Under the Animal Health Protection Act (7 U.S.C. 8301 et seq. ), the Secretary of Agriculture may prohibit the importation of any animal or article if the Secretary determines that the prohibition is necessary to prevent the introduction into or dissemination within the United States of any pest or disease of livestock.

Pursuant to this Act, the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) regulates the importation of animals and animal products into the United States to guard against the introduction of animal diseases not currently present or prevalent in this country. The regulations in 9 CFR part 94 (referred to below as the regulations) prohibit or restrict the importation of specified animals and animal products to prevent the introduction into the United States of various animal diseases, including rinderpest and foot-and-mouth disease (FMD). These are dangerous and destructive communicable diseases of ruminants and swine.

Section 94.1 of the regulations lists regions of the world that are declared free of rinderpest and FMD. Section 94.11 lists regions that have been determined to be free of rinderpest and FMD, but that are subject to certain restrictions because of their proximity to or trading relationships with rinderpest- or FMD-affected regions.

In a final rule effective and published in the Federal Register on May 29, 2003 (68 FR 31940-31949, Docket No. 02-109-3), we amended the regulations to authorize the importation of fresh beef from Uruguay, a region of the world that we do not recognize as free of FMD, under certain conditions. Those conditions, found in § 94.22 of the regulations, require that the meat come from bovines that have been born, raised, and slaughtered in Uruguay, that the bovines have not been exposed to FMD on their premises of origin or through contact with bovines from other premises, that the bovines are subject to inspections and processing designed to detect FMD and remove potentially affected body parts, that the beef is subject to a maturation process designed to deactivate the FMD virus, that Uruguay is free of FMD for a year prior to the export of the beef, and that the beef has not come in contact with meat from FMD-affected regions.

In 2006, Uruguay's Ministry of Livestock, Agriculture, and Fisheries (MGAP) submitted information to APHIS in support of their request that we amend the regulations to allow the importation of fresh ovine meat into the United States.

In response to this request, APHIS prepared a risk assessment, which can be viewed on the Internet on the Regulations.gov Web site or in our reading room. 1 This assessment pays close attention, in particular, to the role sheep played in the last outbreak of FMD in Uruguay in 2001, and the likelihood that FMD has been introduced into the domestic ovine population within the country since that time. In addition, as part of our evaluation of the risks associated with Uruguay's request, APHIS conducted a site visit in Uruguay in March 2007.

Based on the risk assessment and the site visit, we have determined that it is not necessary to prohibit the importation of fresh (chilled or frozen) ovine meat from Uruguay, provided certain requirements, similar to those described above for fresh beef and discussed later in this document, are met. These requirements would be nearly identical to the existing requirements for the importation of beef; hence we are proposing to revise § 94.22 to authorize the importation of both beef and ovine meat from Uruguay into the United States.

There are several risk factors associated with the importation of ovine meat from Uruguay. We discuss our proposed mitigation measures for these risk factors in the following paragraphs.

Currently, paragraph (a) of § 94.22 requires that beef from Uruguay must come from bovines that have been born, raised, and slaughtered in Uruguay. Likewise, paragraph (h) of § 94.22 currently requires that beef from Uruguay not have been in contact with meat from regions other than those listed in § 94.1(a)(2), which lists regions declared to be free of both rinderpest and FMD. We would subject ovine meat from Uruguay to these same requirements. As documented in our assessment, Brazil and Argentina, countries that border Uruguay, both experienced outbreaks of FMD as recently as 2006, and FMD is under control, but endemic, in the region of South America surrounding Uruguay.

Currently, paragraph (b) of § 94.22 requires that FMD not have been diagnosed in Uruguay within the previous 12 months before beef from Uruguay is exported to the United States. We would amend the paragraph so that it would state that, if FMD is detected anywhere in Uruguay, the export of beef and ovine meat from all of Uruguay to the United States is prohibited until at least 12 months have elapsed since the depopulation, cleaning, and disinfection of the last infected premises. The current provision could be construed to state that the 12 month prohibition begins following diagnosis of the last affected animal during an outbreak, while eradication, cleaning, and disinfection efforts are still ongoing. This is not the case; it is APHIS' policy that the 12 month prohibition begins only after all “stamping out” efforts cease.

Paragraph (c) of § 94.22 currently requires that beef from Uruguay exported to the United States come from bovines that originated from premises where FMD has not been present during the lifetime of any bovines slaughtered for the export of beef to the United States. We would modify paragraph (c) so that it would pertain to both bovines and sheep. This measure is necessary because sheep that have been exposed to FMD on their premises of origin pose an unacceptably high risk of spreading the disease.

Paragraph (d) of § 94.22 currently requires that beef from Uruguay come from bovines that were moved directly from the premises of origin to the slaughtering establishment without any contact with other animals. We would also subject ovine meat from Uruguay to this requirement, which addresses the risk of cattle or sheep coming into contact with or commingling during transit to slaughter with animals from regions in which FMD is known to exist, or that have not been evaluated by APHIS with regard to their FMD status.

Paragraph (e) of § 94.22 currently requires that beef from Uruguay come from bovines that received ante- and post-mortem veterinary inspections, paying particular attention to the head and feet, at the slaughtering establishment, with no evidence found of vesicular disease. Because FMD has a short incubation period, if animals were infected with FMD at a premises of origin, it is likely that lesions would be visible in at least a few of those animals at the slaughtering establishment prior to slaughter. Similarly, post-mortem inspection of carcasses would be likely to identify any lesions and vesicles in animals infected with FMD. Since the lesions associated with FMD occur primarily on the feet and in the mouth, particular attention must be paid to the head and feet during these inspections. Because ante- and post-mortem inspections are effective in reducing disease risk, we are proposing to also require ante- and post-mortem inspections for sheep slaughtered for the export of fresh (chilled or frozen) ovine meat from Uruguay to the United States.

Paragraph (f) of § 94.22 currently requires that beef from Uruguay consist only of bovine parts that are, by standard practice, part of the animal's carcass that is placed in a chiller for maturation after slaughter. Accordingly, the paragraph prohibits the importation of all parts of bovine heads, feet, hump, hooves, or internal organs.

We would apply this requirement to ovine meat from Uruguay, and would therefore authorize the importation into the United States only of ovine parts that are, by standard practice, part of the animal's carcass that is placed in a chiller for maturation after slaughter. As a result, we would continue to prohibit the importation of ovine heads, feet, hooves, and internal organs into the United States; sheep have no humps.

While portions of a sheep's head, feet, hooves, and internal organs may reach the necessary pH level to inactivate the FMD virus during the required maturation process ( see the section below titled “Maturation Process”), these items can contain lymph tissue, depot fat, and blood clots that may potentially harbor active FMD virus, even after that process; hence the need for this requirement.

Paragraph (g) of § 94.22 currently requires all bone and visually identifiable blood clots and lymphoid tissue to be removed from beef from Uruguay prior to export to the United States. We would subject ovine meat from Uruguay to this same requirement.

The removal of bones and visually identifiable blood clots is necessary because any FMD virus these parts might potentially harbor may not be inactivated by the maturation process described later in this document. Although we consider the removal of these parts to be necessary, we recognize that meat may contain small portions of blood clots or lymphoid tissue that are not visually identifiable as such. Because such small parts are unlikely to harbor any FMD virus that is not inactivated by the maturation process, and because we recognize that it would be difficult, if not impossible, to remove parts of blood clots or lymphoid tissue that are not recognizable as such, we have specified that all visually identifiable blood clots and lymphoid tissue would have to be removed.

Paragraph (i) of § 94.22 currently requires that beef from Uruguay come from bovine carcasses that were allowed to maturate at 40 to 50 °F (4 to 10 °C) for a minimum of 36 hours after slaughter and that reached a pH of 5.8 or less in the loin muscle at the end of the maturation period. It further states that measurement of the pH must be taken at the middle of both longissimus dorsi muscles. Finally, it provides that any carcass in which the pH does not reach 5.8 or less may be allowed to maturate an additional 24 hours and be retested, and states that, if the carcass still has not reached a pH of 5.8 or less after 60 hours, the meat from the carcass may not be exported to the United States. These requirements are based on the fact that the FMD virus in meat is inactivated by acidification, which occurs naturally during maturation. An acid environment of a pH of 5.8 or less destroys the virus quickly. Accordingly, we would subject ovine meat from Uruguay to these same requirements.

Paragraph (j) of § 94.22 currently requires that an authorized veterinary official of the Government of Uruguay certify on the foreign meat inspection certificate that the conditions for importation of the beef have been met. Similarly, paragraph (k) currently requires that the establishment in which the bovines are slaughtered allow periodic APHIS inspection of their facilities, records, and operations. We would subject ovine meat from Uruguay to these requirements. We believe that, in the great majority of cases, certification by an authorized veterinary official of Uruguay will be sufficient verification that the ovine meat has met the conditions for importation into the United States. However, because of the possibility of occasional differing interpretations of the regulations, we consider it advisable to have provisions within the regulations enabling APHIS representatives to have access to slaughtering establishments for periodic inspections.

Finally, we note that, in addition to the above provisions, any ovine meat imported from Uruguay would have to meet the additional certification requirements under § 94.11(c). That paragraph prohibits the export-approved slaughter establishment from receiving FMD-susceptible animals or animal products that originated, transported, or commingled with animals or animal products from regions that APHIS does not consider as FMD-free.

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

We are proposing to amend the regulations governing the importation of certain animals, meat, and other animal products by allowing, under certain conditions, the importation of fresh (chilled or frozen) ovine meat from Uruguay. Based on the evidence in a recent risk assessment, we believe that fresh (chilled or frozen) ovine meat can be safely imported from Uruguay provided certain conditions are met.

We have prepared an economic analysis for this proposed rule. The analysis, which considers the number of and type of entities that are likely to be affected by this action and the potential economic effects on those entities, provides the basis for the Administrator's determination that this action would not have a significant impact on a substantial number of small entities. The economic analysis may be viewed on the Regulations.gov Web site ( see ADDRESSES above for instructions for accessing Regulations.gov). Copies of the economic analysis are also available from the person listed under FOR FURTHER INFORMATION CONTACT .

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) No retroactive effect will be given to this rule and (2) administrative proceedings will not be required before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2008-0085. Please send a copy of your comments to: (1) Docket No. APHIS-2008-0085, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

We are proposing to amend the regulations governing the importation of certain animals, meat, and other animal products to allow, under certain conditions, the importation of fresh (chilled or frozen) ovine meat from Uruguay. This action would provide for the importation of ovine meat from Uruguay into the United States, while continuing to protect the United States against the introduction of foot-and-mouth disease. Under the proposed regulations, APHIS would collect information, provided by an authorized certifying official of the Government of Uruguay, certifying that specific conditions for importation have been met.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 1.6 hours per response.

Respondents: Animal health officials of the government of Uruguay.

Estimated annual number of respondents: 5.

Estimated annual number of responses per respondent: 1.

Estimated annual number of responses: 5.

Estimated total annual burden on respondents: 8 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

To provide the public with documentation of APHIS' review and analysis of any potential environmental impacts associated with allowing the importation of ovine meat from Uruguay into the United States, we have prepared an environmental assessment. The environmental assessment was prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq. ), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment may be viewed on the Internet on the Regulations.gov Web site and is available for public inspection in our reading room. (Instructions for accessing Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this proposed rule.) In addition, copies may be obtained by calling or writing to the individual listed under FOR FURTHER INFORMATION CONTACT .

Accordingly, we are proposing to amend 9 CFR Part 94 as follows:

Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site, http://www.regulations.gov . Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and, therefore, they should not include any information in their comments that they do not want publicly disclosed.

You can access publicly available documents related to this document using the following methods:

NRC's Public Document Room (PDR): The public may examine and have copied for a fee publicly available documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

NRC's Agencywide Documents Access and Management System (ADAMS): Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html . From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to PDR.Resource@nrc.gov .

Federal Rulemaking Web Site: Public comments and supporting materials related to this proposed rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2010-0131.

Documents that are not publicly available because they are considered to be either SUNSI (including SUNSI constituting proprietary information (PI)) or SGI may be available to interested persons who may wish to comment on the proposed design certification amendment. Interested persons shall follow the procedures described in the Supplementary Information section of this document, Section VII, “Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Preparation of Comments on the Proposed Amendment to the AP1000 Design Certification.”

Title 10 of the Code of Federal Regulations (10 CFR), part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants,” subpart B, presents the process for obtaining standard design certifications. Section 52.63, “Finality of standard design certifications,” provides criteria for determining when the Commission may amend the certification information for a previously certified standard design in response to a request for amendment from any person.

During its initial certification of the AP1000 design, the NRC issued a final safety evaluation report (FSER) for the AP1000 as NUREG-1793, “Final Safety Evaluation Report Related to Certification of the AP1000 Standard Design,” in September 2004. From March 2006 through May 2007, NuStart Energy Development, LLC (NuStart)  1 and Westinghouse provided the NRC with a number of technical reports (TRs) for pre-application review in an effort to: (1) Close specific, generically applicable COL information items (information to be supplied by COL applicants/holders) in the AP1000 certified standard design; (2) identify standard design changes resulting from the AP1000 detailed design efforts; and (3) provide specific standard design information in areas or for topics where the AP1000 DCD was focused on the design process and acceptance criteria. TRs typically addressed a topical area ( e.g., redesign of a component, structure or process) and included the technical details of a proposed change, design standards, analyses and justifications as needed, proposed changes to the DCD, and Westinghouse's assessment of the applicable regulatory criteria (e.g. the assessment of the criteria in 10 CFR part 52, Appendix D, Section VIII, “Processes for Changes and Departures”). The NRC identified issues associated with the TRs and engaged Westinghouse in requests for additional information and meetings during the pre-application phase to resolve them.

On May 26, 2007, Westinghouse submitted Revision 16 (ADAMS Accession No. ML071580939) of its application via transmittal letter (ADAMS Accession No. ML071580757) to amend the AP1000 design certification. This application was supplemented by letters dated October 26, November 2, and December 12, 2007, and January 11 and January 14, 2008. The application noted, in part:

In Attachment 2 to the May 26, 2007, application, Westinghouse identified the criteria of 10 CFR 52.63(a)(1) that apply to the changes described in each TR and associated COL information items, if applicable.

On January 18, 2008, the NRC notified Westinghouse that it accepted the May 26, 2007, application, as supplemented, for docketing (Docket No. 52-006) and published a notice of acceptance (ADAMS Accession No. ML073600743) in the Federal Register (73 FR 4926, January 28, 2008). On September 22, 2008, Westinghouse submitted Revision 17 to the AP1000 DCD. Revision 17 contains changes to the DCD that have been previously accepted by the NRC in the course of its review of Revision 16 of the DCD. In addition, Revision 17 proposes changes to DAC in the areas of piping design (Chapter 3), instrumentation and control (I&C) systems (Chapter 7) and human factors engineering (HFE) (Chapter 18). Revision 17 also includes a number of design changes not previously discussed with the NRC.

The NRC issued guidance on the finalization of design changes in Interim Staff Guidance (ISG) DC/COL-ISG-011, “Finalizing Licensing-basis Information,” (ADAMS Accession No. ML092890623), which describes various categories of design changes that should not be deferred and those that should be included in the DCR.

By letter dated January 20, 2010, Westinghouse submitted a list of design change packages that would be included in Revision 18 of the AP1000 DCD (ADAMS Accession No. ML100250888). A number of subsequent submittals were made by Westinghouse to narrow the focus to those design changes to the categories of changes that should not be deferred, as recommended by DC/COL-ISG-011.

Revision 18 to the AP1000 DCD (ADAMS Accession No. ML103480572) was submitted on December 1, 2010, and contains both proposed changes previously described in the design change packages and changes already accepted by the NRC in the review process of Revision 17 to the AP1000 DCD. In the course of the review of both design change packages, the NRC determined that DCD changes were needed. In response to NRC questions, Westinghouse proposed such changes. Once the NRC was satisfied with these DCD markups, they were documented in the safety evaluation report (SER) as confirmatory items (CIs). The CIs were first identified during the NRC's review of Revision 17 of the AP1000 DCD. With the review of Revision 18, the NRC will confirm that Westinghouse has made those changes to the DCD accepted by the NRC that were not addressed in Revision 17 to the AP1000 DCD. The use of CIs is restricted to cases where the NRC has reviewed and approved specific design control document proposals. For the final rule, the NRC will complete the review of the CIs and prepare a FSER reflecting that action. The CIs are closed based upon an acceptable comparison between the revised DCD text and the text required by the CI. No technical review of Revision 18 by the NRC is necessary, because only CIs and design changes pursuant to DC/COL-ISG-011 previously accepted by the NRC are contained in Revision 18 to the DCD.

In order to simplify the NRC's review of the design change documentation, and to simplify subsequent review by the NRC's Advisory Committee on Reactor Safeguards (ACRS), the design changes pursuant to DC/COL-ISG-011 are reviewed in a separate chapter (Chapter 23) of the FSER. This chapter indicates which areas of the DCD are affected by each design change and the letters from Westinghouse that submitted them. In some cases, NRC's review of the design changes reviewed in Chapter 23 may be incorporated into the chapters of the FSER where this material would normally be addressed because of the relationship between individual design changes and the review of prior DCD changes from Revisions 16 and 17 of the DCD.

