plan outlined three delisting criteria. These criteria, and the status of the species relative to these criteria, are outlined below.

Delisting Criterion One: Locate or establish additional populations. Maintain 20 populations that have been demonstrated to be above minimum viable population levels. Until minimum viable population levels are determined, it is assumed that the minimum viable population level will be about 500 individuals (USFWS 1995, p. ii). At the time the Recovery Plan was written, the species was known from 7 populations (32 sites) with a total population of 5,000 individuals (USFWS 1995, p. 2). To achieve this criterion, the Recovery Plan recommended that land managers inventory suitable habitat to determine with a reasonable degree of accuracy the species' population and distribution (USFWS 1995, pp. ii, 6, 7, 12).

In 1999, the BLM, USFS, and the National Park Service (NPS) entered into an interagency agreement to direct conservation measures for listed and sensitive plant species endemic to central Utah, including Erigeron maguirei (BLM et al. 1999, entire; Clark 2002, p. 3). The agencies committed funding to survey and monitor E. maguirei throughout its range (Clark 2002, p. 3). From 1999 to 2002, approximately 3,521 hectares (8,700 acres) were surveyed for E. maguirei on NPS, BLM, and USFS lands (Clark and Clark 1999, p. 45; Clark 2002, p. 13).

The recovery criterion of maintaining 20 viable populations was based on our earlier assumption that the species was distributed in a scattered, disconnected pattern (Clark 2006c, entire). However, the survey efforts identified broader plant distributions and larger population sizes that are evenly distributed across the landscape (Harper and Van Buren 1998, p. 2; Clark and Clark 1999, p. 47; Clark 2001, p. 3; 2002, pp. 13-14; Clark et al. 2005, p. 17; Clark et al. 2006, p. 17).

We currently know of 10 populations (128 sites) comprising 5 meta-populations, with a total population of 162,897 Erigeron maguirei individuals (see Figure 1 and Table 1 above) (Clark et al. 2006, p. 16; Ivory 2009a, p. 1; 2009b, p. 1; Clark 2010a, p. 1; Robinson 2010, entire). As previously described, the range of the species covers 390 square miles (1,010 square kilometers) and extends from the San Rafael Swell south through the Waterpocket Fold of Capitol Reef (see Figure 1 above) (Clark et al. 2006, p. 17; Clark 2010a, p. 1; Truman 2010, p. 1; Robinson 2010, entire). All three E. maguirei populations within the Capitol Reef Meta-Population are linked by contiguous suitable habitat (Clark et al. 2006, p. 24). A similar situation exists between populations in each of the three meta-populations within the San Rafael Swell area; suitable habitats are separated by short distances, effectively linking populations (Clark et al. 2006, p. 24).

In 2010, the fifth meta-population (Cottonwood Draw) was discovered east of the Central San Rafael Swell meta-population and south of the Northern San Rafael Swell population (see Figure 1 above) (Clark 2010a, p. 1; Truman 2010, p. 1). The Cottonwood Draw meta-population is currently comprised of a single population (Sids Hole). This area was discovered through recent implementation of the post-delisting monitoring protocol. The area has not been fully surveyed or evaluated and may include additional populations or sites, but is generally viewed as less ideal for the species with patchy areas of suitable habitat that currently appear isolated from other sites or populations. While not adding much to the species' overall viability, recent discoveries (since the 2008 proposed rule), such as this one, provide added support for our conclusion regarding the species' overall status.

Overall, the available information demonstrates large, sufficiently connected, and evenly distributed populations and suitable habitats that provide and will continue to provide for the desired long-term species' viability intended by the Recovery Plan. In fact, the 10 populations have more desirable biological attributes than the originally suggested 20 populations in the Recovery Plan. For example, the recovery goal of 20 populations was based on the assumption that the populations were small and widely scattered. The 10 current populations are well connected within 5 meta-populations, and these meta-populations are distributed throughout the range of the species (see Figure 1 and Table 1 above). The habitat is contiguous between populations, thereby increasing the species' robustness. Furthermore, the Recovery Plan called for 20 populations of 500 individuals. This suggests recovery at about 10,000 plants. Today, we know of 162,897 Erigeron maguirei individuals, far surpassing the implied numeric target in the Recovery Plan. In addition, the species' population is stable (see Species Information ). Therefore, the available data demonstrate that the intent of this recovery criterion has been met or exceeded.

Delisting Criteria Two and Three: Establish formal land management designations for these populations that provide long-term, undisturbed habitat for Maguire daisy (USFWS 1995, p. ii). Ensure that Maguire daisy and its habitat are protected from loss of individuals and environmental degradation (USFWS 1995, p. ii). To achieve these criteria, the Recovery Plan recommended we work with our partners to document the presence of, or establish formal land management designations that provide for long-term protection for, Maguire daisy and its habitat (USFWS 1995, pp. ii, 6, 9, 12).

Approximately 85 percent of the species' range occurs on Federal lands with substantial protective measures in place (see Table 2 and Factor D below). For example, the NPS General Management Plan designated Primitive and Threshold Management Zones (Capitol Reef 1998, pp. 27-31); these land designations afford protection to the three largest Erigeron maguirei populations by limiting surface disturbance and construction activities. The BLM designated Wilderness Study Areas (WSAs), Instant Study Areas (ISA), and Areas of Critical Environmental Concern (ACECs) in the approved 2008 Price Field Office Resource Management Plan (RMP) (BLM 2008c, Maps R-5, R-28, and R-29). These land designations afford protection to six E. maguirei populations by minimizing habitat degradation and surface disturbances from grazing, mining, mineral lease uses, and right-of-way grants (see Factor D) (BLM 2008c, pp. 41, 129, 131, and 135-137; BLM 2009, entire; Stephens 2009, p. 1). Similarly, off-highway vehicle (OHV) use also is effectively managed to minimize disturbances to plants by eliminating cross-country travel on USFS and BLM lands (USFS 2006b, pp. 123, 260-263; 2008, Tile K11; 2009, Map). OHVs are not allowed in Capitol Reef National Park, which represents the majority of the species' range (see Factor D). More information regarding the protection of E. maguirei through land management designations is contained in the Factor D discussion of the Summary of Factors Affecting the Species.

Additionally, the Interagency Rare Plant Team developed the Central Utah Navajo Sandstone Endemics Conservation Agreement and Strategy (hereafter referred to as the Conservation Strategy) (USFS et al. 2006, entire). Although we do not base our delisting decision on the existence of the Conservation Strategy, we believe it will provide for the continued conservation of the species. The Conservation Strategy, signed by the USFS, BLM, NPS, and the Service in September 2006, outlines the procedural provisions under which the Federal agencies will manage Erigeron maguirei through 2016 (USFS et al. 2006, pp. 24-25). In addition, the Conservation Strategy documents the conservation actions needed to mitigate any potential factors impacting the species and to promote the conservation and perpetuation of E. maguirei (USFS et al. 2006, pp. 38-47). The Conservation Strategy can be viewed in its entirety at: http://mountain-prairie.fws.gov/species/plants/maguiredaisy/. Copies also can be obtained from the Utah Field Office ( see FOR FURTHER INFORMATION CONTACT ).

In summary, Federal land management agencies have worked collaboratively to provide for the long-term protection of Erigeron maguirei and its habitat. Land management plans, policies, and regulations are in place that provide protection to E. maguirei. Based on the above, the intent of Criteria 2 and 3 have been met.

Based on the best available data, we have determined that the intent of all three recovery criteria is met.

In our proposed rule (73 FR 28410, May 16, 2008), we requested that all interested parties submit data, comments, new information, or suggestions concerning: (1) Biological information concerning this species; (2) Relevant data concerning any current or likely future threats (or lack thereof) to this species, including the extent and adequacy of Federal and State protection and management that would be provided to the Erigeron maguirei as a delisted species; (3) Additional information concerning the range, distribution, population size, and population trends of this species, including the locations of any additional populations of this species; (4) Current or planned activities in the subject area and their possible impacts on this species; and (5) Our draft post-delisting monitoring plan. We accepted comments for 60 days, ending July 15, 2008 (73 FR 28410, May 16, 2008). During the comment period, we received two comment letters representing three organizations.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270) and the Office of Management and Budget's (OMB) December 16, 2004, Final Information Quality Bulletin for Peer Review, we solicited independent opinions from 10 knowledgeable individuals who have expertise with the species, who are within the geographic region where the species occurs, or who are familiar with the principles of conservation biology. We received comments from four of the peer reviewers, all of whom are or were employed by Federal agencies. Although we solicited non-Federal academic peer reviewers, these parties did not respond. Peer reviewers provided new information, management guidance recommendations, editorial changes, and clarifications to the species' description.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding the proposed delisting of Erigeron maguirei. Substantive comments received during the comment period are addressed below and, where appropriate, incorporated directly into this final rule and the post-delisting monitoring plan.

Issue 1: One commenter expressed concern that SITLA lands are managed for minerals, grazing and recreation, and not for conservation of Erigeron maguirei. Isolated SITLA parcels are generally managed in conjunction with the BLM lands for grazing. These SITLA lands also are open for cross-country travel and do not fall into any designated route plan.

Response: Less than 1 percent of the species' plants occur on lands owned and managed by SITLA. Therefore, special management designations on SITLA lands, such as travel route designations, are not essential for the conservation of the species and are not necessary to support the delisting of the species.

Issue 2: One commenter expressed concern with how the post-delisting monitoring plan for the Maguire daisy characterized the status of several of the remote populations. The commenter believed that these small remote sites (less than or near 50 plants) would be seriously impacted by delisting. The commenter also stated that the Calf Canyon population of 50 plants was last visited in 1982, and it is unknown if it still exists.

Response: The draft post-delisting monitoring plan contained information regarding a number of monitoring sites within populations. We believe that the draft post-delisting monitoring plan was confusing with regard to the definitions and use of the terms “population,” “site,” and “element occurrence.” We have now clarified our terminology and have thoroughly reviewed the document to ensure we used the terms properly and consistently throughout the final post-delisting monitoring plan.

Even though some sites contain fewer than 50 individuals, we have little reason to believe these sites are likely to be seriously impacted by delisting. Most of these sites have persisted for long periods of time without noteworthy negative changes in status. The species is long-lived, has a low mortality rate, and has the ability to replace individuals at a rate that compensates for mortality (Van Buren and Harper 2002, pp. 2-5). Populations are stable (Van Buren and Harper 2002, p. 2). Additionally, the species' preferred habitat (cliffs, rock crevices, and sandstone domes on mesa tops) is subject to few threats ( see Summary of Factors Affecting the Species below). Collectively this suggests these sites are unlikely to be lost.

Even if some sites do suffer negative effects, many of these sites are connected to neighboring sites as part of a larger population and meta-population. For example, the Link Flats population is comprised of a number of sites totaling approximately 250 individuals and is within the San Rafael Swell area, where most suitable habitat occurrences are separated by short distances (Clark et al. 2006, p. 24). Meta-population dynamics indicate that although individual sites may be lost, they can be recolonized by seed dispersed from other neighboring sites.

As an added safeguard, land managers plan to carefully monitor one site within each population including some small sites (Service 2010, pp. 7-10). If impacts are observed, population trend monitoring will be expanded to include human impact monitoring (Service 2010, pp. 14-15). If a 40 percent or more decline is observed in a 2-year period at any of the monitoring plots, cooperators will evaluate possible causes of the apparent decline and determine the most appropriate response (Service 2010, p. 16). We believe this is sufficient to ensure few, if any, sites are at serious risk of extirpation.

Furthermore, even if we lost some or many of these small sites, we do not believe the species would qualify as an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). Erigeron maguirei is estimated at 162,897 individuals over a range of about 390 square miles (1,010 square kilometers) with 10 populations (containing 128 sites) composing 5 meta-populations (see Figure 1 and Table 1 above) (Clark et al. 2006, p. 16; Ivory 2009a, p. 1; 2009b, p. 1). In our view, these large, connected, and evenly distributed populations and suitable habitats provide for the species' long-term viability. Thus, even in the unlikely event that some or many of these small sites were lost, it would not change our determination.

Regarding the Calf Canyon population, the area was resurveyed in 2009 and again in 2010. These surveys identified 10 sites with at least 500 plants total (Ivory 2009a, p. 1; Ivory 2009b, p. 1; Robinson 2010, entire). The majority of the plants were located on a mesa top in the vicinity of the canyon bottom populations where the species was first described. As the final post-delisting monitoring plan was signed prior to the majority of these sites being known, we are making a minor amendment to the plan to reflect the latest information.

Issue 3: One commenter recommended including a specific due date for the annual post-delisting monitoring report, such as December 1 of each year. The commenter further recommended that we provide a brief and concise summary to the agencies (NPS, BLM, and the USFS) regarding the status and adequacy of the monitoring efforts each year.

Response: We have incorporated these recommendations into the final post-delisting monitoring plan.

Issue 4: One commenter noted that many of the protections provided by ACECs and WSA designations on BLM lands are for the protection and management of lands in general and not specifically for Erigeron maguirei populations and habitat. These management restrictions would be in place whether E. maguirei is listed or not.

Response: We acknowledge that many land management designations are in place for other resources; however, Erigeron maguirei will benefit from habitat being protected in these areas. We have incorporated language into this final rule to address this comment (see Factor D).

Issue 5: One commenter believed that the proposed rule did not fully recognize tar sands development as a threat to this species and does not disclose the number of plants in the Calf Canyon, Secret Mesa, and Link Flats areas within designated tar sands areas. The commenter expressed concern that delisting the species would open up the area for development, and that it appears that we were writing off the populations in this area.

Response: Since the proposed rule was published, the BLM has finalized the Record of Decision and Approved RMP, and the Record of Decision for Oil Shale and Tar Sands Resources to Address Land Use Allocations in Colorado, Utah, and Wyoming and Final Programmatic Environmental Impact Statement (BLM 2008a, entire; 2008c, entire). The final rule fully discloses the percentages of each population that are susceptible to tar sands development (Calf Canyon (0 percent); Secret Mesa (about 1 percent of the population); and Link Flats (almost 37 percent of the population)). The Link Flats population contains less than 1 percent of all known individuals of the entire E. maguirei population. Although tar sands development will affect individuals, the effects are expected to be localized and not reach the level that would compromise the species' viability. Tar sands development is further addressed under Factor A below.

Issue 6: One commenter expressed concern with potential loss of genetic variation through potential impacts from tar sands development in the eastern and northernmost portions of the range.

Response: The potential for genetic isolation is analyzed in this final rule. Based on the close proximity of known populations, connecting habitat between most populations, and available genetic research, the species is not considered threatened by reduced genetic viability. Given the locations of potential development relative to the known distribution of Erigeron maguirei populations, we expect impacts to the species to be localized and minor (see Factor A discussion below).

Issue 7: One commenter was concerned that the Conservation Strategy was relied upon as justification for delisting. The commenter opined that the Conservation Strategy is not legally binding and was prepared behind closed doors with no public input whatsoever.

Response: The commenter is correct that the Conservation Strategy is not legally binding. Future implementation of conservation actions is contingent upon funding availability of each Federal entity. However, our decision to remove Erigeron maguirei from the List of Endangered and Threatened Plants is not dependent on future actions associated with the Conservation Strategy. Our decision to remove E. maguirei from the List of Endangered and Threatened Plants is based on conservation actions already completed, current population levels and their management, and our analysis of threats to the species. The commenter is correct that public input was not sought in the development of the Conservation Strategy; however, public input was not required. The Conservation Strategy is a management guidance document that was prepared and will be implemented by the involved land management agencies. Although public input was not required during developing the Conservation Strategy, implementing specific on-the-ground actions must comply with National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) regulations, which include public comment and public disclosure.

Issue 8: One commenter stated that seven of the nine populations of Erigeron maguirei are open to oil and gas development.