The Westinghouse Revision 18 letter includes an enclosure providing a cross-reference to the DCD changes and the applicable 10 CFR 52.63(a)(1) criteria. Revision 17 provides a similar cross-reference in the September 22, 2008, Westinghouse letter for those changes associated with the revised DCD. Revision 16 on the other hand, uses TRs to identify the DCD changes and lists the corresponding applicable 10 CFR 52.63(a)(1) criteria via Westinghouse memorandum, dated May 26, 2007 (Table 1).

As of the date of this document, the application for amendment of the AP1000 design certification has been referenced in the following COL applications:

Vogtle, Units 3 and 4, Docket No. 05200025/6, 73 FR 33118;

Bellefonte Nuclear Station, Units 3 and 4, Docket Nos. 05200014/5, 73 FR 4923;

Levy County, Units 1 and 2, Docket Nos. 05200029/30, 73 FR 60726;

Shearon Harris, Units 2 and 3, Docket Nos. 05200022/3, 73 FR 21995;

Turkey Point, Units 6 and 7, Docket Nos. 05200040/1, 74 FR 51621;

Virgil C. Summer, Units 2 and 3, Docket Nos. 05200027/8, 73 FR 45793;

William States Lee III, Units 1 and 2, Docket Nos. 05200018/9, 73 FR 11156.

Westinghouse's request to amend the AP1000 design contained several classes of changes. Each class is discussed below:

Westinghouse requested changes to the AP1000 DCD to correct spelling, punctuation, grammar, designations, and references. None of these changes is intended to make any substantive changes to the certified design, and NUREG-1793, “Final Safety Evaluation Report Related to Certification of the AP1000 Standard Design,” Supplement 2 (SER) does not address these changes.

Westinghouse requested changes to the AP1000 DCD to achieve consistency and uniformity in the description of the certified design throughout the DCD. For example, a change to the type of reactor coolant pump (RCP) motor is evaluated in Chapter 5 of the SER on the application for the AP1000 amendment; Westinghouse requested that wherever this RCP motor is described in the DCD, the new description of the changed motor be used. The NRC reviewed the proposed change (to be used consistently throughout the DCD) to ensure that the proposed changes needed for uniformity and consistency are technically acceptable and do not adversely affect the previously approved design description. The NRC's bases for approval of these changes are set forth in the SER for the AP1000 amendment.

Among the many technical changes that are proposed by Westinghouse for inclusion in Revision 18 of the AP1000 DCD, the NRC selected 15 substantive changes for specific discussion in this proposed rule document, based on their safety significance:

• Removal of Human Factors Engineering (HFE) Design Acceptance Criteria (DAC) from the DCD

• Change to Instrumentation and Control (I&C) DAC and Inspection, Test, Analysis, and Acceptance Criteria (ITAAC)

• Minimization of Contamination

• Extension of Seismic Spectra to Soil Sites and Changes to Stability and Uniformity of Subsurface Materials and Foundations

• Long-Term Cooling

• Control Room Emergency Habitability System

• Changes to the Component Cooling Water System (CCWS)

• Changes to I&C Systems

• Changes to the Passive Core Cooling System (PCCS)—Gas Intrusion

• Integrated Head Package (IHP)—Use of the QuickLoc Mechanism

• Reactor Coolant Pump Design

• Reactor Pressure Vessel (RPV) Support System

• Spent Fuel Pool (SFP) Decay Heat Analysis and Associated Design Changes

• Spent Fuel Rack Design and Criticality Analysis

• Vacuum Relief System

The NRC evaluated each of the proposed changes and concluded that they are acceptable. The NRC's bases for approval of these changes are set forth in the SER for the AP1000 amendment. Further information about how each of these changes is provided in Section XIV, “Backfitting,” of this document.

Westinghouse requested changes to the AP1000 design in order to comply with the requirements of the AIA rule, 10 CFR 50.150. The NRC confirmed that Westinghouse has adequately described key AIA design features and functional capabilities in accordance with the AIA rule and conducted an assessment reasonably formulated to identify design features and functional capabilities to show, with reduced use of operator action, that the facility can withstand the effects of an aircraft impact. In addition, the NRC determined that there will be no adverse impacts from complying with the requirements for consideration of aircraft impacts on conclusions reached by the NRC in its review of the original U.S. AP1000 design certification. The NRC's bases for approval of these changes are set forth in the SER for the AP1000 amendment. As a result of these changes, the AP1000 design will achieve the Commission's objectives of enhanced public health and safety and enhanced common defense and security through improvement of the facility's inherent robustness to the impact of a large commercial aircraft at the design stage.

The purpose of Section III is to describe and define the scope and contents of this design certification and to present how documentation discrepancies or inconsistencies are to be resolved. Paragraph A is the required statement of the Office of the Federal Register (OFR) for approval of the incorporation by reference of Tier 1, Tier 2, and the generic technical specifications (TSs) into this appendix. The NRC is proposing to update the revision number of the DCD that would be incorporated by reference to the revision Westinghouse provided to the NRC in its application for amendment to this DCR.

The legal effect of incorporation by reference is that the incorporated material has the same legal status as if it were published in the Code of Federal Regulations. This material, like any other properly issued regulation, has the force and effect of law. The AP1000 DCD was prepared to meet the technical information contents of application requirements for design certifications under 10 CFR 52.47(a) and the requirements of the OFR for incorporation by reference under 10 CFR part 51. One requirement of the OFR for incorporation by reference is that the applicant for the design certification (or amendment to the design certification) makes the generic DCD available upon request after the final rule becomes effective. Therefore, paragraph A would identify a Westinghouse representative to be contacted to obtain a copy of the AP1000 DCD. The NRC is proposing to update the Westinghouse representative's contact information in this DCR.

The AP1000 DCD is electronically accessible under ADAMS Accession No. ML103480572, at the OFR, and at http://www.regulations.gov by searching under Docket ID NRC-2010-0131. Copies of the generic DCD would also be available at the NRC's PDR. Questions concerning the accuracy of information in an application that references this appendix will be resolved by checking the master copy of the generic DCD in ADAMS. If the design certification amendment applicant makes a generic change (through NRC rulemaking) to the DCD under 10 CFR 52.63 and the change process provided in Section VIII, then at the completion of the rulemaking the NRC would request approval of the Director, OFR, for the revised master DCD. The NRC would require that the design certification amendment applicant maintain an up-to-date copy of the master DCD under paragraph A.1 in Section X and that it include any generic changes made.

The NRC is also proposing a change to paragraph D. Paragraph D establishes the generic DCD as the controlling document in the event of an inconsistency between the DCD and the design certification application or the FSER for the certified standard design. The proposed revision would renumber paragraph D as paragraph D.1, clarify this requirement as applying to the initial design certification, and add a similar paragraph D.2 to indicate that this is also the case for an inconsistency between the generic DCD and the amendment application and the NRC's associated FSER for the amendment.

Section IV presents additional requirements and restrictions imposed upon an applicant who references Appendix D to 10 CFR part 52. Paragraph A presents the information requirements for these applicants. Paragraph A.3 currently requires the applicant to include, not simply reference, the PI and SGI referenced in the AP1000 DCD, or its equivalent, to ensure that the applicant has actual notice of these requirements. The NRC is proposing to revise paragraph A.3 to indicate that a COL applicant must include, in the plant-specific DCD, the SUNSI (including PI) and SGI referenced in the AP1000 DCD. This revision would address a wider class of information (SUNSI) to be included in the plant-specific DCD, rather than limiting the required information to PI. The requirement to include SGI in the plant-specific DCD would not change.

The NRC is also proposing to add a new paragraph A.4 to indicate requirements that must be met in cases where the COL applicant is not using the entity that was the original applicant for the design certification (or amendment) to supply the design for the applicant's use. Proposed paragraph A.4 would require that a COL applicant referencing Appendix D to 10 CFR part 52 include, as part of its application, a demonstration that an entity other than Westinghouse is qualified to supply the AP1000 certified design unless Westinghouse supplies the design for the applicant's use. In cases where a COL applicant is not using Westinghouse to supply the AP1000 certified design, this information is necessary to support any NRC finding under 10 CFR 52.73(a) that the entity is qualified to supply the certified design.

The purpose of Section V is to specify the regulations applicable and in effect when the design certification is approved (i.e., as of the date specified in paragraph A, which will be the date that the proposed revisions to Appendix D are approved by the Commission and the final rule is signed by the Secretary of the Commission). The NRC is proposing to redesignate paragraph A as paragraph A.1 to indicate that this paragraph applies to that portion of the design that was certified under the initial design certification. The NRC is further proposing to add new paragraph A.2, similar to that of paragraph A.1, to indicate the regulations that would apply to that portion of the design within the scope of this amendment, as would be approved by the Commission and signed by the Secretary of the Commission.

The purpose of Section VI is to identify the scope of issues that were resolved by the Commission in the original certification rulemaking, and, therefore, are “matters resolved” within the meaning and intent of 10 CFR 52.63(a)(5). Paragraph B presents the scope of issues that may not be challenged as a matter of right in subsequent proceedings and describes the categories of information for which there is issue resolution. Paragraph B.1 provides that all nuclear safety issues arising from the Atomic Energy Act of 1954 (the Act), as amended, that are associated with the information in the NRC's final safety evaluation report related to certification of the AP1000 standard design (ADAMS Accession No. ML103260072) and the Tier 1 and Tier 2 information and the rulemaking record for Appendix D to 10 CFR part 52, are resolved within the meaning of 10 CFR 52.63(a)(5). These issues include the information referenced in the DCD that are requirements (i.e., “secondary references”), as well as all issues arising from PI and SGI, which are intended to be requirements. Paragraph B.2 provides for issue preclusion of PI and SGI.

The NRC is proposing to revise paragraph B.1 to extend issue resolution to the information contained in the NRC's FSER (Supplement No. 2) and the rulemaking record for this amendment. In addition, the NRC is proposing to revise paragraph B.2 to extend issue resolution to the broader category of SUNSI, including PI, referenced in the generic DCD.

The NRC is also proposing to revise paragraph B.7, which identifies as resolved all environmental issues concerning severe accident mitigation design alternatives (SAMDA) arising under the National Environmental Policy Act of 1969 (NEPA) associated with the information in the NRC's final EA for the AP1000 design and Appendix 1B of the generic DCD (Revision 15) for plants referencing Appendix D to 10 CFR part 52 whose site parameters are within those specified in the SAMDA evaluation. The NRC is proposing to revise this paragraph to identify as also resolved all environmental issues concerning SAMDA associated with the information in the NRC's final EA for this amendment and Appendix 1B of Revision 18 of the generic DCD for plants referencing Appendix D to 10 CFR part 52 whose site parameters are within those specified in the SAMDA evaluation.

Finally, the NRC is proposing to revise paragraph E, which provides the procedure for an interested member of the public to obtain access to SUNSI (including PI) and SGI for the AP1000 design in order to request and participate in proceedings, as identified in paragraph B, involving licenses and applications that reference Appendix D to 10 CFR part 52. The NRC is proposing to replace the current information in this paragraph with a statement that the NRC will specify at an appropriate time the procedure for interested persons to review SGI or SUNSI (including PI) for the purpose of participating in the hearing required by 10 CFR 52.85, the hearing provided under 10 CFR 52.103, or in any other proceeding relating to Appendix D to 10 CFR part 52 in which interested persons have a right to request an adjudicatory hearing. The NRC expects to follow its current practice of establishing the procedures by order when the notice of hearing is published in the Federal Register . ( See, e.g., Florida Power and Light Co, Combined License Application for the Turkey Point Units 6 and 7, Notice of Hearing, Opportunity To Petition for Leave To Intervene and Associated Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation (75 FR 34777; June 18, 2010); Notice of Receipt of Application for License; Notice of Consideration of Issuance of License; Notice of Hearing and Commission Order and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation; In the Matter of AREVA Enrichment Services, LLC (Eagle Rock Enrichment Facility) (74 FR 38052; July 30, 2009).

In the four currently approved design certifications (10 CFR part 52, Appendices A through D), paragraph E presents specific directions on how to obtain access to PI and SGI on the design certification in connection with a license application proceeding referencing that DCR. The NRC is proposing this change because these provisions were developed before the terrorist events of September 11, 2001. After September 11, 2001, Congress changed the statutory requirements governing access to SGI, and the NRC revised its rules, procedures, and practices governing control and access to SUNSI and SGI. The NRC now believes that generic direction on obtaining access to SUNSI and SGI is no longer appropriate for newly approved DCRs. Accordingly, the specific requirements governing access to SUNSI and SGI contained in paragraph E of the four currently approved DCRs should not be included in the DCR for the AP1000. Instead, the NRC should specify the procedures to be used for obtaining access at an appropriate time in the COL proceeding referencing the AP1000 DCR. The NRC intends to include the new rule language in any future amendments or renewals of the currently existing DCRs, as well as in new (i.e., initial) DCRs. However, the NRC is not planning to initiate rulemaking to change paragraph E of the existing DCRs, to minimize unnecessary resource expenditures by both the original DCR applicant and the NRC.

The purpose of Section VIII is to present the processes for generic changes to, or plant-specific departures (including exemptions) from, the DCD. The Commission adopted this restrictive change process to achieve a more stable licensing process for applicants and licensees that reference this DCR. The change processes for the three different categories of Tier 2 information, namely, Tier 2, Tier 2*, and Tier 2* with a time of expiration, are presented in paragraph B.

Departures from Tier 2 that a licensee may make without prior NRC approval are addressed under paragraph B.5 (similar to the process in 10 CFR 50.59). The NRC is proposing changes to Section VIII to address the change control process specific to departures from the information required by 10 CFR 52.47(a)(28) to address the NRC's AIA requirements in 10 CFR 50.150. Specifically, the NRC is proposing to revise paragraph B.5.b to indicate that the criteria in this paragraph for determining if a proposed departure from Tier 2 requires a license amendment do not apply to a proposed departure affecting information required by 10 CFR 52.47(a)(28) to address 10 CFR 50.150. In addition, the NRC is proposing to redesignate paragraphs B.5.d, B.5.e, and B.5.f as paragraphs B.5.e, B.5.f, and B.5.g, respectively, and to add a new paragraph B.5.d. Proposed paragraph B.5.d would require an applicant or licensee who proposed to depart from the information required by 10 CFR 52.47(a)(28) to be included in the final safety analysis report (FSAR) for the standard design certification to consider the effect of the changed feature or capability on the original assessment required by 10 CFR 50.150(a). The FSAR information required by the AIA rule which is subject to this change control requirement includes the descriptions of the design features and functional capabilities incorporated into the final design of the nuclear power facility and the description of how the identified design features and functional capabilities meet the assessment requirements in 10 CFR 50.150(a)(1). The objective of the change controls is to determine whether the design of the facility, as changed or modified, is shown to withstand the effects of the aircraft impact with reduced use of operator actions. In other words, the applicant or licensee must continue to show, with the modified design, that the acceptance criteria in 10 CFR 50.150(a)(1) are met with reduced use of operator actions. The AIA rule does not require an applicant or a licensee implementing a design change to redo the complete AIA to evaluate the effects of the change. The NRC believes it may be possible to demonstrate that a design change is bounded by the original design or that the change provides an equivalent level of protection, without redoing the original assessment.

Consistent with the NRC's intent when it issued the AIA rule, under the proposed revision to this section, plant-specific departures from the AIA information in the FSAR would not require a license amendment, but may be made by the licensee upon compliance with the substantive requirements of the AIA rule ( i.e., the AIA rule acceptance criteria). The applicant or licensee would also be required to document, in the plant-specific departure, how the modified design features and functional capabilities continue to meet the assessment requirements in 10 CFR 50.150(a)(1), in accordance with Section X of Appendix D to 10 CFR part 52. Applicants and licensees making changes to design features or capabilities included in the certified design may also need to develop alternate means to cope with the loss of large areas of the plant from explosions or fires to comply with the requirements in 10 CFR 50.54(hh). The proposed addition of these provisions to Appendix D to 10 CFR part 52 is consistent with the NRC's intent when it issued the AIA rule in 2009, as noted in the statements of consideration for that rule (74 FR 28112; June 12, 2009, at page 28122, third column).

Paragraph B.6 of Appendix D to 10 CFR part 52 provides a process for departing from Tier 2* information. The creation of, and restrictions on changing, Tier 2* information resulted from the development of the Tier 1 information for the ABWR design certification (Appendix A to 10 CFR part 52) and the ABB-CE [ASEA Brown Boveri—Combustion Engineering] System 80+ design certification (Appendix B to 10 CFR part 52). During this development process, these applicants requested that the amount of information in Tier 1 be minimized to provide additional flexibility for an applicant or licensee who references these appendices. Also, many codes, standards, and design processes that would not be specified in Tier 1, but were acceptable for meeting ITAAC, were specified in Tier 2. The result of these actions was that certain significant information only exists in Tier 2 and the Commission did not want this significant information to be changed without prior NRC approval. This Tier 2* information was identified in the generic DCD with italicized text and brackets ( See Table 1-1 of the AP1000 DCD Introduction for a list of the Tier 2* items). Although the Tier 2* designation was originally intended to last for the lifetime of the facility, like Tier 1 information, the NRC determined that some of the Tier 2* information could expire when the plant first achieves full power (100 percent), after the finding required by 10 CFR 52.103(g), while other Tier 2* information must remain in effect throughout the life of the facility. The factors determining whether Tier 2* information could expire after the first full-power was achieved were whether the Tier 1 information would govern these areas after first full-power and the NRC's determination that prior approval was required before implementation of the change due to the significance of the information. Therefore, certain Tier 2* information listed in paragraph B.6.c would cease to retain its Tier 2* designation after full-power operation is first achieved following the Commission finding under 10 CFR 52.103(g). Thereafter, that information would be deemed to be Tier 2 information that would be subject to the departure requirements in paragraph B.5. By contrast, the Tier 2* information identified in paragraph B.6.b would retain its Tier 2* designation throughout the duration of the license, including any period of license renewal.