Response: Seven of the 10 populations are open to oil and gas leasing (USFS et al. 2006, p. 56). The three largest populations (Deep Creek, Capitol Reef, and Waterpocket Fold) on Capitol Reef National Park contain 92 percent of the individuals and occur on lands withdrawn from all mineral exploration and development activities ( see Table 1 above and Factor D below; USFS et al. 2006, p. 56). Six of the remaining seven populations occur predominantly within the Navajo Sandstone formation, which has low potential for oil and gas development (USFS et al. 2006, pp. 37 and 56); the newest population occurs in an area that is atypical, where habitat is disjunct (Clark 2010a, p. 1). We have concluded that oil and gas development within Erigeron maguirei habitat is unlikely due to the low potential throughout the majority of the occupied habitats. Factor A presents additional analysis of the potential for energy development to affect the species.

Issue 9: One commenter stated that populations within Capitol Reef National Park are not necessarily protected because National Parks are not wildlife or plant sanctuaries, nor are they managed with objectives that are consistent with the protection of rare elements.

Response: More than 92 percent of the individual plants occur within Capitol Reef National Park (see Table 1 above). All Erigeron maguirei plants within Capitol Reef National Park are within Capitol Reef Primitive and Threshold Management Zones. These land management designations will provide protection to the species for the foreseeable future. Factor D presents our analysis of how these land management designations will specifically afford protection to the species.

Issue 10: One commenter was concerned that the delisting proposal downplays the significance of the effects of human and livestock trampling. The commenter believes that Erigeron maguirei should not be delisted unless cattle grazing is prohibited in the species' habitat.

Response: Eight of the 10 Erigeron maguirei populations occur within cattle allotments. However, the plants inhabit areas that are inaccessible to cattle due to steep terrain. Cattle have trailed through one population approximately once every 5 years for the past 100 years. Although cattle trailing can impact individual plants, the population where this activity occurs is stable (Clark et al. 2006, pp. 21, 25), and its viability is not affected by this level of impact. The newest population is near a reservoir used by cattle as a watering hole. Although the area experiences impacts from cattle grazing, this population is persisting without special management considerations affording it protection from grazing activities.

At the time of downlisting, we stated that livestock trampling was known to adversely impact individual plants (61 FR 31054; June 19, 1996). Livestock trampling negatively impacts individuals of Erigeron maguirei growing in accessible wash bottoms. However, the threat to the species is low because E. maguirei prefers cliffs and rock crevices that are inaccessible to livestock (Clark et al. 2006, p. 21). Due to habitat preferences of the species, livestock use is no longer a threat (Clark et al. 2006, p. 21).

The impact of grazing is analyzed in this final rule. The best available scientific data indicate that grazing does not pose a threat to the species and is unlikely to become a threat in the foreseeable future (Clark et al. 2006, p. 21).

Issue 11: One commenter claimed it is disingenuous to conclude that the species is recovered. If the species were to be delisted, it would be because of additional information and investigation, not because it was recovered.

Response: We recognize that this delisting is supported by new information. However, none of this information would be available had it not been due to the recovery efforts of the Interagency Rare Plant Team. The Federal partners that make up the Interagency Rare Plant Team deserve credit for implementing extensive recovery actions that allow us to remove the species from the List of Endangered and Threatened Plants. Without these actions, this species would still be listed.

Also of note, but not critical to our “delisting due to recovery” determination, only species delisted due to recovery are subject to the post-delisting monitoring requirement. We believe such a monitoring period is desirable in that it allows us to track any changes in status post-delisting and respond accordingly.

In making this final determination, we have considered all scientific and commercial information available, which includes information received during our 5-year review (71 FR 17900, April 7, 2006) and the public comment period on our proposed delisting rule (73 FR 28410, May 16, 2008); additional survey data collected in 2008, 2009, and 2010 (Ivory 2008, pp. 1-2; Ivory 2009a, entire; Ivory 2009b, entire; Clark 2010a, p. 1; Truman 2010, p. 1; Robinson 2010, entire); the final BLM RMP; the Final Oil Shale and Tar Sands RMP Amendments to Address Land Use Allocations in Colorado, Utah, and Wyoming and Programmatic Environmental Impact Statement; and additional scientific information from ongoing species' surveys and studies.

Section 4 of the ESA and its implementing regulations (50 CFR 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the ESA as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened (as is the case with Erigeron maguirei ); or (3) the original scientific data used at the time the species was classified were in error.

A recovered species is one that no longer meets the ESA's definition of endangered or threatened. Determining whether a species is recovered requires consideration of the same five categories of threats specified in section 4(a)(1) of the ESA. For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the ESA's protections.

A species is “endangered” for purposes of the ESA if it is in danger of extinction throughout all or a significant portion of its range and is “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. The “foreseeable future” is the period of time over which events or effects reasonably can or should be anticipated, or trends reasonably extrapolated.

The following analysis examines the five factors affecting, or likely to affect, Erigeron maguirei within the foreseeable future.

When the species was originally listed, the main threat was loss of habitat due to mining claims for uranium, energy exploration, and off-road vehicle (ORV) recreation (50 FR 36089, September 5, 1985). We address these threats to Erigeron maguirei below.

Mineral exploration and development were listed as threats in the Erigeron maguirei listing rule, the Recovery Plan, and the downlisting rule (50 FR 36089, September 5, 1985; USFWS 1995, p. 5; 61 FR 31054, June 19, 1996). The original listing (when the population was estimated at 7 individuals) and subsequent downlisting (when the population was estimated at 3,000 individuals) noted as threats existing uranium mining claims, the potential for extraction to begin when market forces change, and mining activities and associated surface disturbances that could directly or indirectly destroy plants or render the habitat unsuitable for the species (50 FR 36089, September 5, 1985; 61 FR 31054, June 19, 1996).

Uranium mining began in the western United States in 1871 (Ringholz 1994, p. 2). In 1952, the first noteworthy deposits of uranium ore in Utah were located (Ringholz 1994, p. 2). By the end of 1962, Utah had produced approximately nine million tons of ore (Ringholz 1994, p. 2). The Atomic Energy Commission held ample uranium ore reserves by 1970 and stopped buying uranium (Ringholz 1994, p. 3). When nuclear power plants came on-line in the mid-1970s, a brief second uranium boom was experienced (Ringholz 1994, p. 3). However, foreign competition, Federal regulations, and nuclear fears virtually put an end to domestic uranium mining (Ringholz 1994, p. 3). Substantial ore remains deep underground in Utah, and should prices rise, mining could be resurrected (Ringholz 1994, p. 3). In 2007, uranium prices increased as did mining activity (Hargreaves 2007, pp. 1-2).

Five uranium districts, areas depicting uranium resource development potential, overlap Erigeron maguirei populations; three of these districts have low potential, and two have moderate potential (Gloyn et al. 2005, Map 216; Clark et al. 2006, p. 9). We assume the highest potential districts will be developed first, allowing us to work proactively with other Federal agencies to minimize threats to the species and prevent relisting. A small portion of the Link Flats population (9 percent), a small portion of the Coal Wash population (16 percent), and a large portion (85 percent) of the Segers Hole population overlap uranium districts with moderate potential (Gloyn et al. 2005, Map 216; Clark et al. 2006, p. 9). Thirteen known uranium mineral locations, specific locations where mining claims exist, overlap the mapped E. maguirei populations (Clark et al. 2006, p. 16; Utah Geological Survey 2007, Map). Only the Lucky Strike Mine is active (Utah Geological Survey 2007, Map). This mine occurs along the southern edge of the mapped Link Flats population (Central San Rafael Swell Meta-Population) (Clark et al. 2006, p. 9; Utah Geological Survey 2007, Map). Operation of the mine will not adversely impact this population because it is located on the periphery of the population and is accessed via an existing road. Of the remaining 12 locations, 7 locations never produced uranium, and 5 locations only reached small production levels (Utah Geological Survey 2007, Map). Eleven of these locations occur on the periphery of the mapped E. maguirei populations (Clark et al. 2006, p. 16; Utah Geological Survey 2007, Map). The only location that occurs within a mapped population is within the Calf Canyon population (Clark et al. 2006, p. 16; Utah Geological Survey 2007, Map). Recent surveys extended the population to encapsulate the area around the mining location (Robinson 2010, p. 7); we were previously unaware of plants occurring in this area.

Uranium is restricted to geologic formations such as the Moss Back Member, Monitor Butte Member, and the Mottled Siltstone Unit of the Chinle Formation. Erigeron maguirei does not occur in these formations (Clark et al. 2006, p. 20). In addition, most of the E. maguirei individuals occur on lands managed by Capitol Reef National Park (92 percent) which are withdrawn from mining exploration and development activities (see Factor D) (Clark et al. 2006, p. 21; USFS et al. 2006, p. 56). In addition, historic mining activities proved there was not enough ore within Capitol Reef National Park to be worth mining (NPS 2009, p. 2). If uranium mining were to have any impact on E. maguirei, impacts would likely be limited to those associated with the access routes to the desired geologic formation (Clark et al. 2006, p. 20; Utah Geological Survey 2007, Map). Existing roads would likely be utilized. The most substantial affects of such use would be impacts to pollinators and impacts from road dust. We believe such impacts, if they occurred at all, would likely occur along the periphery of existing populations, would impact only small portions of known populations and, overall, would not likely impacts on the viability of individual populations or the species. Based on the locations of past exploration, the geologic distribution of uranium, and the limited overlap with the habitat requirements of E. maguirei, we do not foresee substantial future impacts from uranium mining to E. maguirei.

We did not previously identify gypsum mining as a threat to the species. Only the Deep Creek population in Capitol Reef National Park has a known gypsum occurrence (Utah Geological Survey 2007, Map). However, lands within Capitol Reef National Park are permanently withdrawn from mining exploration and development activities (see Factor D) (Clark et al. 2006, p. 21; USFS et al. 2006, p. 56). In addition, this gypsum occurrence is located on the periphery of the mapped Erigeron maguirei population and within the Primitive Management Zone (Capitol Reef 1998, p. 27; Utah Geological Survey 2007, Map). Travel through this Management Zone is limited to cross-country hiking or horseback riding on unimproved trails and routes (Capitol Reef 1998, pp. 27-29). Based on the lack of gypsum mining occurring in the range of the species, coupled with the land management designations in place affording protection to the species, we do not foresee gypsum mining adversely affecting the species in the foreseeable future.

Oil shale and tar sands development is not a threat to the species (USFS et al. 2006, p. 37). The most geologically prospective oil shale resources do not occur within the range of Erigeron maguirei (Clark et al. 2006, p. 9; BLM 2008a, p. 11). The most geologically prospective oil shale resources occur in the Uinta Basin of Utah, a distance of approximately 60 air miles (97 kilometers) from the closest population, Calf Canyon (Clark et al. 2006, p. 9; BLM 2008a, p. 11). Thus, we do not consider oil shale development a threat to the species. The rest of this section will focus on tar sands resources within the range of the species.

There are 11 Special Tar Sand Areas in Utah (45 FR 76800, November 20, 1980; 46 FR 6077, January 21, 1981; BLM 2008a, p. 23). Of these, only the San Rafael Swell Special Tar Sands Area occurs within the range of Erigeron maguirei (Clark et al. 2006, p. 9; BLM 2008b, p. 2-49).

Typically, strip mining is the most efficient method of tar sands extraction, but other approaches include the injection of steam or solvents to reduce the oil's viscosity and allow the oil to be pumped out of the well. Erigeron maguirei could be impacted as a result of vegetation clearing, habitat fragmentation, alteration of topography, changes in drainage patterns, erosion, sedimentation from runoff, oil and contaminant spills, fugitive dust, injury or mortality of individual plants, human collection, increased human access, spread of invasive plant species, and air pollution (BLM 2008b, pp. 5-62, 5-84, 5-85, 5-98). In addition, we believe the loss and fragmentation of habitat due to the development of tar sands may negatively impact pollinator species.

Portions of the Erigeron maguirei mapped populations of Calf Canyon, Sids Hole, Secret Mesa, and Link Flats occur within the San Rafael Swell Special Tar Sand Area (Clark et al. 2006, p. 9; BLM 2008b, p. 2-49; BLM 2008d, Map R-23). However, less than 2 percent of the entire species' mapped population areas overlaps lands available for leasing for commercial tar sands development (Clark et al. 2006, p. 9; BLM 2008a, entire; 2008b, p. 2-49). In addition, a substantial amount of suitable habitat for the species occurs throughout the three San Rafael Swell meta-populations that has not been surveyed and may be occupied by E. maguirei, or may provide additional linkage habitats within these meta-populations (Clark et al. 2006, p. 24). Overall, we do not believe that the possible loss or degradation of the small amount of occupied (less than 2 percent) or other suitable habitat would negatively impact the viability of the species.

In summary, we do not anticipate tar sands development to be a threat to Erigeron maguirei in the foreseeable future. There is little overlap between leasable lands and the species' distribution. Based on the small amount of area within the species' range (less than 2 percent) that are available for leasing for commercial tar sands development, we do not anticipate that tar sands development will impact the species as a whole in the foreseeable future.

Oil and gas exploration and development were identified as threats in the Erigeron maguirei listing rule, the Recovery Plan, and the downlisting rule (50 FR 36089, September 5, 1985; USFWS 1995, p. 5; 61 FR 31054, June 19, 1996). Oil and gas development includes exploration, drilling, production, and reclamation phases (Tribal Energy and Environmental Information Clearinghouse 2010, entire). Surface disturbance may occur throughout all phases of oil and gas development (Tribal Energy and Environmental Information Clearinghouse 2010, entire). Impacts to plant species from surface disturbance may include the direct effects of crushing and reduction in seed bank. Indirect effects to plant species include increased dust and airborne particulates (well pad and road construction), increased habitat fragmentation, changes in pollinator-plant interactions, and increased invasive species composition within and adjacent to suitable habitats.

Lands within Capitol Reef National Park are withdrawn from oil and gas exploration and development (see Factor D) (USFS et al. 2006, p. 56). The surrounding BLM and USFS lands are open to oil and gas leasing, but the potential for oil and gas is low in the Navajo Sandstone formation where Erigeron maguirei occurs (USFS et al. 2006, p. 34).

Oil and gas leases that were issued prior to the 2008 BLM Price Field Office RMP are managed under stipulations that were in effect when the leases were issued (BLM 2008c, pp. 24, 170). Leases issued after the RMP was signed will have the appropriate oil and gas lease stipulations and best management practices applied to prevent, minimize, or mitigate resource impacts (BLM 2008c, pp. 31, 40-42, 128, Appendix R-3, Appendix R-14, Map R-8).

On BLM-administered lands, portions of Erigeron maguirei populations occur within the San Rafael Canyon, Interstate 70, Muddy Creek, and Segers Hole ACECs (see Table 2 above) (Clark et al. 2006, pp. 9-11; BLM 2008d, Map R-29). All of these ACECs are open to leasing subject to “no surface occupancy” constraints (BLM 2008c, pp. 135-137). Leasing with “no surface occupancy” means that there will be no development or disturbance whatsoever of the land surface, including establishment of wells or well pads, and construction of roads, pipelines, or powerlines. There are no exceptions to the “no surface occupancy” stipulation within these ACECs (BLM 2008c, Appendix R-3, pp. 1-4). The WSAs with E. maguirei populations, including the Sids Mountain, Devils Canyon, and Muddy Creek WSAs, are unavailable to leasing with the exception of mineral lease uses that existed before or on October 21, 1976; however, there are no active leases within these populations in these WSAs (BLM 2008c, pp. 41, 129, and 131; 2009, entire; Stephens 2009, entire).