The NRC is proposing to revise certain items designated as Tier 2*. The item on HFE would be moved from paragraph B.5.b to paragraph B.5.c, with the effect that the Tier 2* designation on that information would expire after full-power operation is achieved rather than never expiring. In addition, a new item would be added to paragraph B.5.b for RCP type. The NRC determined that certain specific characteristics of the RCP were significant to the safety review and that prior approval of changes affecting those characteristics would be required. This Tier 2* designation does not expire.

Finally, the NRC also concluded that the Tier 2* designation was not necessary for the specific Code edition and addenda for the American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code), as listed in item VIII.B.6.c.(2). At the time of the initial certification, the NRC determined that this information should be Tier 2*. Subsequently, 10 CFR part 50 was modified to include provisions in 10 CFR 50.55a(b)(1)(iii) to provide restrictions in the use of certain editions/addenda to the ASME Code, Section III, that the NRC found unacceptable. In addition, 10 CFR 50.55a(c)(3), (d)(2) and (e)(2), for reactor coolant pressure boundary, Quality Group B Components, and Quality Group C Components, respectively, provide regulatory controls on the use of later edition/addenda to the ASME Code, Section III, through the conditions NRC established on use of paragraph NCA-1140 of the Code. As a result, these rule requirements adequately control the ability of a licensee to use a later edition of the ASME Code and addenda such that Tier 2* designation is not necessary. Thus, the Tier 2* item in paragraph B.6.c.(2) for ASME Code was modified to be limited to ASME Code piping design restrictions as identified in Section 5.2.1.1 of the AP1000 DCD and to include certain Code cases, including Code Case N-284-1, as discussed in Section 3.8.2.2 and other Code cases as designated in Table 5.2-3 of the DCD (Code Case N-284-1 is the only case currently specified in Appendix D to 10 CFR part 52). The NRC retained the Tier 2* designation for applying ASME Code, Section III, Subsection NE to containment design, by moving this provision to the end of item VIII.B.6.c.(14). Section 3.8.2.2 of the DCD identifies the specific edition and addenda for containment design (2001 Edition of ASME Code, Section III, including 2002 Addenda) with the Tier 2* markings.

The purpose of Section X is to present the requirements that apply to maintaining records of changes to and departures from the generic DCD, which would be reflected in the plant-specific DCD. Section X also presents the requirements for submitting reports (including updates to the plant-specific DCD) to the NRC. Paragraph A.1 requires that a generic DCD and the PI and SGI referenced in the generic DCD be maintained by the applicant for this rule. The NRC is proposing to revise paragraph A.1 to replace the term “proprietary information,” or PI, with the broader term “sensitive unclassified non-safeguards information,” or SUNSI. Information categorized as SUNSI is information that is generally not publicly available and encompasses a wide variety of categories. These categories include information about a licensee's or applicant's physical protection or material control and accounting program for special nuclear material not otherwise designated as SGI or classified as National Security Information or Restricted Data (security-related information), which is required by 10 CFR 2.390 to be protected in the same manner as commercial or financial information ( i.e., they are exempt from public disclosure). This change is necessary because the NRC is proposing to approve PI and security-related information. This change would also ensure that Westinghouse (as well as any future applicants for amendments to the AP1000 DCR who intend to supply the certified design) are required to maintain a copy of the applicable generic DCD, and maintain the applicable SUNSI (including PI) and SGI—developed by that applicant—that were approved as part of the relevant design certification rulemakings.

The NRC notes that the generic DCD concept was developed, in part, to meet OFR requirements for incorporation by reference, including public availability of documents incorporated by reference. However, the PI and SGI were not included in the public version of the DCD. Only the public version of the generic DCD would be identified and incorporated by reference into this rule. Nonetheless, the SUNSI for this amendment was reviewed by the NRC and, as stated in paragraph B.2, the NRC would consider the information to be resolved within the meaning of 10 CFR 52.63(a)(5). Because this information is in the non-public version of the DCD, this SUNSI (including PI) and SGI, or its equivalent, is required to be provided by an applicant for a license referencing this DCR.

In addition, the NRC is proposing to add a new paragraph A.4.a that would require the applicant for the AP1000 design to maintain a copy of the AIA performed to comply with the requirements of 10 CFR 50.150(a) for the term of the certification (including any period of renewal). The NRC is also proposing a new paragraph A.4.b that would require an applicant or licensee who references this appendix to maintain a copy of the AIA performed to comply with the requirements of 10 CFR 50.150(a) throughout the pendency of the application and for the term of the license (including any period of renewal). The addition of paragraphs A.4.a and A.4.b is consistent with the NRC's intent when it issued the AIA rule in 2009 (74 FR 28112; June 12, 2009, at page 28121, second column).

The following discussion sets forth each proposed amendment to the AP1000 DCR. All section and paragraph references are to the provisions in the proposed amendment to Appendix D to 10 CFR part 52, unless otherwise noted.

The NRC is proposing to amend Section I, Introduction, to change the DCD revision number from 15 to 18.

The NRC is proposing to amend Section III, Scope and Contents, to revise paragraph A to update the revision number of the DCD, from Revision 15 to Revision 18, approved for incorporation by reference; update the contact information of the Westinghouse representative to be contacted should a member of the public request a copy of the generic DCD; and update other locations ( e.g., the NRC's PDR) where a member of the public could request a copy of or otherwise view the generic DCD.

The NRC is proposing to revise paragraph D to set forth the way potential conflicts are to be resolved. Paragraph D would establish the generic DCD as the controlling document in the event of an inconsistency between the DCD and either the application or the FSER for the certified standard design. This clarification would further distinguish between the conflict scenarios presented in paragraphs D.1 (for the initial certification of the design) and D.2 (for Amendment 1 to the design).

The NRC is proposing to amend Section IV, Additional Requirements and Restrictions, to set forth additional requirements and restrictions imposed upon an applicant who references Appendix D to 10 CFR part 52. Paragraph A would set forth the information requirements for these applicants. The NRC is proposing to revise paragraph A.3 to replace the term “proprietary information” with the broader term “sensitive unclassified non-safeguards information.”

The NRC is also proposing to add a new paragraph A.4 to indicate requirements that must be met in cases where the COL applicant is not using the entity that was the original applicant for the design certification (or amendment) to supply the design for the applicant's use. Proposed paragraph A.4 would require a COL applicant referencing Appendix D to 10 CFR part 52 to include, as part of its application, a demonstration that an entity other than Westinghouse is qualified to supply the AP1000 certified design, unless Westinghouse supplies the design for the applicant's use. In cases where a COL applicant is not using Westinghouse to supply the AP1000 certified design, the required information would be used to support any NRC finding under 10 CFR 52.73(a) that an entity other than the one originally sponsoring the design certification or design certification amendment is qualified to supply the certified design.

The NRC proposes to revise paragraph A to distinguish between the regulations that are applicable and in effect at the time the initial design certification was approved (paragraph A.1) and the regulations that would be applicable and in effect at the time that Amendment 1 is approved (paragraph A.2).

The NRC proposes to amend Section VI, Issue Resolution, by revising paragraph B.1 to provide that all nuclear safety issues arising from the Act that are associated with the information in the NRC's FSER (NUREG-1793), the Tier 1 and Tier 2 information (including the availability controls in Section 16.3 of the generic DCD), and the rulemaking record for Appendix D to 10 CFR part 52 are resolved within the meaning of 10 CFR 52.63(a)(5). These issues include the information referenced in the DCD that are requirements (i.e., secondary references), as well as all issues arising from SUNSI (including PI) and SGI, which are intended to be requirements. This paragraph would be revised to extend issue resolution beyond that of the previously certified design to also include the information in Supplement No. 2 of the FSER and the rulemaking record associated with Amendment 1 to the AP1000 design.

The NRC is proposing to revise paragraph B.2 to replace the term “proprietary information” with the broader term “sensitive unclassified non-safeguards information.”

Paragraph B.7 would be revised to extend environmental issue resolution beyond that of the previously certified design to also include the information in Amendment 1 to the AP1000 design and Appendix 1B of Revision 18 of the generic DCD.

New paragraph VI.E would provide that the NRC will specify at an appropriate time the procedures for interested persons to obtain access to PI, SUNSI, and SGI for the AP1000 DCR. Access to such information would be for the sole purpose of requesting or participating in certain specified hearings, such as (1) The hearing required by 10 CFR 52.85 where the underlying application references Appendix D to 10 CFR part 52; (2) any hearing provided under 10 CFR 52.103 where the underlying COL references Appendix D to 10 CFR part 52; and (3) any other hearing relating to Appendix D to 10 CFR part 52 in which interested persons have the right to request an adjudicatory hearing.

The NRC is proposing changes to Section VIII to address the change control process specific to departures from the information required by 10 CFR 52.47(a)(28) to address the NRC's AIA requirements in 10 CFR 50.150. Specifically, the NRC is proposing to revise the introductory text of paragraph B.5.b to indicate that the criteria in this paragraph for determining if a proposed departure from Tier 2 requires a license amendment do not apply to a proposed departure affecting information required by 10 CFR 52.47(a)(28) to address aircraft impacts.

In addition, the NRC is proposing to redesignate paragraphs B.5.d, B.5.e, and B.5.f as paragraphs B.5.e, B.5.f, and B.5.g, respectively, and to add a new paragraph B.5.d. Proposed paragraph B.5.d would require an applicant referencing the AP1000 DCR, who proposed to depart from the information required by 10 CFR 52.47(a)(28) to be included in the FSAR for the standard design certification, to consider the effect of the changed feature or capability on the original 10 CFR 50.150(a) assessment.

The NRC is proposing to revise certain items designated as Tier 2*. The item on HFE would be moved from paragraph B.6.b to paragraph B.6.c, with the effect that the Tier 2* designation on that information would expire after full-power operation is achieved rather than never. In addition, a new item would be added to paragraph B.6.b for RCP type. The NRC determined that certain specific characteristics of the RCP were significant to the safety review and that prior approval of changes affecting those characteristics would be required. This Tier 2* designation does not expire.

The NRC also concluded that the Tier 2* designation was not necessary for the specific Code edition and addenda for the ASME code as listed in paragraph B.6.c(2). Thus, the item in paragraph B.6.c(2) for the ASME Code would be modified to be more limited in scope. The NRC would retain the Tier 2* designation for the Code edition applicable to containment in paragraph B.6.c(14) and added paragraph B.6.c(16) on ASME Code cases, which are specified in Table 5.2-3 of the generic DCD.

The NRC is proposing to amend Section X, Records and Reporting, to revise paragraph A.1 to replace the term “proprietary information” with the broader term “sensitive unclassified non-safeguards information.” Paragraph A.1 would also be revised to require the design certification amendment applicant to maintain the SUNSI, which it developed and used to support its design certification amendment application. This would ensure that the referencing applicant has direct access to this information from the design certification amendment applicant, if it has contracted with the applicant to provide the SUNSI to support its license application. The AP1000 generic DCD and the NRC-approved version of the SUNSI would be required to be maintained for the period that Appendix D to 10 CFR part 52 may be referenced.

The NRC is also proposing to add a new paragraph A.4.a, which would require Westinghouse to maintain a copy of the AIA performed to comply with the requirements of 10 CFR 50.150(a) for the term of the certification (including any period of renewal). This proposed provision, which is consistent with 10 CFR 50.150(c)(3), would facilitate any NRC inspections of the assessment that the NRC decides to conduct.

Similarly, the NRC is proposing new paragraph A.4.b, which would require an applicant or licensee who references Appendix D to 10 CFR part 52 to maintain a copy of the AIA performed to comply with the requirements of 10 CFR 50.150(a) throughout the pendency of the application and for the term of the license (including any period of renewal). This provision is consistent with 10 CFR 50.150(c)(4). For all applicants and licensees, the supporting documentation retained onsite should describe the methodology used in performing the assessment, including the identification of potential design features and functional capabilities to show that the acceptance criteria in 10 CFR 50.150(a)(1) would be met.

Under the “Policy Statement on Adequacy and Compatibility of Agreement States Programs,” approved by the Commission on June 20, 1997, and published in the Federal Register (62 FR 46517; September 3, 1997), this rule is classified as compatibility “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Act or the provisions of this section. Although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements by a mechanism that is consistent with the particular State's administrative procedure laws. Category “NRC” regulations do not confer regulatory authority on the State.

The NRC is making the documents identified below available to interested persons through one or more of the following methods, as indicated. To access documents related to this action, see Section I, “Submitting Comments and Accessing Information” of this notice.

This section contains instructions regarding how interested persons who wish to comment on the proposed design certification may request access to documents containing SUNSI (including PI  3 ), and SGI, to prepare their comments. Requirements for access to SGI are primarily set forth in 10 CFR parts 2 and 73. This document provides information specific to this proposed rulemaking; however, nothing in this document is intended to conflict with the SGI regulations.

Interested persons who desire access to SUNSI information on the AP1000 design constituting PI should first request access to that information from the design certification applicant. A request for access should be submitted to the NRC if the applicant does not either grant or deny access by the 10-day deadline described below.

Within 10 days after publication of this document, an individual or entity (thereinafter, the “requester”) may request access to such information. Requests for access to SUNSI or SGI submitted more than 10 days after publication of this document will not be considered absent a showing of good cause for the late filing explaining why the request could not have been filed earlier.

The requester shall submit a letter requesting permission to access SUNSI and/or SGI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Attention: Rulemakings and Adjudications Staff, Washington DC 20555-0001. The expedited delivery or courier mail address is: Office of the Secretary, U.S. Nuclear Regulatory Commission, Attention: Rulemakings and Adjudications Staff, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail address for the Office of the Secretary is rulemaking.comments@nrc.gov. The requester must send a copy of the request to the design certification applicant at the same time as the original transmission to the NRC using the same method of transmission. Copies of the request to the applicant must be sent to Stanley E. Ritterbusch, Manager, AP1000 Design Certification, Westinghouse Electric Company, 1000 Westinghouse Drive, Cranberry Township, PA 16066, or by e-mail to ritterse@westinghouse.com. For purposes of complying with this requirement, a “request” includes all the information required to be submitted to the NRC as presented in this section.

The request must include the following information:

1. The name of this design certification amendment (AP1000 Design Certification Amendment), the rulemaking identification number RIN 3150-AI81, the rulemaking Docket ID NRC-2010-0131, and a citation to this document at the top of the first page of the request;

2. The name, address, e-mail, or fax number of the requester. If the requester is an entity, the name of the individual(s) to whom access is to be provided, then the address and e-mail or fax number for each individual, and a statement of the authority granted by the entity to each individual to review the information and to prepare comments on behalf of the entity must be provided. If the requester is relying upon another individual to evaluate the requested SUNSI and/or SGI and prepare comments, then the name, affiliation, address, and e-mail or fax number for that individual must be provided.

3.(a) If the request is for SUNSI, then the requester's need for the information to prepare meaningful comments on the proposed design certification must be demonstrated. Each of the following areas must be addressed with specificity.

(i) The specific issue or subject matter on which the requester wishes to comment;

(ii) An explanation why information which is publicly available, including the publicly available versions of the application and DCD, and information on the NRC's docket for the design certification application is insufficient to provide the basis for developing meaningful comment on the proposed design certification with respect to the issue or subject matter described previously in paragraph 3.(a)(i); and

(iii) Information demonstrating that the individual to whom access is to be provided has the technical competence (demonstrable knowledge, skill, experience, education, training, or certification) to understand and use (or evaluate) the requested information for a meaningful comment on the proposed design certification with respect to the issue or subject matter described in paragraph 3.(a)(i) above.

(b) If the request is for SUNSI constituting PI, then a chronology and discussion of the requester's attempts to obtain the information from the design certification applicant, and the final communication from the requester to the applicant and the applicant's response with respect to the request for access to PI must be submitted.

4.(a) If the request is for SGI, then the requester's “need to know” the SGI must be demonstrated as required by 10 CFR 73.2 and 10 CFR 73.22(b)(1). Consistent with the definition of “need to know” as stated in 10 CFR 73.2 and 10 CFR 73.22(b)(1), each of the following areas must be addressed with specificity:

(i) The specific issue or subject matter on which the requester wishes to comment;

(ii) An explanation why information which is publicly available, including the publicly available versions of the application and DCD, and information on the NRC's docket for the design certification application is insufficient to provide the basis for developing meaningful comment on the proposed design certification with respect to the issue or subject matter described in paragraph 4.(a)(i) above, and that the SGI requested is indispensible in order to develop meaningful comments;  4

(iii) Information demonstrating that the individual to whom access is to be provided has the technical competence (demonstrable knowledge, skill, experience, education, training, or certification) to understand and use (or evaluate) the requested SGI, for meaningful comment on the proposed design certification with respect to the issue or subject matter described in paragraph 4.(a)(i) above.

(b) A completed Form SF-85, “Questionnaire for Non-Sensitive Positions,” must be submitted for each individual who would have access to SGI. The completed Form SF-85 will be used by the Office of Administration to conduct the background check required for access to SGI, as required by 10 CFR part 2, Subpart G, and 10 CFR 73.22(b)(2), to determine the requester's trustworthiness and reliability. For security reasons, Form SF-85 can only be submitted electronically through the electronic Questionnaire for Investigations Processing (e-QIP) Web site, a secure Web site that is owned and operated by the Office of Personnel Management (OPM). To obtain online access to the form, the requester should contact the NRC's Office of Administration at 301-492-3524. 5

(c) A completed Form FD-258 (fingerprint card), signed in original ink, and submitted under 10 CFR 73.57(d). Copies of Form FD-258 may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by calling 301-415-5877 or 301-492-7311; or by e-mail to Forms.Resource@nrc.gov. The fingerprint card will be used to satisfy the requirements of 10 CFR Part 2, 10 CFR 73.22(b)(1), and Section 149 of the Act, which mandates that all persons with access to SGI must be fingerprinted for a Federal Bureau of Investigation identification and criminal history records check;

(d) A check or money order in the amount of $200.00  6 payable to the NRC for each individual for whom the request for access has been submitted; and

(e) If the requester or any individual who will have access to SGI believes they belong to one or more of the categories of individuals relieved from the criminal history records check and background check requirements, as stated in 10 CFR 73.59, the requester should also provide a statement specifically stating which relief the requester is invoking, and explaining the requester's basis (including supporting documentation) for believing that the relief is applicable. While processing the request, the NRC's Office of Administration, Personnel Security Branch, will make a final determination whether the stated relief applies. Alternatively, the requester may contact the Office of Administration for an evaluation of their status prior to submitting the request. Persons who are not subject to the background check are not required to complete the Form SF-85 or Form FD-258; however, all other requirements for access to SGI, including the need to know, are still applicable.

Copies of documents and materials required by paragraphs 4(b), (c), (d), and (e), as applicable, of this section of this document must be sent to the following address: Office of Administration, U.S. Nuclear Regulatory Commission, Personnel Security Branch, Mail Stop: TWB-05 B32M, Washington, DC 20555-0012.

These documents and materials should not be included with the request letter to the Office of the Secretary, but the request letter should state that the forms and fees have been submitted as required above.

5. To avoid delays in processing requests for access to SGI, all forms should be reviewed for completeness and accuracy (including legibility) before submitting them to the NRC. The NRC will return incomplete or illegible packages to the sender without processing.

6. Based on an evaluation of the information submitted under paragraphs 3(a) and (b), or 4(a), (b), (c), and (e) of this section, as applicable, the NRC will determine within 10 days of receipt of the written access request whether the requester has established a legitimate need for the SUNSI access or “need to know” the SGI requested.

7. For SUNSI access requests, if the NRC determines that the requester has established a legitimate need for access to SUNSI, the NRC will notify the requester in writing that access to SUNSI has been granted, provided however, that if the SUNSI consists of PI ( i.e., trade secrets or confidential or financial information), the NRC must first notify the applicant of the NRC's determination to grant access to the requester not less than 10 days before informing the requester of the NRC's decision. If the applicant wishes to challenge the NRC's determination, it must follow the procedures in paragraph 12 of this section. The NRC will not provide the requester access to disputed PI until the procedures in paragraph 12 of this section are completed.

The written notification to the requester will contain instructions on how the requester may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions will include, but are not necessarily limited to, the signing of a protective order presenting terms and conditions to prevent the unauthorized or inadvertent disclosure of SUNSI by each individual who will be granted access to SUNSI. Claims that the provisions of such a protective order have not been complied with may be filed by calling NRC's toll-free safety hotline at 800-695-7403. Please note that calls to this number are not recorded between the hours of 7 a.m. to 5 p.m. Eastern Time. However, calls received outside these hours are answered by the NRC's Incident Response Operations Center on a recorded line. Claims may also be filed via e-mail sent to NRO_Allegations@nrc.gov, or may be sent in writing to the U.S. Nuclear Regulatory Commission, ATTN: N. Rivera-Feliciano, Mail Stop: T-7D24, Washington, DC 20555-0001.

8. For requests for access to SGI, if the NRC determines that the requester has established a need to know the SGI, the NRC's Office of Administration will then determine, based upon completion of the background check, whether the proposed recipient is trustworthy and reliable, as required for access to SGI by 10 CFR 73.22(b). If the NRC's Office of Administration determines that the individual or individuals are trustworthy and reliable, the NRC will promptly notify the requester in writing. The notification will provide the names of approved individuals as well as the conditions under which the SGI will be provided. Those conditions will include, but are not necessarily limited to, the signing of a protective order by each individual who will be granted access to SGI. Claims that the provisions of such a protective order have not been complied with may be filed by calling NRC's toll-free safety hotline at 1-800-695-7403. Please note that calls to this number are not recorded between the hours of 7 a.m. to 5 p.m. Eastern Time. However, calls received outside these hours are answered by the NRC's Incident Response Operations Center on a recorded line. Claims may also be filed via e-mail sent to NRO_Allegations@nrc.gov, or may be sent in writing to the U.S. Nuclear Regulatory Commission, ATTN: N. Rivera-Feliciano, Mail Stop: T-7D24, Washington, DC 20555-0001. Because SGI requires special handling, initial filings with the NRC should be free from such specific information. If necessary, the NRC will arrange an appropriate setting for transmitting SGI to the NRC.

9. Release and Storage of SGI. Prior to providing SGI to the requester, the NRC will conduct (as necessary) an inspection to confirm that the recipient's information protection system is sufficient to satisfy the requirements of 10 CFR 73.22. Alternatively, recipients may choose to view SGI at an approved SGI storage location rather than establish their own SGI protection program to meet SGI protection requirements.

10. Filing of Comments on the Proposed Design Certification. Any comments in this rulemaking proceeding that are based upon the disclosed SUNSI or SGI must be filed by the requester no later than 25 days after receipt of (or access to) that information, or the close of the public comment period, whichever is later. The commenter must comply with the NRC requirements regarding the submission of SUNSI and SGI to the NRC when submitting comments to the NRC (including marking and transmission requirements).

11. Review of Denials of Access.

(a) If the request for access to SUNSI or SGI is denied by the NRC, the staff shall promptly notify the requester in writing, briefly stating the reason or reasons for the denial.

(b) Before the NRC's Office of Administration makes an adverse determination regarding the trustworthiness and reliability of the proposed recipient(s) of SGI, the NRC's Office of Administration, under 10 CFR 2.705(c)(3)(iii), must provide the proposed recipient(s) any records that were considered in the trustworthiness and reliability determination, including those required to be provided under 10 CFR 73.57(e)(1), so that the proposed recipient is provided an opportunity to correct or explain information.

(c) Appeals from a denial of access must be made to the NRC's Executive Director for Operations (EDO) under 10 CFR 9.29. The decision of the EDO constitutes final agency action, as provided in 10 CFR 9.29(d).

12. Predisclosure Procedures for SUNSI Constituting Trade Secrets or Confidential Commercial or Financial Information. The NRC will follow the procedures in 10 CFR 9.28 if the NRC determines, under paragraph 7 of this section, that access to SUNSI constituting trade secrets or confidential commercial or financial information will be provided to the requester. However, any objection filed by the applicant under 10 CFR 9.28(b) must be filed within 15 days of the NRC notice in paragraph 7 of this section rather than the 30-day period provided for under that paragraph. In applying the provisions of 10 CFR 9.28, the applicant for the DCR will be treated as the “submitter.”

The Presidential memorandum “Plain Language in Government Writing” published on June 10, 1998 (63 FR 31883), directed that the Government's documents be in clear and accessible language. The NRC requests comments on the proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the NRC as explained in the ADDRESSES heading of this document.

The National Technology and Transfer Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this proposed rule, the NRC proposes to approve Amendment 1 to the AP1000 standard plant design for use in nuclear power plant licensing under 10 CFR part 50 or 52. Design certifications (and amendments thereto) are not generic rulemakings establishing a generally applicable standard with which all 10 CFR parts 50 and 52 nuclear power plant licensees must comply. Design certifications (and amendments thereto) are Commission approvals of specific nuclear power plant designs by rulemaking. Furthermore, design certifications (and amendments thereto) are initiated by an applicant for rulemaking, rather than by the NRC. For these reasons, the NRC concludes that the National Technology and Transfer Act of 1995 does not apply to this proposed rule.

The Commission has determined under NEPA, and the Commission's regulations in Subpart A, “National Environmental Policy Act; Regulations Implementing Section 102(2),” of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” that this proposed DCR, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement (EIS) is not required. The basis for this determination, as documented in the EA, is that the Commission has made a generic determination under 10 CFR 51.32(b)(2) that there is no significant environmental impact associated with the issuance of an amendment to a design certification. This amendment to 10 CFR part 52 would not authorize the siting, construction, or operation of a facility using the amended AP1000 design; it would only codify the amendment to the AP1000 design in a rule. The NRC will evaluate the environmental impacts and issue an EIS as appropriate under NEPA as part of the application for the construction and operation of a facility referencing this amendment to the AP1000 DCR. In addition, as part of the draft EA for the amendment to the AP1000 design, the NRC reviewed Westinghouse's evaluation of various design alternatives to prevent and mitigate severe accidents in Appendix 1B of the AP1000 DCD Tier 2. According to 10 CFR 51.30(d), an EA for a design certification amendment is limited to the consideration of whether the design change, which is the subject of the proposed amendment renders a SAMDA previously rejected in the earlier EA to become cost beneficial, or results in the identification of new SAMDAs, in which case the costs and benefits of new SAMDAs and the bases for not incorporating new SAMDAs in the design certification must be addressed. Based upon review of Westinghouse's evaluation, the Commission concludes that the proposed design changes: (1) Do not cause a SAMDA previously rejected in the EA for the initial AP1000 design certification to become cost beneficial; and (2) do not result in the identification of any new SAMDAs that could become cost beneficial.

The Commission is requesting comment on the draft EA. As provided in 10 CFR 51.31(b), comments on the draft EA will be limited to the consideration of SAMDAs as required by 10 CFR 51.30(d). The Commission will prepare a final EA following the close of the comment period for the proposed standard design certification. If a final rule is issued, all environmental issues concerning SAMDAs associated with the information in the final EA and Appendix 1B of the AP1000 DCD Tier 2 will be considered resolved for plants referencing Amendment 1 to the AP1000 design whose site parameters are within those specified in SAMDA evaluation. The existing site parameters specified in the SAMDA evaluation are not affected by this design certification amendment.

The draft EA, upon which the Commission's finding of no significant impact is based, and Revision 18 of the AP1000 DCD are available for examination and copying at the NRC's PDR, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, Maryland 20852.

This proposed rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ). This rule has been submitted to OMB for review and approval of the information collection requirements.

Type of submission, new or revision: Revision.

The title of the information collection: 10 CFR part 52, AP1000 Design Certification Amendment.

The form number if applicable: N/A.

How often the collection is required: On occasion. Reports required under 10 CFR part 52, Appendix D, paragraph IV.A.4, are collected and evaluated once if licensing action is sought on a COL application referencing the AP1000 design and the COL applicant is not using the entity that was the original applicant for the design certification, or amendment, to supply the design for the license applicant's use. In addition, COL applicants and the applicant for a design certification must keep records of the aircraft impact assessment performed to comply with the requirements of 10 CFR 50.150(a).

Who will be required or asked to report: COL applicants and one applicant for a design certification.

An estimate of the number of annual responses: 8 (0 annual responses plus 8 recordkeepers).

The estimated number of annual respondents: 8.

An estimate of the total number of hours needed annually to complete the requirement or request: 24 hours (0 hours reporting and 24 hours recordkeeping).

Abstract: The NRC proposes to amend its regulations to certify an amendment to the AP1000 standard plant design to bring the design into compliance with NRC's regulations and to increase standardization of the design. This action is necessary so that applicants or licensees intending to construct and operate an AP1000 design may do so by referencing this DCR as amended.

The NRC is seeking public comment on the potential impact of the information collections contained in this proposed rule and on the following issues:

1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility?

2. Is the estimate of burden accurate?

3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?

4. How can the burden of the information collection be minimized, including the use of automated collection techniques?

A copy of the OMB clearance package may be viewed free of charge at the NRC's PDR, One White Flint North, 11555 Rockville Pike, Room O1-F21, Rockville, Maryland 20852. The OMB clearance package and rule are available at the NRC Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html for 60 days after the signature date of this document.

Send comments on any aspect of these proposed information collections, including suggestions for reducing the burden and on the above issues, by March 28, 2011 to the Information Services Branch (T5-F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by e-mail to INFOCOLLECTS.RESOURCE@NRC.GOV; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0151), Office of Management and Budget, Washington, DC 20503. Comments on the proposed information collections may also be submitted via the Federal rulemaking Web site, http://www.regulations.gov, Docket ID NRC-2010-0131. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date. You may also e-mail comments to Christine_J._Kymn@omb.eop.gov or comment by telephone at 202-395-4638.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

The NRC has not prepared a regulatory analysis for this proposed rule. The NRC prepares regulatory analyses for rulemakings that establish generic regulatory requirements applicable to all licensees. Design certifications (and amendments thereto) are not generic rulemakings in the sense that design certifications (and amendments thereto) do not establish standards or requirements with which all licensees must comply. Rather, design certifications (and amendments thereto) are Commission approvals of specific nuclear power plant designs by rulemaking, which then may be voluntarily referenced by applicants for COLs. Furthermore, design certification rulemakings are initiated by an applicant for a design certification (or amendments thereto), rather than the NRC. Preparation of a regulatory analysis in this circumstance would not be useful because the design to be certified is proposed by the applicant rather than the NRC. For these reasons, the Commission concludes that preparation of a regulatory analysis is neither required nor appropriate.

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this rule would not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed rule provides for certification of an amendment to a nuclear power plant design. Neither the design certification amendment applicant, nor prospective nuclear power plant licensees who reference this DCR, fall within the scope of the definition of “small entities” presented in the Regulatory Flexibility Act, or the size standards established by the NRC (10 CFR 2.810). Thus, this rule does not fall within the purview of the Regulatory Flexibility Act.

The NRC has determined that this proposed rule meets the requirements of the backfit rule, 10 CFR 50.109, and the requirements governing changes to DCRs in 10 CFR 52.63(a)(1).

The proposed rule does not constitute backfitting as defined in the backfit rule (10 CFR 50.109) with respect to operating licenses under 10 CFR part 50 because there are no operating licenses referencing this DCR.

Westinghouse requested many changes to the AP1000 DCD to correct spelling, punctuation, or similar errors, which result in text that has the same essential meaning. The NRC concludes that these Westinghouse-requested changes, which are editorial in nature, neither constitute backfitting as defined in 10 CFR 50.109(a)(1), nor are these changes inconsistent with the issue finality provisions of 10 CFR 52.63 or 10 CFR 52.83. The backfitting and issue finality provisions were not meant to apply to such editorial changes inasmuch as such changes would have insubstantial impact on licensees with respect to their design and operation, and are not the kind of changes falling within the policy considerations that underlie the backfit rule and the issue finality provisions of 10 CFR 52.63 and 52.83.

Westinghouse also requested changes to the AP1000 DCD, which the NRC understands were the result of requests to Westinghouse from COL applicants referencing the AP1000 design, to achieve consistency in description and approach in different portions of the DCD. In the absence of a generic change to the AP1000, the referencing COL applicants stated to Westinghouse and the NRC that each would likely take plant-specific departures to address the inconsistency. While this could result in more consistency within any given COL application, it would result in inconsistencies among the different referencing COLs, which is inconsistent with the overall standardization goal of 10 CFR part 52. Accordingly, the NRC concludes that the Westinghouse-requested changes to the AP1000 to address consistency do not constitute backfitting under the backfit rule (in as much as they are voluntary) and are not otherwise inconsistent with the issue finality provisions of 10 CFR 52.63 and 52.83.

Westinghouse also proposed numerous substantive changes to the AP1000 design, including, but not limited to, minor component design details, replacement of a design feature with another having similar performance ( e.g., turbine manufacturer, power for the auxiliary boiler), and changes allowing additional capability for operational flexibility ( e.g., liquid waste holdup tanks, unit reserve transformer). Westinghouse included within its application a detailed list of each DCD content change and the basis under 10 CFR 52.63(a)(1) that supports including that change in this amendment.

With respect to DCD Revision 18, the bases under 10 CFR 52.63(a)(1) for the various changes to the DCD are documented in an enclosure, entitled Revision Change Roadmap, to a December 1, 2010, Westinghouse letter sent to the NRC. This Revision Change Roadmap cross-references the DCD changes in DCD Revision 18, as compared to DCD Revision 17, and applicable 10 CFR 52.63(a)(1) criteria. Revision 18 contains both proposed changes previously described in the design change packages and changes already accepted by the NRC in the review process of Revision 17 to the AP1000 DCD. In the course of the review of both design change packages, the NRC determined that DCD changes were needed. In response to NRC questions, Westinghouse proposed such changes. Once the NRC was satisfied with these DCD markups, they were documented in the safety evaluation report (SER) as “confirmatory items” (CIs). The CIs were first identified during the NRC's review of Revision 17 of the AP1000 DCD. With the review of Revision 18, the NRC will confirm that Westinghouse has made those changes to the DCD accepted by the NRC that were not addressed in Revision 17 to the AP1000 DCD. The use of CIs is restricted to cases where the NRC has reviewed and approved specific design control document proposals. For the final rule, the NRC will complete the review of the CIs and prepare an FSER reflecting that action. The CIs are closed based upon an acceptable comparison between the revised DCD text and the text required by the CI. No technical review of Revision 18 by the NRC is necessary, because only CIs and design changes pursuant to DC/COL-ISG-011, previously accepted by the NRC, are contained in Revision 18 to the DCD.