While limited exploration has occurred, no known oil or gas fields exist within the known Erigeron maguirei populations, and the potential for development is low (Automated Geographic Reference Center 2001, database; Clark et al. 2006, p. 21; Utah Division of Oil, Gas, and Mining 2006b, Map; USFS et al. 2006, p. 34). The only gas field in the vicinity of E. maguirei is the Last Chance Gas Field located approximately 7 miles (11 kilometers) west of the Segers Hole population and 6 miles (10 kilometers) north of the Deep Creek population (Automated Geographic Reference Center 2001, database; Chidsey et al. 2005, Map 203DM; Clark et al. 2006, p. 16; Utah Division of Oil, Gas, and Mining 2006b, Map). Seven exploratory wells were sited within the mapped E. maguirei Secret Mesa and Coal Wash populations, but all of the wells have been plugged and abandoned (Clark et al. 2006, p. 9; Utah Division of Oil, Gas, and Mining 2006a, database).

Based on the lack of supporting evidence of viable oil and gas fields within the vicinity of Erigeron maguirei and the land management designations that afford protections to the species, oil and gas exploration and development is no longer a threat within the foreseeable future.

Recreational use, including ORVs and human foot traffic, was previously identified as a threat to the species (50 FR 36089, September 5, 1985; USFWS 1995, p. 5; 61 FR 31054, June 19, 1996). At the time of listing, the species was thought to occur primarily in canyon bottoms and was estimated to have a population of seven individuals (50 FR 36089, September 5, 1985). At the time of downlisting, recreation was still a concern due to overall limited abundance (an estimated 3,000 individual plants) (61 FR 31054, June 19, 1996).

Potential impacts from recreational use include trampling and crushing of plants, soil compaction, introduction of exotic species, increased erosion, and increased dust deposition on plants. However, Erigeron maguirei is not prone to human recreational disturbance because it grows primarily in cliff crevices and on the sandstone domes on mesa tops (Clark 2002, p. 16). Of 60 E. maguirei sites in Capitol Reef evaluated for signs of human impacts (Clark 2002, pp. 12-16), only 2 showed signs of human impacts (in both cases foot traffic was observed at the site) (Clark 2002, pp. 12-16).

More than 92 percent of known Erigeron maguirei individuals occur in Capitol Reef National Park, which is closed to ORV use (Clark et al. 2006, p. 16). The Fishlake National Forest prohibits cross-country vehicle travel forest-wide (USFS 2006b, p. 263; 2009, p. 2). E. maguirei habitat does not occur within 0.5 mile (0.8 kilometer) of classified or potentially designated motorized routes on Fishlake National Forest lands (USFS 2006b, pp. 123, 260-263).

Only 6 percent of all known Erigeron maguirei plants occur on lands administered by the BLM. Of these, approximately 89 percent of the mapped population occurs within an ACEC, WSA, or ISA (Kass 1990, p. 23; Clark et al. 2006, p. 18; Ivory 2006; BLM 2008d, Map R-29; Robinson 2010, entire) (see Table 2 above). The ISAs are managed the same as WSAs (see discussion under Factor D below) (BLM 1995, p. 1). The ACECs, ISAs, and WSAs that contain E. maguirei are either closed to motorized vehicles or use is limited to designated roads and trails (Clark et al. 2006, p. 20; BLM 2008c, pp. 132, 135-139, Map R-17).

In summary, we do not believe that recreational use is a threat to the species. The plant's preferred habitat of cliff crevices and domes naturally separates it from most human use areas. In addition, ORV restrictions across much of the species' range reduce the potential for recreational vehicles to impact plants.

Summary of Factor A: Mineral exploration and development and recreational use were listed as threats to Erigeron maguirei in the species' listing rule, the Recovery Plan, and the downlisting rule (50 FR 36089, September 5, 1985; USFWS 1995, p. 5; 61 FR 31054, June 19, 1996). The species occurs predominantly within the Navajo Sandstone formation, which has low potential for oil and gas development and uranium mining (USFS et al. 2006, p. 37). Most mineral resources (like gypsum, tar sands, and oil shale) occur on the periphery of mapped E. maguirei populations and, therefore, are not likely to meaningfully impact any of the populations.

Recreational use, particularly hiking and motorized vehicle use, occurs throughout the species' range. However, land management protections are in place throughout most of the species' range, with the primary result of restricting vehicle use to designated roads and trails, thus minimizing impacts to the plants and their habitat. In addition, we now know ( see Species Information) that Erigeron maguirei grows primarily in crevices and on domes, away from the majority of recreational traffic.

While potential impacts to individuals could occur when either accessing the mineral resources or during recreational use, these activities are considered unlikely to materialize in a meaningful way in the foreseeable future, would be limited to small periphery portions of populations, and therefore would not reduce the long-term viability of any of the populations. In addition, land management designations, which have been discussed briefly in this section and will be discussed later under Factor D, will continue to provide protections for Erigeron maguirei and its habitat in the foreseeable future.

Erigeron maguirei is not a highly collected or sought after species. We know of only one group that propagated E. maguirei for private use by rock garden enthusiasts (USFS et al. 2006, p. 35; Clark 2007, p. 1), but this group is no longer offering plants for sale (Megown 2007, p. 1). Unauthorized plant and seed collection has not been documented for this species (USFS et al. 2006, p. 35). We do not believe overutilization is a current or foreseeable threat to the species.

No diseases are known to impact Erigeron maguirei. Therefore, disease is not a current or foreseeable threat to the species.

At the time of listing, we believed that predation due to cattle grazing (or herbivory) had reduced the species' distribution (50 FR 36089, September 5, 1985; 61 FR 31054, June 19, 1996; Harper and Van Buren 1998, p. 2). At that time, only a few Erigeron maguirei were known to occur at the upper ends of canyons on sandstone ledges or among boulders. Because the species had historically been documented in canyon bottoms, the plants found on ledges and boulders were thought to be remnants within marginal habitats. It was thought that grazing in the canyon bottoms had reduced the distribution of the plant to these marginal habitats (50 FR 36089, September 5, 1985).

However, we now know that Erigeron maguirei plants are much more widely distributed (see Species Information). Preferred habitat includes cliffs, rock crevices, and sandstone domes on mesa tops that are inaccessible to livestock (Kass 1990, p. 27; USFWS 1995, p. 2; Clark 2001, p. 15; Clark et al. 2005, pp. 12, 22, 24; Clark et al. 2006, pp. 21-22; USFS et al. 2006, p. 56).

The majority of Erigeron maguirei populations are thus relatively secure from predation by livestock grazing due to their known habitat preferences (Kass 1990, p. 28; USFWS 1995, p. 5; 61 FR 31054, June 19, 1996). Although 8 of the 10 E. maguirei populations occur within cattle allotments, 7 of these populations are inaccessible to cattle grazing due to terrain conditions (USFS et al. 2006, p. 56). The eighth population is the newly discovered population at Sids Hole. Cattle use a nearby reservoir as a watering hole. Although the area experiences impacts from cattle grazing, this population is persisting without special management considerations that afford it protection from grazing activities. Of the two populations that are not within an allotment, the Waterpocket Fold population in Capitol Reef, estimated at approximately 20,000 individuals on 42 sites, has a history of cattle trailing (USFS et al. 2006, p. 56). Cattle trailing, or moving cattle through the area, occurred at this site about once every 5 years for the past 100 years (Clark et al. 2006, pp. 21, 25). Cattle trailing has impacted, and is expected to continue to impact, only a few individual plants (Clark et al. 2006, pp. 21, 25); however, those impacts are not at a level that effects the species' viability.

In summary, grazing is no longer a threat to the species, nor is it likely to become one within the foreseeable future. The species has a much broader distribution than originally thought, and the plant prefers cliffs, crevices, and sandstone domes on mesa tops that are generally inaccessible to livestock.

Prior to the species' 1985 listing, no Federal or State laws protected Erigeron maguirei (50 FR 36089, September 5, 1985), and its known distribution was limited to Calf Canyon, Utah, and its two side canyons. As previously described, implementation of specific recovery actions and surveys have resulted in and documented many more E. maguirei individuals, sites, and populations than were previously known. Substantial land management protections are in place across the vast majority of the species' range.

Over 99 percent of known Erigeron maguirei plants occur on Federal lands managed by Capitol Reef National Park (more than 92 percent), BLM Price Field Office (6 percent), and Fishlake National Forest (1 percent) (see Table 1 above) (Clark et al. 2006, p. 16). All three of these agencies have land management designations in place that afford the species protection. Less than 1 percent of the known population occurs on lands administered by SITLA, where no protections for E. maguirei exist (Clark et al. 2006, p. 16).