A September 22, 2008, Westinghouse letter provides a similar set of cross-references for those changes associated with DCD Revision 17, as compared to DCD Revision 16. For Revision 16, in contrast, Westinghouse used TRs to identify the DCD changes in DCD Revision 16, as compared to DCD Revision 15, and listed the corresponding applicable 10 CFR 52.63(a)(1) criteria in an enclosure to a Westinghouse letter dated May 26, 2007 (Table 1). These tables include the editorial and consistency changes described above as well as design changes. In the course of the NRC review of the technical changes proposed by Westinghouse, the NRC considered the basis offered by Westinghouse and made conclusions about whether the criteria of 10 CFR 52.63(a) were satisfied. These conclusions are included in the chapters of the Advanced Final Safety Evaluation Report. The NRC concluded that all of these changes met at least one of the criteria in 10 CFR 52.63(a) and are not otherwise inconsistent with the issue finality provisions of 10 CFR 52.63 and 52.83. Fifteen of the most significant changes are discussed below, to show that each of the 15 substantive changes to the AP1000 certified design meet at least one of the criteria in 10 CFR 52.63(a)(1)(i) through (a)(1)(vii) and, therefore, do not constitute a violation of the finality provisions in that section.

Revision 17 provides a similar cross-reference in the DCD as submitted by a September 22, 2008, Westinghouse letter for those changes associated with Revision 17. Revision 16 on the other hand, uses TRs to identify the DCD changes and lists the corresponding applicable 10 CFR 52.63(a)(1) criteria in an enclosure to a Westinghouse letter, dated May 26, 2007 (Table 1). These tables include the editorial and consistency changes described above as well as design changes. In the course of the NRC review of the technical changes proposed by Westinghouse, the NRC considered the basis offered by Westinghouse and made conclusions about whether the criteria of 10 CFR 52.63(a) were satisfied. These conclusions are included in the chapters of the Advanced Final Safety Evaluation Report. The NRC concluded that all of these changes met at least one of the criteria in 10 CFR 52.63(a) and are not otherwise inconsistent with the issue finality provisions of 10 CFR 52.63 and 52.83. Fifteen of the most significant changes are discussed below, to show that each of the 15 substantive changes to the AP1000 certified design meet at least one of the criteria in 10 CFR 52.63(a)(1)(i) through (a)(1)(vii) and, therefore, do not constitute a violation of the finality provisions in that section.

I. 10 CFR 52.63 Criterion (a)(1)(iv): Provides the Detailed Design Information to be Verified under those ITAAC, which are Directed at Certification Information (i.e., DAC).

Title: Removal of Human Factors Engineering Design Acceptance Criteria from the Design Control Document.

Item: 1 of 15.

Significant Change: The ITAAC Design Commitments for Human Factor Engineering (HFE) is in Tier 1, Table 3.2-1. In Revision 17 of the AP1000 DCD, Westinghouse proposed deletion of the Human Factors DAC (Design Commitments 1 through 4) and provided sufficient supporting documentation to meet the requirements of these ITAAC. Design Commitment 1 pertains to the integration of human reliability analysis with HFE design. Design Commitment 2 pertains to the HFE task analysis. Design Commitment 3 pertains to the human-system interface. Design Commitment 4 pertains to the HFE program verification and validation implementation. The information developed by Westinghouse to satisfy these ITAAC is included in Chapter 18 of the DCD.

Location within the Safety Evaluation (SER) where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with the HFE DAC are in Sections 18.7.6 (design commitment 1), 18.5.9 (design commitment 2), 18.2.8 (design commitment 3), and 18.11 (design commitment 4) of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

The additional information included in Tier 2 provides detailed design information on human factors design that would otherwise have to be addressed through verification of implementation of the human factors DAC. Therefore, the changes to the DCD eliminate the need for DAC on human factors and meet the finality criteria in § 52.63(a)(1)(iv).

Title: Change to Instrumentation and Control DAC and Associated ITAAC.

Item: 2 of 15.

Significant Change: In the proposed revision to DCD Chapter 7, Westinghouse chose the Common Q platform to implement the Protection and Safety Monitoring System (PMS) and removed all references to the Eagle 21 platform. This design change, coupled with the development of other information about the PMS system definition design phase, was the basis for Westinghouse's proposed removal of its Tier 1, Chapter 2, Section 2.5.2, Design Commitment 11(a) Design Requirements phase from Table 2.5.2-8, “Inspections, Tests, Analyses, and Acceptance Criteria,” for the PMS.

In its proposed revision to the DCD in Chapter 7, Westinghouse altered its design for the Diverse Actuation System (DAS) by implementing it with Field Programmable Gate Array (FPGA) technology instead of microprocessor-based technology. Additional information about the design process for the DAS was added as the basis for Westinghouse's proposed completion of its Tier 1, Chapter 2, Section 2.5.1, Design Commitment 4a) and 4b) Design Requirements and System Definition phases from Table 2.5.1-4 “Inspections, Tests, Analyses, and Acceptance Criteria” for the DAS.

Location within the Safety Evaluation (SER) where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with I&C DAC and ITAAC are in Sections 7.2.2.3.14, 7.2.5, 7.8.2, 7.9.2, and 7.9.3 of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Westinghouse provided additional information that incorporates the results of the design process implementation for the PMS and DAS (which both support completion of Design Commitments 11a from Table 2.5.2-8 and 4a and 4b from Table 2.5.1-4, respectively) into the DCD. The additional information included in Tier 2 provides detailed design information on I&C design that would otherwise have to be addressed through verification of implementation of the I&C DAC. Therefore, the changes to the DCD eliminate the need for DAC on I&Cs and meet the finality criteria in § 52.63(a)(1)(iv).

II. 10 CFR 52.63 CRITERION (a)(1)(vii): Contributes to Increased Standardization of the Certification Information

The changes being proposed for the AP1000 amendment generally fall into one of two categories: (1) Changes which provide additional information or a greater level of detail not previously available in the currently-approved version of the AP1000 DCD (Revision 15); or (2) changes requested by COL applicants referencing the AP1000 who would plan to include these changes in their application as departures if they were not approved in the AP1000 DCR amendment. The Commission concludes that both categories of changes meet the 10 CFR 52.63 criterion of “contributes to increased standardization.” The bases for the Commission's conclusions, including each category of change, are discussed below.

Additional and more detailed information :

Westinghouse proposes that the DCD be changed by adding new, more detailed design information that expands upon the design information already included in the DCD. This information would be used by every COL referencing the AP1000 DCR. Incorporating these proposed changes into the AP1000 DCR as part of this amendment contributes to the increased standardization of the certification information by eliminating the possibility of multiple departures. Therefore, these changes enhance standardization, and meet the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Changes for which COL applicants would otherwise request departures :

Westinghouse proposes several changes to its DCD with the stated purpose of contributing to increased standardization. Westinghouse represents that these changes were requested by the lead COL applicants currently referencing the AP1000. The NRC, in meetings with these applicants as part of the “Design-Centered Working Group” process for jointly resolving licensing issues, confirmed that these applicants requested these changes and committed to pursuance of plant-specific departures from the AP1000 if Westinghouse did not initiate such changes to the AP1000 DCR. Such departures may be pursued by individual COL applicants (and licensees) as described in Part VIII, “Processes for Changes and Departures” of the AP1000 DCR (Appendix D to 10 CFR Part 52). Incorporating these proposed changes into the AP1000 DCR as part of this amendment contributes to the increased standardization of the certification information by eliminating the possibility of multiple departures. Therefore, all Westinghouse-initiated changes for the purpose of eliminating plant-specific departures enhance standardization, and meet the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Minimization of Contamination (10 CFR 20.1406 (b)).

Item: 3 of 15.

Significant Change: In DCD Section 12.1.2.4, Westinghouse discussed features incorporated into the amended design certification to demonstrate compliance with 10 CFR 52.47(a)(6), which requires that a design certification application include the information required by 10 CFR 20.1406 (b), which was adopted in 2007 as part of the general revisions to 10 CFR part 52. This regulation requires design certification applicants whose applications are submitted after August 20, 1997, to describe how the design will minimize, to the extent practicable, contamination of the facility and the environment, facilitate decommissioning and minimize the generation of radioactive waste. The DCD changes are documented in Westinghouse Technical Report 98, “Compliance with 10 CFR 20.1406” (APP-GW-GLN-098), Revision 0 (ADAMS Accession No. ML071010536). Westinghouse evaluated contaminated piping, the spent fuel pool (SFP) air handling systems, and the radioactive waste drain system to show that piping and components utilize design features that will prevent or mitigate the spread of contamination within the facility or the environment. Westinghouse has incorporated modifications and features such as elimination of underground radioactive tanks, RCPs without mechanical seals, fewer embedded pipes, less radioactive piping in the auxiliary building and containment vessel, and monitoring the radwaste discharge pipeline to demonstrate that the AP1000 design certification, as amended, will be in compliance with the subject regulation and Regulatory Guidance (RG) 4.21, “Minimization of Contamination and Radioactive Waste Generation: Life-Cycle Planning,” (June 2008).

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features are in Section 12.2 of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1)(vii):

Inclusion in the DCD of the more detailed information about the features for minimization of contamination provides additional information to be included in the DCD for the AP1000 that increases standardization of the AP1000 design. Thus, the changes meet the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Extension of Seismic Spectra to Soil Sites and Changes to Stability and Uniformity of Subsurface Materials and Foundations.

Item: 4 of 15.

Significant Change: In AP1000 DCD Tier 2, Sections 2.5.2 and 3.7, Westinghouse extended the AP1000 design to five soil profiles, including firmrock through soft soil sites, for Category I structures, systems, and components. The certified design included only hard rock conditions. To support the technical basis for the extension, Westinghouse provided: seismic analysis methods, procedures for analytical modeling, soil-structure interaction analysis with three components of earthquake motion, and interaction of non-seismic Category I structures with seismic Category I structures. Also, in DCD Section 2.5.4, Westinghouse extended the AP1000 design with “Stability and Uniformity of Subsurface Materials and Foundations,” where the DCD presents the requirements related to subsurface materials and foundations for COL applicants referencing AP1000 standard design. The site-specific information includes excavation, bearing capacity, settlement, and liquefaction potential. On April 21, 2010, Westinghouse submitted Revision 5 to TR-03, “Extension of Nuclear Island Seismic Analysis to Soil Sites,” Revision 0, and summarized the report in DCD Appendix 3G, to provide more detail about its analyses.

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with extension of seismic spectra to soil sites are in Section 3.7 of the SER (ADAMS Accession No. ML103260072). The details of the NRC's evaluation of Westinghouse's design features associated with stability and uniformity of subsurface materials and foundations are in Sections 2.5.2 and 2.5.4 of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Westinghouse submitted a change to the DCD that would provide the seismic design and supporting analysis for a range of soil conditions representative of expected applicants for a COL referencing the AP1000 design. As a result, the certified design can be used at more sites without the need for departures to provide site-specific analyses or design changes, thus leading to a more uniform analysis and seismic design for all the AP1000 plants. Including in the DCD the information demonstrating adequacy of the design for seismic events for a wider range of soil conditions is a change that provides additional information leading to increased standardization of this aspect of the design. In addition, the change reduces the need for COL applicants to seek departures from the current AP1000 design in as much as most sites do not conform to the currently-approved hard rock sites. Therefore, the change increases standardization and meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Long-Term Cooling.

Item: 5 of 15.

Significant Change: DCD Tier 2, Section 6.3.8 describes the changes to COL information items related to containment cleanliness and verification of water sources for long-term recirculation cooling following a loss-of-coolant accident (LOCA). The COL information item related to verification of water sources for long-term recirculation cooling following a LOCA was closed based on Westinghouse TR-26, “AP1000 Verification of Water Sources for Long-Term Recirculation Cooling Following a LOCA,” APP-GW-GLR-079 (ADAMS Accession No. ML102170123) and other information contained in DCD Chapter 6. Section 6.3.2.2.7 describes the evaluation of the water sources for long-term recirculation cooling following a LOCA, including the design and operation of the AP1000 PCCS debris screens. DCD Tier 1, Section 2.2.3, includes the associated design descriptions and ITAAC. The COL information item requires a cleanliness program to limit the amount of latent debris in containment consistent with the analysis and testing assumptions.

Location within the SE where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with long-term cooling in the presence of LOCA-generated and latent debris and General Design Criteria 35 and 38 are in Subsection 6.2.1.8 of the SE (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Inclusion in the DCD of the design and analysis information that demonstrates adequacy of long-term core cooling provides additional information leading to increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Control Room Emergency Habitability System.

Item: 6 of 15.

Significant Change: DCD Tier 2, Section 6.4 has undergone significant revision. Westinghouse re-designed its main control room emergency habitability system to meet control room radiation dose requirements using the standard assumed in-leakage of 5 cubic feet per minute in the event of a release of radiation. The changes include the addition of a single-failure proof passive filter train. The flow through the filter train is provided by an eductor downstream of a bottled air supply. These changes were prompted by Westinghouse's proposal to revise the atmospheric dispersion factors from those certified in Revision 15 to larger values to better accommodate COL sites. As a result, other design changes were needed to maintain doses in the control room within acceptable limits.

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with radiation dose to personnel under accident conditions are in Section 6.4 of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Incorporation of design changes to the main control room ventilation systems would contribute to increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Changes to the Component Cooling Water System.

Item: 7 of 15.

Significant Change: In Revision 18 to AP1000 DCD Tier 2, Westinghouse proposed changes to the design of the component cooling water system (CCWS) to modify the closure logic for system motor-operated containment isolation valves and install safety-class relief valves on system supply and return lines. The closure logic would close the isolation valves upon a high reactor coolant pump (RCP) bearing water temperature signal, which might be indicative of a large leak in the heat exchanger tube. This change would automatically isolate this potential leak to eliminate the possibility of reactor coolant from a faulted heat exchanger discharging to portions of the CCWS outside containment.

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with the CCWS are in Chapter 23, Section V, of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Westinghouse included changes to the component cooling water in the DCD. These changes will contribute to increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Changes to Instrumentation and Control Systems.

Item: 8 of 15.

Significant Change: In AP1000 DCD Tier 2 Sections 7.1 through 7.3, Westinghouse completed planning activities related to the architecture of its safety related I&C protection system, referred to as the PMS. Westinghouse also proposed changes to the DCD to reflect resolution of PMS interdivisional data communications protocols and methods utilized to ensure a secure development and operational environment. A secure development and operational environment in this context refers to a set of protective actions taken against a predictable set of non-malicious acts ( e.g., inadvertent operator actions, undesirable behavior of connected systems) that could challenge the integrity, reliability, or functionality of a digital safety system. The establishment of a secure development and operational environment for digital safety systems involves: (i) measures and controls taken to establish a secure environment for development of the digital safety system against undocumented, unneeded and unwanted modifications and (ii) protective actions taken against a predictable set of undesirable acts ( e.g., inadvertent operator actions or the undesirable behavior of connected systems) that could challenge the integrity, reliability, or functionality of a digital safety system during operations.

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with I&C systems are in Sections 7.1 through 7.3, and 7.9 of NRC's Chapter 7 SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Inclusion in the DCD of the more detailed information about the I&C architecture and communications provides additional information leading to increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Changes to the Passive Core Cooling System—Gas Intrusion.

Item: 9 of 15.

Significant Change: In AP1000 DCD Tier 1 and Tier 2, Westinghouse proposed changes to the design of the PCCS to add manual maintenance vent valves and manual maintenance drain valves, and to re-route accumulator discharge line connections in order to address concerns related to gas intrusion. In addition, Westinghouse provided descriptions of surveillance and venting procedures to verify gas void elimination during plant startup and operations. These proposed changes are responsive to the actions requested by Generic Letter 2008-01, “Managing Gas Accumulation in Emergency Core Cooling, Decay Heat Removal, and Containment Spray Systems.”

The passive core cooling system (PCCS) provides rapid injection of borated water, which provides negative reactivity to reduce reactor power to residual levels and ensures sufficient core cooling flow. Non-condensible gas accumulation in the PCCS has the potential to delay injection of borated water, which would impact the moderating and heat removal capabilities, thus providing a challenge to the primary fission product barrier and maintenance of a coolable core geometry. As part of its review, the NRC determined that the proposed changes in the design of the PCCS were acceptable for providing protection for design basis events, such as LOCAs.

Location within the SER where the changes are principally described:

The NRC's evaluation of proposed changes to the DCD associated with changes to the PCCS is in Chapter 23, Section L, of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Inclusion in the DCD of the design and analysis information that provides for venting of non-condensible gases provides additional information leading to increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Integrated Head Package—Use of the QuickLoc Mechanism.

Item: 10 of 15.

Significant Change: In DCD Tier 2, Section 5.3.1.2, Westinghouse describes a revised integrated head package (IHP) design. The new design includes eight QuickLoc penetrations in lieu of the forty-two individual in-core instrument thimble-tube-assembly penetrations on the reactor vessel head, which is a significant decrease in the number of RPV closure head penetrations for access to in-core and core exit instrumentation. The QuickLoc mechanism allows the removal of the RPV closure head without removal of in-core and core exit instrumentation and, thus, decreases refueling outage time and overall occupational exposure. This head package design has been installed on a number of operating plants and, as noted, has several operational and safety advantages.