National Parks are administered under the provisions of the Organic Act of 1916 (16 U.S.C. 1, 2, 3, and 4), as amended and supplemented. The Organic Act specifies that the NPS will “promote and regulate the use of the Federal areas known as national parks, monuments, and reservations * * * which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”

As discussed above under Factor A, mineral exploration and development, recreational use, and grazing were listed as threats in the Erigeron maguirei listing rule, the Recovery Plan, and the downlisting rule (50 FR 36089, September 5, 1985; USFWS 1995, p. 5; 61 FR 31054, June 19, 1996). Capitol Reef National Park, which contains more than 92 percent of the Erigeron maguirei individuals, has land management policies in place that afford protection to the species. The 1976 Mining in the Parks Act (16 U.S.C. 1901 et seq. ), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq. ), and the Clean Air Act of 1977, as amended, (42 U.S.C. 7401 et seq . ) provided tools for parks to remove and prevent mining and drilling ventures (NPS 2002, p. 14). All mining claims within Capitol Reef National Park were either declared invalid or were nullified by 1986 (NPS 2002, p. 2). By the end of the 1980s, oil and gas leases were also either eliminated or suspended (NPS 2002, p. 2). All national parks are now closed to new federal mineral leasing (NPS 2006, p. 118). Capitol Reef's 1998 Final General Management Plan Development Concept Plan designates Primitive and Threshold Management Zones within the Park (Capitol Reef 1998, pp. 27-31). All Capitol Reef E. maguirei sites are located within these Management Zones (Clark 2006a, entire). No off-road or off-trail recreational use is allowed within the Park within these zones. In addition, grazing is not allowed within either of these zones (Capitol Reef 1998, pp. 28-31). In order for Capitol Reef National Park lands to be made available for activities that were removed ( i.e., mining and grazing), Congress would have to change the laws which currently govern Capitol Reef National Park.

The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq. ) is the primary Federal law governing most land uses on BLM lands. Section 102(a)(8) of the Federal Land Policy and Management Act states public lands will be managed, in part, to provide protection to ecological and environmental resources. The BLM Manual 6840 directs BLM to manage habitat for sensitive species in a manner that will ensure that all actions authorized, funded, or carried out by the BLM do not contribute to the need for the species to become listed (BLM 2008c, p. 80). Typically, this means the impacts to these species are considered during project planning stages and conservation measures may be included at the discretion of agency biologists.

The BLM's RMPs are the basis for all of its actions and authorizations involving BLM-administered lands and resources. The RMPs establish allowable resource uses, general management practices, program constraints, and other parameters of project design (43 CFR 1601.0-5(n)). These plans provide a framework and programmatic guidance for site-specific activity plans. The approved RMP also incorporates resource protection measures and recommended “Best Management Practices” to maintain, protect, and enhance habitats that will support a diversity of non-listed sensitive fish, wildlife, and plant species (BLM 2008c, p. 34). These measures vary between State and field offices.

The BLM Price Field Office RMP was approved in October 2008 (BLM 2008c). Erigeron maguirei is provided protection from mineral exploration and development, and recreational use, through land use planning decisions in this RMP (BLM 2008c). A total of 6 percent of all E. maguirei populations occur on BLM lands. Of these, approximately 89 percent are within WSAs, ISAs, and/or ACECs (see Table 2 above) (Kass 1990, p. 23; Clark et al. 2005, pp. 16 and 19; Ivory 2006, entire; 2007, entire; BLM 2008d, Map R-28).

On BLM lands, WSAs are managed according to the Interim Management Policy for Lands under Wilderness Review (BLM 1995, entire; BLM 1976, entire) until Congress either designates them into the National Wilderness Preservation System or releases them from wilderness study for other purposes (BLM 1976, p. 1; 2008c, p. 131). The WSAs must be managed so as not to impair their suitability for preservation as wilderness (BLM 1976, p. 2). The WSAs are unavailable to leasing with the exception of mineral lease uses that existed before or on October 21, 1976; however, as discussed under Factor A, there are no active leases within these populations in these WSAs (BLM 2008c, pp. 41, 129, and 131; 2009, entire; Stephens 2009, entire). With the exception of four routes within Sids Mountain WSA, all WSAs are closed to motorized travel (BLM 2008c, pp. 22, 132). All E. maguirei individuals and habitat within these areas will be afforded protection from recreational use.

Although these ACECs were not identified specifically to protect Erigeron maguirei, their associated land use management provides indirect protection for the plant. For example, the San Rafael Canyon, Interstate 70, and Segers Hole ACECs were designated for their scenic values (BLM 2008c, pp. 135, 137, 139); Muddy Creek ACEC was designated for cultural, historic, and scenic values (BLM 2008c, p. 136); and the Lucky Strike ACEC was designated for its historic value (BLM 2008c, p. 141). The management prescriptions for each of these ACECs are discussed below.

The ACECs are open to leasing subject to “no surface occupancy” constraints (BLM 2008c, pp. 135-137). Leasing with “no surface occupancy” means that there will be no development or disturbance whatsoever of the land surface, including establishment of wells or well pads, and construction of roads, pipelines, or powerlines. There are no exceptions to the “no surface occupancy” stipulation within these ACECs (BLM 2008c, Appendix R-3, pp. 1-4). The ACECs also are either closed to OHV use or OHV use is limited to existing routes and trails. Although these ACECs were not specifically designated for protecting E. maguirei, the species will be benefited by the restrictions on surface disturbances (see discussion under Factor A above).

The National Forest Management Act of 1976 (16 U.S.C. 1600 et seq. ) directs national forests to manage habitat to maintain viable populations of existing native and desired nonnative vertebrate species in habitat distributed throughout their geographic range on National Forest System lands (USFS 1976, entire). In 1983, the U.S. Department of Agriculture Departmental Regulation 9500-4 provided further direction to the USFS, expanding the protection requirements of the National Forest Management Act to include plant species (USDA 1983, p. 2).

Erigeron maguirei was not known to occur on USFS lands in 1986. Thus, the existing Fishlake Land Management Plan does not identify E. maguirei as occurring within the National Forest (USFS 1986). E. maguirei was discovered on USFS lands in 1999 (Clark 2010b, p. 1). Less than 1 percent of all known E. maguirei plants occur on USFS lands. Approximately 33 percent of the current mapped range of E. maguirei on USFS lands is designated as a Semi-Primitive Non-Motorized. The Semi-Primitive Non-Motorized designation means that recreational use is limited to non-motorized access, such as hiking or horseback riding. This designation, although not specifically designated for protecting E. maguirei, will benefit the species by limiting recreational use impacts ( see discussion under Factor A above). In December 2006, the Fishlake National Forest finalized their Off-Highway Vehicle Route Designation Project, providing protections for the area in which Erigeron maguirei occurs (USFS 2006a). Under this plan, motorized routes on Fishlake National Forest lands cannot occur within 0.5 mile (0.8 kilometer) of the Deep Creek population (USFS 2006b, pp. 123, 260-263). The Fishlake National Forest prohibits cross-country vehicle travel forest-wide. This prohibition provides protection to E. maguirei from recreational use as described above under Factor A (USFS 2006b, p. 263; 2009, p. 2).

The portion of the species' range owned by SITLA does not have any special management to benefit Erigeron maguirei. The SITLA's mission is to administer their land to provide funding for Utah's educational system and other State beneficiaries (SITLA 2009, p. 4). They do not manage their lands for the conservation benefit of rare species. However, less than 1 percent of known E. maguirei plants occur on SITLA lands ( see Table 2). Known sites on SITLA lands are in suitable habitats adjacent to populations on Federal lands and make up a small portion of known populations (see Table 2). Therefore, we do not believe that the lack of management on SITLA lands is a threat to the species.

Summary of Factor D: We find that regulatory mechanisms related specifically to land management are sufficient for avoiding or mitigating the few potential factors that could impact Erigeron maguirei individuals (population-level impacts are unlikely from any factor), as discussed above under Factors A and C. Federal land management agencies have worked collaboratively since the species' listing to provide for the long-term protection of E. maguirei and its habitat. Land management plans, policies, and regulations providing protection to E. maguirei include: (1) Capitol Reef Primitive and Threshold Management Zones; (2) BLM WSAs, ISAs, and ACECs; and (3) USFS Semi-Primitive Non-motorized designation. These land management designations have adequately protected E. maguirei individuals and habitat in the past, and are expected to continue to do so in the foreseeable future, by limiting and eliminating surface disturbing activities. While less than 1 percent of the species occurs on private land where there are no protections, the species continues to persist in those areas. The threat due to inadequacy of existing regulatory mechanisms is no longer applicable.

The 1985 final listing rule postulated that the genetic viability of Erigeron maguirei was greatly reduced due to the species' small population size, geographic separation, and reproductive isolation (50 FR 36089, September 5, 1985). The June 19, 1996, final rule reclassifying E. maguirei to threatened identified inbreeding and loss of genetic variability as potential threats because of the species' small, reproductively isolated populations (61 FR 31054, June 19, 1996).

As discussed previously, implementation of recovery actions, specifically survey efforts, have increased our knowledge of the species' population status and distribution. We now know that Erigeron maguirei is widely distributed and occurs in much greater numbers than previously thought ( see Species Information). Newly discovered sites indicate that there is substantial habitat and population connectivity across the species' range, thus reducing reproductive isolation and inbreeding threats (50 FR 36089, September 5, 1985; USFWS 1995, p. 5; 61 FR 31054, June 19, 1996; Clark et al. 2006, p. 24; Ivory 2009a, p. 1; 2009b, p. 1; Clark 2010a, p.1; Truman 2010, p. 1; Robinson 2010, entire). For example, populations in the Capitol Reef and San Rafael areas are separated by short distances and connected by contiguous habitat, allowing genetic interchange across the species' range (Van Buren 1993, p. 1; Van Buren and Harper 2002, p. 1; Clark et al. 2006, p. 24). Due to the number of populations and individuals of E. maguirei found and the inter-connectivity of the habitat, the species is no longer considered threatened by a loss of genetic variability.

Pesticide use occurs within Capitol Reef National Park's Fruita Rural Historic District, a cultural area on the National Register of Historic Places (Alston and Tepedino 2005, p. 10). Management includes spraying apple and pear trees with the pesticide Phosmet to control the codling moth ( Cydia pomonella ) (Alston and Tepedino 2005, p. 10). This pesticide does not appear to affect productivity of Erigeron maguirei plants (Alston and Tepedino 2005, pp. 11, 61). No other routine pesticide use is known to occur within the range of E. maguirei. Thus, the best scientific data available indicate the current use of the pesticides is not a threat to E. maguirei.

When the Recovery Plan was written, the demographic stability of the various populations was not known (USFWS 1995, p. 5). Studies have since concluded that Erigeron maguirei is relatively long-lived with low mortality (Van Buren and Harper 2002, p. 2). Furthermore, the available science indicates that the species has the ability to replace individuals at a rate that compensates for mortality (Van Buren and Harper 2002, p. 5). Thus, the available data alleviate the concern for demographic stability.

According to the Intergovernmental Panel on Climate Change (IPCC) (IPCC 2007, p. 2), “[w]arming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level.” Average Northern Hemisphere temperatures during the second half of the 20th century were very likely higher than during any other 50-year period in the last 500 years and likely the highest in at least the past 1,300 years (IPCC 2007, p. 2).

The IPCC (2007, p. 7) predicts that changes in the global climate system during the 21st century will be larger than those observed during the 20th century. For the next 2 decades a warming of about 0.2 °C (0.4 °F) per decade is projected (IPCC 2007, p. 7). Afterward, temperature projections increasingly depend on specific emission scenarios (IPCC 2007, p. 7). Various emissions scenarios suggest that by the end of the 21st century, average global temperatures are expected to increase 0.6 to 4.0 °C (1.1 to 7.2 °F), with the greatest warming expected over land (IPCC 2007, p. 8). The IPCC says it is very likely hot extremes, heat waves, and heavy precipitation will increase in frequency (IPCC 2007, p. 8). However, the confidence in predicting changes in precipitation is less than that for predicting changes in temperature (IPCC 2007, p. 600). The confidence in predicting accurate changes in precipitation levels is further reduced when applying the model to small, localized areas (IPCC 2007, pp. 601, 697). Therefore, although many semi-arid areas like the western United States will suffer a decrease in water resources due to climate change, we cannot be certain at this time how the change will occur over the range of Erigeron maguirei (IPCC 2007, pp. 8, 601, 697). Below we analyze possible impacts, given these uncertainties, to the extent we understand them and are able to reasonably project.

Climate change could potentially impact Erigeron maguirei or its pollinators, although the specific impacts of altered temperature and precipitation regimes are unknown. Rare plants in the Southwest tend to have fewer individuals during drought-related circumstances (Hughes 2009, entire). Long-term demographic monitoring produced conflicting results; some monitoring plots experienced higher mortality rates during drought years while others did not (Van Buren and Harper 2002, pp. 2-6). While we do not know the long-term response of the species to changes in climatic conditions, we believe impacts will be minimal as E. maguirei is a desert plant adapted to hot temperatures and little rainfall based on the life history and habitat requirements of the species. The Interagency Plant Team will continue to monitor the species and be able to identify climate change concerns in the future, if they occur. If additional trend monitoring is warranted past the initial 10-year period to address potential impacts from climate change, monitoring frequency and intensity may be reduced (USFWS 2010, pp. 13-14)).

Two of four Capitol Reef sites monitored between 1992 and 2001 experienced flash flood events (Van Buren and Harper 2002, p. 1). At one site, a flash flood event likely resulted in 48 plants being lost (Van Buren and Harper 2002, p. 2). However, the species is long-lived and shows an ability to replace individuals lost to periodic flooding (Van Buren and Harper 2002, pp. 4-5). The species occurs primarily on sandstone domes on mesa tops and in cracks and crevices of domes and cliffs (Clark et al. 2006, p. 12). The primary habitat of the species is not prone to flooding. Individuals that are susceptible to flooding occur in canyon bottoms, like the two sites mentioned above, which were established from seeds dispersed by wind or overland flow from source populations on the mesa tops (Heil 1989, p. 25; Kass 1990, p. 27; USFWS 1995, p. 2). Flooding may affect these individuals; however, canyon populations are small compared to those on the mesa tops (Heil 1989, p. 25; Kass 1990, p. 27; USFWS 1995, p. 2). Therefore, flood events possessing the potential to meaningfully impact Erigeron maguirei populations are unlikely in the foreseeable future.

Summary of Factor E: Based on the available information, reduced genetic variability, inbreeding posed by geographic separation and reproductive isolation, the use of Phosmet as an insecticide in the Capitol Reef's Fruita Rural Historic District, climate change, and flooding events do not threaten Erigeron maguirei in all or a significant portion of the range currently or within the foreseeable future.

As required by the ESA, we considered the five potential threat factors to assess whether Erigeron maguirei is endangered or threatened throughout all or a significant portion of its range. When considering the listing status of the species, the first step in the analysis is to determine whether the species is in danger of extinction throughout all of its range. If this is the case, then the species is listed or remains listed in its entirety. For instance, if the threats to a species are acting only on a portion of its range, but they are at such a large scale that they place the entire species in danger of extinction, we would list or continue to list the entire species.

We carefully assessed the best scientific and commercial data available and determined there is no information to suggest the species is either in danger of extinction throughout all of its range or likely to become endangered in the foreseeable future throughout all its range. Recovery efforts have identified approximately 162,897 Erigeron maguirei individuals over an estimated range of 390 square miles (1,010 square kilometers) with 10 populations (containing 128 sites) composing 5 meta-populations (see Figure 1 and Table 1 above) (Clark et al. 2006, p. 16; Ivory 2009a, p. 1; 2009b, p. 1; Clark 2010a, p. 1; Truman 2010, p. 1; Robinson 2010, entire). This represents a substantial increase from the time of listing in 1985, when the species was known from 7 individuals in the Calf Canyon population (50 FR 36089, September 5, 1985), and from 1996 when the species was downlisted to threatened and had a population estimate of approximately 3,000 plants (61 FR 31054, June 19, 1996). Today, the species occurs in large, connected, and well-distributed populations within substantial suitable habitat. Current populations appear stable, threats to the species are not likely to impact the species in a meaningful way, and land management protections are in place. We believe the species' long-term viability is assured. Thus, the species is not currently and is not likely to again become endangered or threatened in all of its range.