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with the (1) IHP and QuickLoc mechanism are in Section 5.2.3 of the SER (ADAMS Accession No. ML103260072) and (2) radiation protection pertaining to the addition of the integrated reactor head package and QuickLoc connectors are in Subsection 12.4.2.3 of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Inclusion in the DCD of the changes to the IHP would contribute to the increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Reactor Coolant Pump Design.

Item: 11 of 15.

Significant Change: In AP1000 DCD Tier 2 Subsection 5.4.1, Westinghouse proposed changes related to the RCP design. These changes include: change to a single-stage, hermetically sealed, high inertia, centrifugal sealless RCP of canned motor design; use of an externally mounted heat exchanger; and change of the RCP flywheel to bimetallic construction. These DCD changes are documented in: TR-34, “AP1000 Licensing Design Change Document for Generic Reactor Coolant Pump,” APP-GW-GLN-016, November 2006 and in other documentation in response to NRC inquiries. The supporting documentation includes an analysis demonstrating that failure of the flywheel would not generate a missile capable of penetrating the surrounding casing, and, therefore, that such failure would not damage the reactor coolant pressure boundary.

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with the RCP design are in Section 5.4.1 of the NRC's Chapter 5 SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Inclusion in the DCD of the changes to the RCP would reduce the possibility of plant-specific departure requests by COL applicants referencing the AP1000 DCR. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Reactor Pressure Vessel (RPV) Support System.

Item: 12 of 15.

Significant Change: The RPV structural support system of the AP1000 standard design is designed to provide the necessary support for the heavy RPV in the AP1000 standard design. The original anchorage design was bolting into embedded plates of the CA04 structural module. Subsection 3.8.3.1.1 of the AP1000 DCD Tier 2 would be changed to reflect modifications to the RPV support design. In the revised design, there are four support “boxes” or “legs” located at the bottom of RPV's cold leg nozzles. The support boxes are anchored directly to the primary shield wall concrete base via steel embedment plates. This CA04 structural module is no longer used in the new design. The four RV support boxes are safety-related and the design of the RPV associated support structures is consistent with the safe shutdown earthquake design of Seismic Category I equipment. Subsections 3.8.3.5.1 and 5.4.10.2.1 would also be modified.

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with RPV supports are in Chapter 23, Section R, of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Inclusion in the DCD of the changes to the RPV supports contributes to the increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Spent Fuel Pool Decay Heat Analysis and Associated Design Changes.

Item: 13 of 15.

Significant Change: In AP1000 DCD Tier 2 Section 9.1.3, Westinghouse proposed changes to the SFP cooling system. Westinghouse proposed to increase the number of spent fuel storage locations from 619 to 889 fuel assemblies and implement the following associated design changes: (1) Increase in component cooling system (CCS) pump design capacity, (2) increase in the CCS supply temperature to plant components, and (3) changes in the CCS parameters related to the RCPs. The increase in the number of assemblies affects the decay heat removal/SFP heatup analyses. The supporting bases for DCD changes are documented in: TR-111, “Component Cooling System and Service Water System Changes Required for Increased Heat Loads,” APP-GW-GLN-111, Revision 0, dated May 2007 (ADAMS Accession No. ML071500563); TR-103, “Fluid System Changes,” APP-GW-GLN-019, Revision 2, dated October 2007 (ADAMS Accession No. ML072830060); TR-108, “AP1000 Site Interface Temperature Limits,” APP-GW-GLN-108, Revision 2, dated September 2007 (ADAMS Accession No. ML103260072), and TR-APP-GW-GLR-097, “Evaluation of the Effect of the AP1000 Enhanced Shield Building on the Containment Response and Safety Analysis,” Revision 1, dated August 2010 (ADAMS Accession No. ML102220579).

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with the SFP decay heat analysis are in Section 9.2.2 of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Inclusion in the DCD of the changes to the SFP decay heat analysis would contribute to the increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Spent Fuel Rack Design and Criticality Analysis.

Item: 14 of 15.

Significant Change: In DCD Tier 2 Section 9.1.2, Westinghouse proposed changes to the spent fuel racks: (1) to increase the storage capacity by 270 additional fuel assemblies, and (2) to integrate a new neutron poison into the rack design. These changes included a different rack design and associated structural analysis and a revised criticality analysis. These DCD changes are documented in TR-54, “Spent Fuel Storage Racks Structure and Seismic Analysis,” APP-GW-GLR-033, Revision 4, dated June 2, 2010 (ADAMS Accession No. ML101580475); and TR-65, “Spent Fuel Storage Racks Criticality Analysis,” APP-GW-GLR-029, Revision 2, date January 5, 2010 (ADAMS Accession No. ML100082093).

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with the spent fuel rack design and criticality analysis are in Section 9.1.2 of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Inclusion in the DCD of the changes to the spent fuel rack design and criticality analysis would contribute to the increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

Title: Vacuum Relief System.

Item: 15 of 15.

Significant Change: In Revision 18 to AP1000 DCD Tier 2, Chapters 3, 6, 7, 9, and 16, Westinghouse proposed changes to the design of the containment which add a vacuum relief system to the existing containment air filtration system vent line penetration. The proposed vacuum relief system consists of redundant vacuum relief devices inside and outside containment sized to prevent differential pressure between containment and the shield building from exceeding the design value of 1.7 psig, which could occur under extreme temperature conditions.

Each relief flow path consists of a check valve inside containment and a motor operated butterfly valve outside of containment. The redundant relief devices outside containment share a common inlet line with redundant outside air flow entry points. The outlet lines downstream of the outside containment relief devices are routed to a common header connected to the vent line penetration. The redundant relief devices inside containment share a common inlet line from the vent line penetration and have independent discharge lines into containment.

Location within the SER where the changes are principally described:

The details of the NRC's evaluation of Westinghouse's design features associated with the addition of the vacuum relief system are in Chapter 23, Section W, of the SER (ADAMS Accession No. ML103260072).

Evaluation of the Criteria in 10 CFR 52.63(a)(1):

Inclusion in the DCD of the introduction of a containment vacuum relief system would contribute to the increased standardization of this aspect of the design. Therefore, the change meets the finality criterion for changes in 10 CFR 52.63(a)(1)(vii).

The proposed rule would amend the existing AP1000 DCR, in part, to address the requirements of the AIA rule. The AIA rule itself mandated that a DCR be revised, if not during the DCR's current term, then no later than its renewal to address the requirements of the AIA rule. In addition, the AIA rule provided that any COL issued after the effective date of the final AIA rule must reference a DCR complying with the AIA rule, or itself demonstrate compliance with the AIA rule. The AIA rule may therefore be regarded as inconsistent with the finality provisions in 10 CFR 52.63(a) and Section VI of the AP1000 DCR. However, the NRC provided an administrative exemption from these finality requirements when the final AIA rule was issued. See Federal Register notice, 74 FR 28112; June 12, 2009, at 28143-28145. Accordingly, the NRC has already addressed the backfitting implications of applying the AIA rule to the AP1000 with respect to the AP1000 and referencing COL applicants.

The proposed amendment to the AP1000 DCR does not constitute backfitting and is not otherwise inconsistent with finality provisions in 10 CFR part 52. Accordingly, the NRC has not prepared a backfit analysis or documented evaluation for this rule.

For the reasons set out in the preamble and under the authority of the Act, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552; the NRC is proposing to adopt the following amendments to 10 CFR part 52.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0044; Directorate Identifier 2010-NM-059-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On September 26, 2005, we issued AD 2004-19-06 R1, amendment 39-14313 (70 FR 58000, October 5, 2005), for certain Model 767-200, -300, and -300F series airplanes. That AD requires inspections to detect cracking or corrosion of the fail-safe straps between the side fitting of the rear spar bulkhead at body station (BS) 955 and the skin; and follow-on/corrective actions. That AD resulted from reports of cracked and/or corroded fail-safe straps at BS 955 on Model 767-200 series airplanes. We issued that AD to detect and correct fatigue cracking or corrosion of the fail-safe straps, which could result in cracking of adjacent structure and consequent reduced structural integrity of the fuselage.

Since we issued AD 2004-19-06 R1, we have received additional reports of cracks in 51 fail-safe straps on 41 airplanes. There were 42 fail-safe straps repaired, and 9 were not repairable and were replaced. Fail-safe straps were repaired on 33 airplanes with total accumulated flight cycles ranging from 39,886 to 89,236. Fail-safe straps were replaced on 9 airplanes with flight cycles ranging from 12,565 to 31,809, and flight hours ranging from 48,704 to 93,212. In addition, 4 fail-safe straps on 4 airplanes with total accumulated flight cycles ranging from 12,540 to 23,987 and flight hours ranging from 37,634 to 74,823 were replaced due to corrosion damage.

One report was received of a crack found in the “T” fitting that connects the fail-safe strap and the pressure deck. The cracked “T” fitting was found at 13,449 total accumulated flight cycles and 74,008 flight hours, and was located at the lower of the 3 fastener holes common to the fail-safe strap.

We reviewed Boeing Alert Service Bulletin 767-53A0100, Revision 1, dated August 11, 2006; and Revision 2, dated January 15, 2010. Revision 1 of this service bulletin both adds certain Model 767-400ER airplanes to the Effectivity, and removes other airplanes from the Effectivity, of Boeing Alert Service Bulletin 767-53A0100, dated September 26, 2002 (which is identified as the appropriate source of service information for accomplishing the actions specified in the existing AD). Revision 1 also adds procedures for an ultrasonic inspection and expands the inspection area for cracking and corrosion to an area within five inches of the fail-safe strap.

Revision 2 of this service bulletin adds an airplane that had been removed from the Effectivity of Revision 1 of this service bulletin. In addition, Revision 2 of this service bulletin adds procedures for a related investigative action for certain crack findings during the ultrasonic inspection specified in Revision 1 of this service bulletin. The related investigative action involves an open-hole HFEC inspection for cracking at the lower of three fastener holes common to the fail-safe strap and the “T” fitting, and repair if necessary. The repair includes various inspections (i.e., detailed, open-hole HFEC, and surface HFEC) for cracking and corrosion of the “T” fitting and adjacent structure; replacement of the “T” fitting with a new “T” fitting; repair of corrosion within specified limits; and replacement of the fail-safe strap with a new strap, if necessary. The service bulletin specifies to contact Boeing for certain repair and replacement procedures. Repairing the fail-safe strap or replacing the fail-safe strap with a strap having a revised edge configuration eliminates the need for the repetitive inspections only on the side of the airplane on which the corrective action is done.

For airplanes on which a fail-safe strap is replaced with a strap that does not have a revised edge configuration, the service bulletin describes procedures for detailed and surface HFEC inspections for cracks and corrosion of the fail-safe strap, and an ultrasonic inspection for cracks of the fail-safe strap.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This proposed AD would retain all of the requirements of AD 2004-19-06 R1. This proposed AD would expand the applicability statement of the existing AD. This proposed AD would also require accomplishing the actions specified in Revision 2 of the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Information.”

The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• In accordance with a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

We have added a new paragraph (d) to this proposed AD to provide the Air Transport Association (ATA) of America subject code 53, Fuselage. This code is added to make this proposed AD parallel with other new AD actions. We have re-identified subsequent paragraphs accordingly.

We have revised the existing AD to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

Since AD 2004-19-06 R1 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:

We estimate that this proposed AD affects 390 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary repairs/replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these repairs/replacements:

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

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

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

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

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

The Directorate of Defense Trade Controls (DDTC) is responsible for the collection of registration fees from persons in the business of manufacturing, exporting, and/or brokering defense articles or defense services.

To date, registration fees have been received by check or money order and processed manually. The collection of electronic payments will simplify the collection and verification of payments, eliminate the need to manually process and collect returned payments, and eliminate the possibility of lost payments.

Section 122.2(a) is to be revised to provide for electronic payment as the sole means of registration fee submission. The form used for obtaining registration, the DS-2032 (Statement of Registration), has been revised to reflect that fee payments are to be made electronically. Additionally, the certifications previously required through the transmittal letter referenced in § 122.2(b) of the ITAR have been incorporated into the revised DS-2032. Consequently, § 122.2(b) no longer will address a separate transmittal letter, but will address certain certifications to be made on the Statement of Registration that used to be provided via the transmittal letter. The new § 122.2(b) title will be “Statement of Registration Certification.” Definitions for “ownership” and “control” have been removed from part 122 by the removal of § 122.2(c). Definitions for “Foreign Ownership” and “Foreign Control” are to constitute the new § 120.37.

Section 122.3(a) is to be revised to remove reference to the transmittal letter.

The proposed revision to § 129.4(a) is in line with the proposed change in part 122 regarding the provision of electronic payment of registration fees. References to the transmittal letter are to be removed from §§ 129.4(a) and (b).

Title and number of the registration form is to be corrected in § 120.28(a)(2), and § 123.16(b)(9) is to be revised to correct a reference to § 122.2(c) and replace it with a reference to proposed § 120.37.

This proposed amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures contained in 5 U.S.C. 553 and 554. Nevertheless, it is being published as a Notice of Proposed Rule Making, with a 60-day public comment period.

Since this proposed amendment is not subject to the notice-and-comment procedures of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

This proposed amendment does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Department has determined that this proposed rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to his proposed rulemaking.

This proposed amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

This proposed amendment will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this proposed amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this amendment.

The proposed amendment is exempt from review under Executive Order 12866, but has been reviewed internally by the Department of State to ensure consistency with the purposes thereof.

The Department of State has reviewed the proposed amendment in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Paperwork Reduction Act requires all Federal agencies to analyze proposed regulations for potential time burdens on the regulated community created by provisions in the proposed regulations, which require the submission of information. The information collection requirements must be submitted to the Office of Management and Budget (OMB) for approval. Persons are not required to respond to a collection of information unless it displays a currently valid OMB control number or is exempt from the PRA.

As part of its continuing effort to reduce paperwork and respondent burden, the Department of State proposes to change the reporting requirement on the DS-2032, Statement of Registration. This notice serves to inform the general public and Federal agencies of the opportunity to comment on this information collection in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ). This helps to ensure that the public understands the Department's collection instructions, respondents provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.

The information collection (IC) requirements for the current Statement of Registration are approved under OMB control number 1405-0002.

The export, temporary import, temporary export and brokering of defense articles, defense services, and related technical data are licensed by the Directorate of Defense Trade Controls (DDTC) in accordance with the International Traffic in Arms Regulations (“ITAR,” 22 CFR parts 120- 130) and Section 38 of the Arms Export Control Act (AECA). Those who manufacture or export defense articles, furnish defense services, or engage in brokering activities, must register with the Department of State. We are soliciting public comments to permit the Department to:

• Evaluate whether the proposed information collection is necessary for the proper performance of our functions.

• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.

• Enhance the quality, utility, and clarity of the information to be collected.

• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.

Currently, the ITAR, § 122.2(b), requires the respondent to provide separate correspondence (via a “transmittal letter,” to accompany the DS-2032, Statement of Registration, submission) certifying criminal history, eligibility, and foreign ownership. Often, this mandate was overlooked by the respondent, resulting in the return without action of the incomplete application. The revised DS-2032 incorporates these certifications within the form, only requiring the user to select the appropriate response with a single click and providing the option to provide a response within the form.

The Department proposes to change other reporting requirements on the DS-2032. The DS-2032 was modified to include additional data fields necessary to match electronic payment to the DS-2032. Whereas payments will be received electronically, respondents will continue submitting the DS-2032 in paper format. New data elements specific to electronic payment were not previously required on the DS-2032 because such information is visible on U.S. and foreign bank drafts.

Additionally, data elements were added to ensure clarification during analysis as well as standardization of responses. Specifically, necessary information is listed in the form, only requiring the respondent to make a selection by simply clicking the applicable checkbox. Country and state information is now listed via a pick list requiring a selection rather than manual insertion of information. This enhancement eliminates typographical errors and the misinterpretation of information requested which often results in the submission of incorrect information.

With these proposed changes, the estimated burden time for completion will be reduced from two (2) hours to one (1) hour.

This proposed change does not impose any new recordkeeping requirements.

Summary of Proposed Collection: The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the Federal Register . We are conducting this process in accordance with the Paperwork Reduction Act of 1995.

• Title of Information Collection: DS-2032 Statement of Registration.

• OMB Control Number: 1405-0002.

• Type of Request: Approved of Information Collection.

• Originating Office: Bureau of Political-Military Affairs, Directorate of Defense Trade Controls, PM/DDTC.

• Form Number: DS-2032.

• Respondents: Business and Nonprofit Organizations.

• Estimated Number of Respondents: 10,435.

• Estimated Number of Responses: 9,600.

• Average Hours Per Response: 1 hours.

• Total Estimated Burden: 9,600 hours.

• Frequency: Annually and On Occasion.

• Obligation to Respond: Mandatory.

Comments from the public on the information collection may be submitted to OMB up to 60 days after February 24, 2011.

Comments should be sent to the Department of State Desk Officer in the Office of Management and Budget (OMB) at the Office of Information and Regulatory Affairs. Comments may be submitted to OMB by the following methods:

• E-mail: oira_submission@omb.eop.gov. You must include the DS form number, information collection title, and OMB control number in the subject line of your message.

• Fax: 202-395-5806. Attention: Desk Officer for Department of State.

OMB requests that comments be received within 60 days of publication of the Proposed Rule to ensure their consideration. Please note that comments submitted to OMB are a matter of public record. You must include the DS form number (if applicable), information collection title, and OMB control number in any correspondence.

Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed information collection and supporting documents, to Tanya Phillips, Bureau of Political Military Affairs, U.S. Department of State, SA-1, 12th Floor, Washington, DC 20522, who may be reached on (202) 663-2825 or phillipsta@state.gov.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, parts 120, 122, 123, and 129 are proposed to be amended as follows:

In the final rules section of this Federal Register , EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

For additional information, see the direct final rule, which is located in the rules section of this Federal Register .

Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq. ) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of the finding promptly in the Federal Register .

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.

On June 22, 2009, we received a petition, dated June 19, 2009, from James A. Bailey and Natalie A. Bailey, requesting that the wild plains bison be listed as threatened or that each of its four major ecotypes be considered DPSs and listed as threatened (Bailey and Bailey 2009, cover page). The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a). In a July 14, 2009, letter to the petitioners, we responded that we reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the subspecies under section 4(b)(7) of the Act was not warranted. We also stated that due to staff and budget limitations, we would not be able to begin work on a 90-day finding for this petition until Fiscal Year 2010 or 2011. On August 25, 2010, we received a letter from the petitioners requesting that we consider (1) New information regarding genetic diversity; (2) a publication by Gates et al., 2010; (3) the National Park Service's (NPS) draft environmental impact statement on a proposed brucellosis remote vaccination program; and (4) any new information that was added to our files since the date of the original petition. This finding addresses the petition and all information readily available to us at this time.

We received a petition to list the bison herd at Yellowstone National Park (Yellowstone) in the northwest corner of Wyoming as a subspecies or “distinct population group” on February 11, 1999. We completed a 90-day finding on August 15, 2007 (72 FR 45717). Based upon the information available at that time, we determined that there was substantial information indicating that the Yellowstone bison herd may meet the criteria of discreteness and significance as defined by our policy on DPSs. However, we also determined that there was not substantial information indicating that listing the Yellowstone bison herd was warranted throughout all or a significant part of its range, and a status review was not conducted.

Bison occupied Eurasia about 700,000 years ago and moved across the Bering Land Bridge into Alaska during the middle Pleistocene Epoch 300,000 to 130,000 years ago (Martin 1970, p. 220; Kurtén and Anderson 1980, p. 39; Gates et al. 2010, p. 5). Bison moved further south into the grasslands of central North America as ice sheets retreated 130,000 to 75,000 years ago (Gates et al. 2010, p. 5). The genus Bison is represented by two extant species, the American bison ( Bison bison ) and the European bison ( B. bonasus ) (Halbert 2003, p. 1; Gates et al. 2010, p. 15).

Linnaeus first classified the bison in 1758, assigning the animal to Bos, the same genus as domestic cattle ( Bos taurus ) (Gates et al. 2010, p. 13). During the 19th century, taxonomists determined that there was adequate anatomical distinctiveness to warrant assigning the bison to its own genus, Bison (Gates et al. 2010, p. 13). Since then, taxonomists have debated the validity of the genus. Some recommend returning the species to the genus Bos (Boyd 2003, p. 27; Halbert 2003, p. 2). However, most sources, including the American Society of Mammalogists, the Integrated Taxonomic Information System (ITIS), and the International Union for Conservation of Nature (IUCN), consider Bison as a separate genus from Bos (Meagher 1986, p. 1; Wilson and Ruff 1999, pp. 342-343; Reynolds et al. 2003, p. 1010; Gates et al. 2010, p. 15; ITIS 2010, p. 1). At this time, we support continued placement of bison in the genus Bison because the majority of taxonomic experts consider this classification to be correct.

American bison is divided into two subspecies, first recognized by Rhoads in 1897 (Gates et al. 2010, p. 15). The two subspecies of American bison, plains bison ( B. b. bison ) and wood bison ( B. b. athabascae ), diverged approximately 5,000 years ago (Halbert 2003, p. 1). Many authors have acknowledged subspecific status, although some attribute differences in morphology to environmental influences and not to genetics (Reynolds et al. 2003, p. 1009). Differences in physical traits between the two subspecies are not affected by geographic location, suggesting that differences are genetically controlled (Boyd 2003, p. 32; Reynolds et al. 2003, p. 1009; Gates et al. 2010, pp. 15-18). However, due to the recent divergence of the two bison subspecies, current genetic analysis techniques may not yet be able to detect the differences (Boyd 2003, p. 33). At this time, we support continued recognition of two subspecies of American bison because of geographic separation, morphological differences, and greater genetic differences between the two subspecies than within either of the two subspecies (Gates et al. 2010, pp. 15-18).

Although the two entities are the same species ( Bison bison bison ), the petitioners generally limit their discussion to “wild” plains bison and assert that plains bison in commercial herds do not contribute to restoration of wild plains bison (Bailey and Bailey 2009, p. 5). Commercial herds are typically managed by private entities for production of meat and other commodities. Wild plains bison currently exist only in conservation herds, which are typically managed by governments and environmental organizations for the purpose of conserving the subspecies as wildlife in their native ecosystem. The petitioners contend that commercial herds are selectively bred, mixed with cattle genes, removed from natural selection, and not legally classified as wildlife under State laws (Bailey and Bailey 2009, p. 5). Further, the petitioners claim that wild plains bison in many conservation herds also may undergo selective culling, contain cattle genes from early efforts to crossbreed with domestic cattle, are removed from some aspects of natural selection, and in some cases are not legally classified as wildlife. These considerations are discussed in more detail under Factors B, D, and E.

Neither the Act nor our implementing regulations expressly address whether commercial populations should be considered part of an entity being evaluated for listing, and no Service policy addresses the issue. Consequently, in our determination of how to address commercial populations in our analysis, we considered the following: (1) Our interpretation of the intent of the Act with respect to the disposition of native populations, and (2) criteria from another organization (IUCN) regarding the consideration of commercial populations in species evaluations.

Section 2(b) of the Act states that the purposes of the Act “are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth.” In recent decisions, including a 12-month finding published on September 8, 2010 (75 FR 54707), for the Arctic grayling ( Thymallus arcticus ) and a 12-month finding published on September 22, 2010, for the plant Agave eggersiana (75 FR 57720), we have focused on wild populations in our analysis of the species' status and potential threats because these are the populations that contribute to conservation of the species. Therefore, we believe that considering populations that contribute to species conservation in a listing evaluation is consistent with the intent of the Act.

The IUCN follows similar criteria in their species evaluations. The IUCN uses its Red List system to evaluate the conservation status and relative risk of extinction for species, and to catalogue and highlight plant and animal species that are facing a higher risk of global extinction ( http://www.iucnredlist.org ). The IUCN does not use the term “listable entity” as the Service does; however, IUCN does clarify that their conservation ranking criteria apply to any taxonomic group at the species level or below (IUCN 2001, p. 4). Further, the IUCN guidelines for species status and scope of the categorization process focus on wild populations inside their natural range (IUCN 2001, p. 4; 2003, p. 10) or so-called “benign” or “conservation introductions,” which are defined as attempts to establish a species, for the purpose of conservation, outside its recorded distribution, when suitable habitat is lacking within the historical range (IUCN 1998, p. 6; 2003, pp. 6, 10). Commercial plains bison herds are not eligible for consideration in the guidelines for evaluating conservation status under the IUCN (IUCN 2008, http://www.iucnredlist.org ). In effect, the IUCN delineates between commercial plains bison herds and wild plains bison in conservation herds, in that commercial herds do not qualify for evaluation under the IUCN Red List system.

There does not appear to be any conservation value for plains bison in commercial herds, as they are not used in restoration programs. Instead, their primary purpose is the production of meat and other commodities for commercial purposes. Our interpretation is that the Act intended to conserve species in their native ecosystems. We are not considering plains bison managed for production of meat and other commodities in this finding because we do not believe that individuals propagated and managed for commercial uses aid in the conservation or the recovery of the subspecies in the wild. For the purposes of this finding, we are analyzing status and potential threats to a petitioned entity that includes plains bison managed primarily for purposes of wildlife and ecosystem conservation, hereby referred to as wild plains bison, even though no bison herd has remained in a completely wild state since prehistoric times (see our discussion on Significance, below). Consequently, we do not address commercial bison herds further in this finding.

In summary, we accept the characterization of plains bison as a valid subspecies because the preponderance of currently available information indicates that the genus, species, and subspecies nomenclature are correct. Furthermore, we will only consider wild plains bison in conservation herds in this evaluation because we do not consider it to be within the intent of the Act to consider plains bison in commercial herds for listing.

Bison are the largest native terrestrial mammal in North America (Reynolds et al. 2003, p. 1015). Wood bison are generally larger than the plains bison, but there is an overlap in size and dimensions between the two subspecies (Meagher 1986, p. 1). Body mass is 1,200 to 2,000 pounds (lbs) (544 to 907 kilograms (kg)) in mature males and 700 to 1,200 lbs (318 to 545 kg) in mature females (Meagher 1986, p. 1). Bison are brown, with longer hair over the forehead, neck, shoulder hump, and front-quarters; and shorter hair over the rear and tail (Meagher 1986, p. 1; Reynolds et al. 2003, p. 1009). The head is large and carried low on a short, thick neck (Meagher 1986, p. 1; Reynolds et al. 2003, p. 1009). Both sexes have short, black horns curving upward and inward, which are never shed (Meagher 1986, p. 1; Reynolds et al. 2003, p. 1009).

Sexual maturity most commonly occurs at 2 to 4 years of age; however, bulls do not usually breed until age 6 (Meagher 1986, p. 4). Female wild plains bison typically breed as 2-year olds and have their first calf at 3 years (Gates et al. 2010, p. 49). Gestation is approximately 285 days (Meagher 1986, p. 4). Calving season is from mid-April through May, with one calf being born; twins are rare (Meagher 1986, p. 4). Females typically breed until at least 16 years of age, although they may not breed in every year (Gates et al. 2010, p. 49).

Wild plains bison are grazers throughout the year, taking mostly grasses and sedges (Meagher 1986, p. 5; Reynolds et al. 2003, p. 1034). Most free-ranging wild plains bison appear to be seasonally migratory (Meagher 1986, p. 5). Females of all ages, calves, and young males form herds (Meagher 1986, p. 6). Older bulls temporarily join these groups in late July to mid-August as rut approaches, but are otherwise found singly or in small groups (Meagher 1986, p. 6; Reynolds et al. 2003, p. 1020). It is likely that the vast historical plains bison herds had a considerable impact on vegetation within their traditional ranges, through grazing, nutrient cycling, and physical disturbance (Reynolds et al. 2003, p. 1037). Prairie dog colonies ( Cynomys spp. ) are preferentially grazed by wild plains bison and also are used for grooming and wallowing (Reynolds et al. 2003, p. 1039).

Historically, habitat for the wild plains bison encompassed approximately 2.8 million square miles (mi 2 ) (7.2 million square kilometers (km 2 ), with approximately 1.9 million mi 2 (5.0 million km 2 ) west of the Mississippi River (Sanderson et al. 2008, p. 257). Wild plains bison were most abundant on the Great Plains, but their range also extended eastward into the Great Lakes region, beyond the Allegheny Mountains, and into Florida; westward into Nevada, the Cascade Mountains, and the Rocky Mountains; northward into mid-Alberta and Saskatchewan; and southward along the Gulf of Mexico into Mexico (Hornaday 1889, p. 377; Boyd 2003, p. 20; Reynolds et al. 2003, p. 1012; Gates et al. 2010, p. 56). Wild plains bison were eliminated west of the Rocky Mountains and east of the Mississippi River by the early 1800s (Halbert 2003, p. 4). By 1889, only a few wild plains bison remained in the Texas Panhandle, Colorado, Wyoming, Montana, and the western Dakotas, as well as a small number in captive herds (Hornaday 1889, p. 525). Today, wild plains bison occur in parks, preserves, other public lands, and on private lands throughout, and external to, their historical range.

Historical estimates regarding numbers of wild plains bison range from 30 to 75 million (Shaw 1995, p. 149). At the close of the Civil War, wild plains bison probably numbered in the tens of millions (Shaw 1995, p. 150). Intensive market hunting for hides and meat occurred following the Civil War; by 1889, a minimum of 285 free-ranging wild plains bison and 256 captive plains bison were estimated to remain (Hornaday 1889, p. 525). Recent population estimates range from 400,000 to 500,000, with approximately 20,500 animals in 62 conservation herds (Gates et al. 2010, p. 57) and the remainder in approximately 6,400 commercial herds (Gates et al. 2010, p. 57).

In the 1800s, wild plains bison declined from approximately 30 million individuals rangewide to perhaps as few as 541. In the late 1800s, a few concerned individuals undertook independent efforts to conserve the remaining plains bison (Hornaday 1889, pp. 458-464; Freese et al. 2007, p. 176). The American Bison Society formed in 1905 and pressed Congress to establish public bison herds in several locations, including Wichita Mountains National Wildlife Refuge (NWR) in Oklahoma, National Bison Range in Montana, Sullys Hill National Game Preserve in North Dakota, and Fort Niobrara NWR in Nebraska (Boyd 2003, p. 23). Yellowstone National Park (NP) and Elk Island National Park in Alberta, Canada, also participated in early efforts to conserve the wild plains bison. By 1970, an estimated 30,000 plains bison occurred in North America, approximately half in public conservation herds and half in private commercial herds (Boyd 2003, p. 23). By 2003, the number of plains bison in commercial herds increased dramatically to approximately 300,000 to 500,000 (Boyd 2003, p. 23; Halbert 2003, p. iii), while wild plains bison in conservation herds increased modestly to approximately 19,200 (Boyd 2003, p. 23). In 2007, there were approximately 420,000 plains bison in commercial herds in the United States and Canada (National Bison Association 2010). In 2008, there were an estimated 20,500 wild plains bison in conservation herds (Gates et al. 2010, p. 57). Population trends for wild plains bison in conservation herds appear stable to slightly increasing in recent years. The petitioners also note that population trends for wild plains bison in conservation herds have been stable since the 1930s, based upon information presented by Freese et al. (2007, p. 177) (Bailey and Bailey 2009, p. 15).

The most recent information we have in our files regarding population status and trends of wild plains bison in conservation herds is presented in the following table. All information is from Boyd (2003, Appendix 1), with the exception of information for Rocky Mountain Arsenal NWR (Hastings 2011, pers. comm.) and House Rock Valley State Wildlife Area (Northern Arizona University 2009, p. 15).

The U.S. Department of Interior (USDOI) Bison Conservation Initiative provides a framework for managing wild plains bison within the USDOI (USDOI 2008, p. 3). This initiative specifies that the USDOI will: (1) Manage wild plains bison on their lands based on the best available science, seeking to restore them on appropriate landscapes; (2) apply adaptive management principles; (3) seek to develop genetic tests to maximize genetic diversity in herds; (4) seek to develop new techniques to diagnose, prevent, and control contagious diseases; and (5) work with interested parties (USDOI 2008, p. 2). One priority of the Initiative is to actively seek opportunities to increase existing herds to 1,000 or more wild plains bison, or establish new herds that can reach that size (USDOI 2008, p. 2). This priority describes numeric goals and allows the other seven priorities, including genetic diversity, disease, and introgression with cattle genes, to also be addressed. This initiative addresses the major concerns of wild plains bison management on USDOI lands, including genetics, disease, introgression with cattle genes, and the number and size of herds.

Forty-two wild plains bison conservation herds in the United States were described in 2003; of these, 22 are solely or jointly managed by States, 12 herds are solely or jointly managed by Federal agencies, 9 herds are solely or jointly managed by private organizations, and 2 herds are managed by municipalities (Boyd 2003, pp. 144-147). An additional eight herds are managed by Federal or provincial agencies in Canada (Boyd 2003, p. 147). Since 2003, 12 additional wild plains bison herds have been enumerated (Gates et al. 2010, p. 57). Initiatives for new wild herds also are under way, including herds managed by The Nature Conservancy (TNC) in Alberta and in South Dakota, by American Prairie Foundation and World Wildlife Fund in Montana, by the Cheyenne River Sioux Tribe in South Dakota, by the Lower Brule Sioux Tribe in South Dakota, and by Rosebud Sioux Tribe in South Dakota (Freese et al. 2007, p. 182). Management of wild plains bison for conservation purposes appears to be active in both the private and public sectors. An additional 6,400 herds are managed for commercial purposes (Gates et al . 2010, p. 57).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

In making this 90-day finding, we evaluated whether information regarding the threats to the wild plains bison, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.

In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act. We found no information to suggest that threats are acting on the wild plains bison such that the species may become extinct now or in the foreseeable future.

The petitioners note the historical destruction and modification of plains habitat due to conversion to cropland and development of grazing land for cattle (Bailey and Bailey 2009, p. 15). They assert that there are ongoing habitat impacts from dam construction, cattle grazing, cropland conversion, tree invasion, wetland drainage, absence of fire, subdivision of land for housing and other construction, and energy development (Bailey and Bailey 2009, p. 16). They further assert that with the possible exceptions of cattle grazing and dam construction, all of these activities are expected to increase in the foreseeable future (Bailey and Bailey 2009, p. 16). The petitioners also assert that a lack of populations on a minimum range size of 500 mi 2 (1,300 km 2 ) of habitat threatens the wild plains bison, and only the Yellowstone herd meets this standard (Bailey and Bailey 2009, p. 21). The petitioners contend that the lack of suitable habitat is evidenced by dramatic declines in grassland birds (Bailey and Bailey 2009, p. 22).