Having determined that Erigeron maguirei does not meet the definition of endangered or threatened throughout all of its range, we must next consider whether there are any significant portions of its range that are in danger of extinction or are likely to become endangered in the foreseeable future. A portion of a species' range is significant if it is important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species.

Applying the definition described above, we first address whether any portions of the range of Erigeron maguirei warranted further consideration. We evaluated E. maguirei' s range in the context of whether any potential threats are concentrated in one or more areas of the range, such that if there were concentrated impacts, those populations might be threatened, and further, whether any such population might constitute a significant portion of the range. The potential threat factors we evaluated for possible geographic concentration were the most substantial factor(s) affecting the species. In this case, we evaluated mineral exploration and development and recreational use.

We noted that, as discussed above under Factor A, there are several small geographic areas where localized mineral extraction activities remain as a potential threat in the foreseeable future. However, we concluded that these areas do not warrant further consideration because such activities are unlikely to materialize in a meaningful way and if they do, would be limited to small areas on the periphery of populations. Therefore, there is no substantial information that Erigeron maguirei in these areas are likely to become in danger of extinction in the foreseeable future. These areas are too small to impact the viability of the individual populations, meta-populations, or the species.

As discussed above under Factor A, recreational use, particularly hiking and motorized vehicle use, occurs throughout the species' range. However, land management protections are in place throughout most of the species' range, with the primary result of restricting vehicle use to designated roads and trails, thus minimizing impacts to the plants and their habitat. We concluded that impacts from recreational use are not likely to materialize in a meaningful way in the foreseeable future, would be limited to small periphery portions of populations ( e.g., SITLA lands), and would not reduce the long-term viability of any of the populations. Therefore, there is no substantial information that Erigeron maguirei is being impacted in any area to the extent that population is in danger of extinction in the foreseeable future.

In summary, we have determined that none of the existing or potential threats, either alone or in combination with others, are likely to cause Erigeron maguirei to become in danger of extinction within the foreseeable future throughout all or any significant portion of its range. On the basis of this evaluation, we are removing E. maguirei from the List of Endangered and Threatened Plants (50 CFR 17.12).

This rule will revise 50 CFR 17.12(h) to remove Erigeron maguirei from the List of Endangered and Threatened Plants. Because no critical habitat was ever designated for this species, this rule will not affect 50 CFR 17.96. Once this species is removed from the List of Endangered and Threatened Plants, ESA protection will no longer apply. Removal of E. maguirei from the List of Endangered and Threatened Plants will relieve Federal agencies from the need to consult with us to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of this species. Delisting E. maguirei is expected to have positive effects in terms of management flexibility for the State and Federal governments. Federal agencies will continue to implement management plans to conserve E. maguirei and its habitat.

Section 4(g)(1) of the ESA requires us to monitor for at least 5 years species that are delisted due to recovery. Post-delisting monitoring refers to activities undertaken to verify that a species delisted due to recovery remains secure from the risk of extinction after the protections of the ESA no longer apply. The primary goal of post-delisting monitoring is to monitor the species so that its status does not deteriorate, and if a decline is detected, to take measures to halt the decline so that proposing it as endangered or threatened is not again needed. If at any time during the monitoring period, data indicate that protective status under the ESA should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

Section 4(g) of the ESA explicitly requires cooperation with the States in development and implementation of post-delisting monitoring programs. In early 2007, we asked the State of Utah to be a cooperator in post-delisting monitoring. In a letter dated March 6, 2007, the State suggested their participation in post-delisting monitoring was unnecessary (Harja 2007). We agree with the State's conclusion as the vast majority of the known individual plants (over 99 percent) occur on Federal land.

We have finalized a Post-Delisting Monitoring Plan (Plan) for Erigeron maguirei (USFWS 2010, entire). The Plan: (1) Summarizes the species' status at the time of delisting; (2) defines thresholds or triggers for potential monitoring outcomes and conclusions; (3) lays out frequency and duration of monitoring; (4) articulates monitoring methods including sampling considerations; (5) outlines data compilation and reporting procedures and responsibilities; and (6) depicts a post-delisting monitoring implementation schedule, including timing and responsible parties. The Plan was modeled after the Conservation Strategy and incorporated the Maguire Daisy Survey Protocol developed and tested by the Interagency Rare Plant Team (Clark 2006b, entire).

Although section 4(g)(1) of the ESA requires us to monitor the species for a period of only 5 years, signatories to the Plan have committed to monitor the species for a period of at least 10 years. After 10 years of monitoring following protocols stated in the Plan, all available data on this species will be reviewed to determine whether there are any data gaps that need to be addressed. If significant data gaps are found, the Interagency Rare Plant Team will recommend to USFWS management whether demographic monitoring or additional population trend monitoring would be valuable.

We have determined that an Environmental Assessment or an Environmental Impact Statement, as defined under the authority of the NEPA of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the ESA. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

The OMB regulations at 5 CFR part 1320 implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). The OMB regulations at 5 CFR 1320.3(c) define a collection of information as the obtaining of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, 10 or more persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that “ten or more persons” refers to the persons to whom a collection of information is addressed by the agency within any 12-month period. For purposes of this definition, employees of the Federal government are not included. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule does not contain any collections of information that require approval by OMB under the Paperwork Reduction Act. As proposed under the Post-Delisting Monitoring section above, Erigeron maguirei populations will be monitored by Capitol Reef, Fishlake National Forest, and the BLM Price field office in accordance with the Conservation Strategy. We do not anticipate a need to request data or other information from 10 or more persons during any 12-month period to satisfy monitoring information needs. If it becomes necessary to collect information from 10 or more non-Federal individuals, groups, or organizations per year, we will first obtain information collection approval from the OMB.

On May 18, 2001, the President issued an Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. As this rule is not expected to significantly affect energy supplies, distribution, or use, this action is not a significant energy action and no Statement of Energy Effects is required.

A complete list of all references cited in this document is available upon request from the Field Supervisor, Utah Field Office ( see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this document are staff members located at the Utah Field Office, U.S. Fish and Wildlife Service, West Valley City, Utah ( see FOR FURTHER INFORMATION CONTACT ).

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2011 TAC of sculpins, sharks, squid, and octopus in the GOA is 4,500 metric tons (mt) as established by the final 2010 and 2011 harvest specifications for groundfish of the GOA (75 FR 11749, March 12, 2010).

In accordance with § 679.20(d)(1)(i) and (d)(1)(ii)(B), the Regional Administrator has determined that the 2011 TAC of sculpins, sharks, squid and octopus in the GOA will be taken as incidental catch in directed fishing for other species. Therefore, the Regional Administrator is establishing a directed fishing allowance for sculpins, sharks, squid and octopus of 0 mt. In accordance with 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for sculpins, sharks, squid and octopus in the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of sculpins, sharks, squid, and octopus in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 12, 2011.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The A season allowance of the 2011 Pacific cod sideboard limit established for non-AFA crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA is 835 metric tons (mt), as established by the final 2010 and 2011 harvest specifications for groundfish of the GOA (75 FR 11749, March 12, 2010) and inseason adjustment (76 FR 469, January 5, 2011).

In accordance with § 680.22(e)(2)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2011 Pacific cod sideboard limit established for non-AFA crab vessels harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a sideboard directed fishing allowance of 825 mt, and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by non-AFA crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the sideboard directed fishing closure of Pacific cod for non-AFA crab vessels that are subject to sideboard limits harvesting Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 12, 2011.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 680.22 and is exempt from review under Executive Order 12866.