We agree that there have been historical destruction and modification of habitat due to conversion to cropland and development of grazing land for cattle. Information in our files indicates that cropland conversion, woody plant invasion, and cattle grazing have altered native grasslands (Ricketts et al. 2008, pp. 273-274), and cultivation has reduced the tallgrass portion of the Great Plains from approximately 168 million acres (ac) (68 million hectares (ha)) to less than 5 percent of that amount (Knapp et al. 1999, p. 39). American bison, including both plains bison and wood bison in conservation and commercial herds, currently occupy less than 1 percent of their historical range (Sanderson et al. 2008, p. 253).

The petitioners do not provide citations to support their assertions regarding the present or threatened destruction, modification, or curtailment of habitat or range. Their arguments seem to rely on the losses of individuals and habitat that occurred in the 1800s. We do not have information indicating that present or potential future impacts to habitat or range from dam construction, cattle grazing, cropland conversion, tree invasion, wetland drainage, absence of fire, subdivision, or energy development are threats to wild plains bison.

Despite the historical loss of grasslands, much suitable habitat remains available, and additional habitat has often been only degraded rather than converted. There is potential for rapid recovery of these degraded grasslands (Ricketts et al. 2008, p. 288). Boyd (2003, pp. 95, 148-151) states that a lack of suitable habitat is limiting wild plains bison recovery, but also notes that 25 out of 50 wild plains bison herds that she evaluated have potential for expansion. The petitioners note that wild plains bison restoration opportunities exist on public lands managed by the USDOI and the U.S. Department of Agriculture (USDA), often mixed with State public lands (Bailey and Bailey 2009, p. 10). National Grasslands managed by the U.S. Forest Service (USFS) account for nearly 4 million ac (1.6 million ha), with some parcels of suitable habitat currently large enough to maintain wild plains bison herds (Olson 1997, p. 4; Ricketts et al. 2008, p. 275). Native American Tribes also have large tracts of suitable habitat that could support wild plains bison (Boyd 2003, p. 106; Freese et al. 2007, p. 181).

When determining whether a species should be listed, we examine the current status of a species, which necessitates examining the species in its current range and analyzing current and future threats to the remainder of the species' distribution. The information the petitioner presented on lost historical range, by itself, does not provide substantial information that listing the wild plains bison may be warranted. However, loss of historical range may be relevant to the analysis of the current and future viability of the species, if the factors that caused the past decline are shown to be operating on populations within the current range. Once wild plains bison were protected from market hunting, beginning in the late 1800s, their numbers rapidly increased (Gates et al. 2010, p. 9). We do not believe that the market hunting that led to the precipitous decline of wild plains bison in the 1800s is likely to be repeated. Habitat is currently available to accommodate additional herds. Furthermore, recent stable-to-slightly increasing population trends in conservation herds do not indicate that habitat is a limiting factor for wild plains bison.

The petitioners did not provide any citations and we do not have any information in our files to support a proposed minimum of 500 mi 2 (1,300 km 2 ) of habitat necessary to maintain an ecologically significant herd. The petitioners state that only the Yellowstone herd meets this proposed standard, and the Henry Mountain herd nearly meets it. We are aware of three additional wild plains bison herds that occupy more than 500 mi 2 (1,300 km; 2 ) of habitat: Farewell Lake in Alaska, Pink Mountain in British Columbia, and Primrose Air Weapons Range in Alberta and Saskatchewan. The first two herds are outside of the historical range of the plains bison, and the Primrose herd is at the periphery of the historical range. Nevertheless, five herds meet or exceed 500 mi 2 (1,300 km 2 ). We agree that, in general, the larger the extent of habitat available, the greater the ecological significance. However, we believe that herds residing on less than 500 mi 2 (1,300 km 2 ) also can have ecological significance. We have no evidence that indicates that wild plains bison in herds occupying less than 500 mi 2 (1,300 km 2 ) of habitat are threatened from lack of habitat. Most herds, whether occupying more or less than this amount, exhibit stable to increasing population trends. Therefore, we do not believe that there is substantial information indicating that listing may be warranted due to a lack of herds occupying at least 500 mi 2 (1,300 km 2 ) of habitat.

The petitioners also contend that the lack of suitable habitat is evidenced by dramatic declines in grassland birds (Bailey and Bailey 2009, p. 22). Grassland bird abundance and diversity is one indicator of a healthy ecosystem, as the petitioners suggest, but addressing their population trends is beyond the scope of this document. We have no evidence that there is a relationship between grassland bird abundance and wild plains bison persistence.

In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to present or threatened destruction, modification, or curtailment of habitat or range.

The petitioners do not assert that overutilization is a threat to the wild plains bison. They do note that, historically, wild plains bison numbered in the tens of millions, but were subsequently reduced to near extinction (Bailey and Bailey 2009, p. 3). They also suggest that hunting may be an appropriate management tool (Bailey and Bailey 2009, p. 11).

We agree that there was a dramatic historical decline in numbers of wild plains bison due to market hunting and, to a lesser extent, subsistence hunting and recreational shooting (Hornaday 1889, pp. 499-525; Boyd 2003, p. 22; Freese et al. 2007, p. 176; IUCN 2008). However, market hunting for wild plains bison ended in 1884 (Hornaday 1889, p. 513) and is no longer a factor. We also agree that hunting can be an appropriate management tool. Limited authorized hunting of wild plains bison currently occurs on three public herds in the contiguous United States, four herds in Alaska, and five herds in Canada (Reynolds et al. 2003, pp. 1047-1048).

In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes.

The petitioners note that wild plains bison in the Greater Yellowstone Ecosystem are infected with brucellosis ( Brucella abortus ), which they assert is a minor direct threat, but indirectly severely limits the herd because of limitations imposed by disease management (Bailey and Bailey 2009, pp. 8, 21). They note that management for brucellosis can involve capture, retention, handling, culling, hazing, and vaccination and assert that this interferes with natural selection, may enhance disease transmission, alters age structure, and limits herd numbers (Bailey and Bailey 2009, p. 21). They also contend that vaccinations in general subvert natural selection and promote domestication (Bailey and Bailey 2009, p. 21). The petitioners did not cite predation as a threat.

Brucellosis is a bacterial infection that occurs in cattle, bison, and other mammals (Cook et al. 2004, p. 254; Seabury et al. 2005, p. 104). It has been eradicated from all commercial bison herds and most wild bison herds in the United States through improved management (Seabury et al. 2005, p. 105).

Wild plains bison and elk ( Cervus elaphus ) in the Greater Yellowstone Area are the last remaining reservoirs of brucellosis in the United States (Aune et al. 2007, p. 205). Brucellosis is not a direct threat, because reproduction is only marginally limited, but wild plains bison can be indirectly affected by the potential risk that infected bison herds pose to the livestock industry. Wild plains bison leaving Yellowstone NP in the winter on the northern and western boundaries are subject to hazing, vaccination, radio-telemetry, capture, testing, and slaughter of animals that test positive for the disease (Aune et al. 2007, p. 206). Transmission of brucellosis from bison to cattle has been demonstrated in captive studies, but there are no confirmed cases of transmission in the wild (Boyd 2003, p. 80).

In December 2000, following more than 10 years of collaborative planning, the USDOI (NPS) and the USDA (Animal and Plant Health Inspection Service and USFS) signed a Record of Decision for a joint bison management plan for Yellowstone and the State of Montana (USDOI and USDA 2000, p. 3). The intent of this plan is to preserve Yellowstone's wild plains bison and minimize the potential risk of transmission of brucellosis from bison to cattle (USDOI and USDA 2000, p. 6). This separation is attempted through hazing of wild plains bison back into Yellowstone, followed by, when necessary, capture, testing, and slaughter or release of captured bison, depending on test results (USDOI and USDA 2000, p. 6). Agencies allow wild plains bison outside of Yellowstone in areas without cattle (USDOI and USDA 2000, p. 11). If severe winter conditions exist and wild plains bison numbers drop below 2,300, the agencies will temporarily halt slaughter of infected bison (USDOI and USDA 2000, pp. 13, 34). This plan is a comprehensive approach to protecting wild plains bison in the Park and minimizing the risk of brucellosis transmission to cattle grazing on adjacent lands. The NPS has recently proposed a remote vaccination program for wild plains bison in Yellowstone that would minimize capture and handling of bison (NPS 2010, p. iii).

Brucellosis has been eradicated from all wild plains bison herds in the United States, with the exception of the two herds in the Greater Yellowstone Area (Yellowstone and Jackson herds). The Jackson herd is jointly managed by Grand Teton National Park and the Service's National Elk Refuge. Disease management is ongoing in these two herds. The petitioners contend that the hazing, capture, vaccination, and culling that may occur subvert natural selection, may enhance disease transmission, alter age structure, and limit herd numbers (Bailey and Bailey 2009, p. 21). However, the petitioners did not provide evidence to support that these activities are a threat to the status of the species such that the species may warrant listing as threatened or endangered. Furthermore, recent stable-to-increasing population trends do not indicate that management for brucellosis is a limiting factor for wild plains bison in the Greater Yellowstone Area. Additionally, disease management is often an essential aspect of wildlife management.

In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to disease or predation.

The petitioners assert that existing Federal and State regulatory mechanisms for wild plains bison conservation are inadequate (Bailey and Bailey 2009, pp. 16-19). They cite the Interagency Bison Management Plan for Yellowstone NP, the USDOI's Bison Conservation Initiative, Charles M. Russell NWR, National Grasslands management, and legal designations by the States as examples of inadequate regulations where more could be done to restore wild plains bison. They also assert that management by private programs is inadequate (Bailey and Bailey 2009, p. 19).

We consider plans and initiatives to be voluntary agreements that provide guidance for better managing wild plains bison, rather than regulatory mechanisms. Therefore, we discuss the Interagency Bison Management Plan for Yellowstone under Factor C, because it focuses on disease. The USDOI's Bison Conservation Initiative and private programs are discussed under Background. Management of wild plains bison on NWRs and National Grasslands, and legal designations by States, are discussed under this factor. We evaluate the inadequacy of existing regulatory mechanisms from the standpoint of the other factors. If there is not substantial information that listing a species may be warranted due to another factor, then the regulations affecting that factor cannot be considered inadequate.

The National Wildlife Refuge System Administration Act established the National Wildlife Refuge System and identified a primary mission of wildlife conservation. The Service manages over 500 National Wildlife Refuges and their satellites. Wild plains bison conservation is a National Wildlife Refuge System priority (Jones and Roffe 2008, p. 5). Purposes of wild plains bison management include: (1) To fulfill a legal mandate as part of establishing a Refuge, (2) to conserve bison, (3) to provide education and recreation for the public, (4) to manage habitat, (5) to protect cultural or historic significance, and (6) to carry out research (Jones and Roffe 2008, p. 5). Charles M. Russell NWR is one of eight National Wildlife Refuges in the contiguous United States that include wild plains bison management among their priorities (Jones and Roffe 2008, p. 3). Wild plains bison management is at an early stage at Charles M. Russell NWR, with only a small number of bison currently present. The other refuges with wild plains bison are Wichita Mountains NWR in Oklahoma (herd founding date 1907), the National Bison Range in Montana (herd founding date 1908), Fort Niobrara NWR in Nebraska (two herds, founding dates 1913 and 1919), Sullys Hill National Game Preserve in North Dakota (herd founding date 2006), Neal Smith NWR in Iowa (herd founding date 1996), the National Elk Refuge in Wyoming (jointly managed with Grand Teton National Park; herd founding date 1948), and Rocky Mountain Arsenal NWR in Colorado (herd founding date 2007). The Service has a strong and active commitment to wild plains bison conservation and ecological restoration, and we do not believe that there is substantial information indicating that listing may be warranted due to perceived inadequacies in refuge planning at Charles M. Russell NWR.

The USFS administers 20 National Grasslands consisting of approximately 3.8 million ac (1.6 million ha) in 13 States, but the grasslands are primarily in Colorado, North Dakota, South Dakota, and Wyoming (Olson 1997, p. 4). According to the Federal Land Policy and Management Act, these grasslands are to be administered under sound and progressive principles of land conservation and multiple use (36 CFR part 213). Approximately 189 million ac (77 million ha) of National Forests also are managed by the USFS. We believe that several National Grasslands and National Forests are of sufficient size and habitat type to support wild plains bison. Wild plains bison on USFS lands are typically the result of overflow from herds on NPS lands (such as the Yellowstone herd) (USDOI and USDA 2000, p. 3), or are State-owned herds (such as the House Rock Valley herd) (Northern Arizona University 2009, p. 1). These wild plains bison are adequately protected by Federal laws and regulations mandating how USFS lands are managed. We do not believe that there is substantial information indicating that listing may be warranted due to lack of actions on the part of the USFS.

Plains bison fall into an unusual legal classification that can complicate understanding the management intent for a given herd (Freese et al. 2007, p. 181). Their legal status can be either domestic livestock or wildlife among various Federal, State, and provincial jurisdictions across North America (Gates et al. 2010, p. 66). Plains bison are managed as captive or free-ranging wildlife on National Parks and National Wildlife Refuges. They have dual status (herds may be considered domestic livestock or wildlife, depending on whether they are commercial or conservation herds) in Alaska; Arizona; Idaho; Utah; Missouri; Montana; New Mexico; South Dakota; Texas; Wyoming; British Columbia; Saskatchewan; and Chihuahua, Mexico (Gates et al. 2010, pp. 66-73). Plains bison are classified solely as domestic livestock in Colorado, Illinois, Iowa, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, Nevada, Oklahoma, Alberta, and Manitoba, regardless of whether they are in commercial or conservation herds (Gates et al. 2010, pp. 66-73). Nevertheless, wild plains bison that are classified as domestic livestock and are in conservation herds are managed for purposes of wildlife conservation, and not for production of meat and other commodities. Therefore, they are not adversely affected by their legal designation. A more uniform and straightforward classification of plains bison could simplify the regulatory status by which they are managed, but we do not believe that there is substantial information indicating that listing may be warranted due to their legal status.

In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to the inadequacy of existing regulatory mechanisms.

The petitioners assert that loss of genetic diversity threatens the wild plains bison, and that a minimum herd size of 2,000 animals is required to provide genetic diversity, noting that only 1 herd (Yellowstone) fulfills this requirement (Bailey and Bailey 2009, p. 19). They contend that management activities such as roundups, culling, protection from predators, pasture rotation, supplemental feeding, and vaccination lead toward domestication and genomic extinction (Bailey and Bailey 2009, p. 20).

The petitioners assert that introgression (hybridization) with cattle genes threatens the wild plains bison, and that only seven herds have been found to be free of cattle genes (Bailey and Bailey 2009, p. 20). The petitioners also allude to impacts from climate change, noting that the presence of at least one wild plains bison herd in each of the four major ecotypes could provide redundancy, resiliency, and perhaps genetic adaptations in the event of global warming (Bailey and Bailey 2009, pp. 11-12).

Preservation of genetic diversity in the wild plains bison is essential to its conservation (Boyd 2003, p. 60). Genetic diversity provides flexibility for evolutionary change and adaptation (Gardipee 2007, p. 1; Gates et al. 2010, p. 19). The population decline for wild plains bison was severe—from tens of millions to possibly as low as 541 animals. Demographic bottlenecks such as this, and resultant founder effects, genetic drift, and inbreeding, can reduce genetic diversity (Boyd 2003, p. 60). The consequences of a bottleneck depend on the severity of the decline and how quickly the population recovers (Boyd 2003, p. 60).

The small numbers of plains bison remaining after the bottleneck resulted in very few founders and the possibility for genetic drift, which involves the random change in gene frequencies leading to the loss of certain unique DNA sequences in a particular gene type (allele) from one generation to the next (Boyd 2003, pp. 60-61). Small populations also may experience inbreeding or highly skewed gender ratios, which can lead to the expression of deleterious alleles, the decreased presence of both dominant and recessive alleles (decreased heterozygosity (decreased hybridization of genes; an indicator of poor genetic health), lower fecundity, and developmental defects (Boyd 2003, p. 61). However, the duration of the bottleneck for plains bison was relatively short (Halbert 2003, p. 52), and the population recovered quickly (Boyd 2003, p. 60). Pre-bottleneck wild plains bison numbers, movement, and distribution suggest widespread interbreeding and significant genetic homogeneity among continental populations. The selection of captive and wild plains bison used in early foundation herds represented a large portion of the historical range and, therefore, likely captured a large portion of pre-bottleneck genetic variation (Halbert 2003, p. 52). Today's wild plains bison have substantially greater genetic variation than reported for other mammalian species that have experienced similar bottlenecks (Halbert 2003, p. 51). In general, populations of wild plains bison that have been tested display a moderately high level of overall genetic diversity, with notable differences in overall allelic variation and heterozygosity (Halbert 2003, p. 60).

A minimum viable population (MVP) is the smallest population size that provides a high probability (typically 95 percent) of persistence for a given period of time (typically, 100 years) (Boyd 2003, p. 36). Large-bodied species with a long lifespan tend to experience less severe population fluctuations than smaller, short-lived species (Boyd 2003, p. 37). Consequently, a lower MVP is typical for large, long-lived species. The Canadian National Wood Bison Recovery Team uses a MVP of 400 for wood bison (Boyd 2003, p. 38). More recently, the IUCN considered wild plains bison populations to be viable if they were greater than 1,000 animals (IUCN 2008). Freese et al. (2007, p. 180) suggest that in consideration of exotic diseases and climate change, a prudent goal would be retention of at least 95-percent allelic diversity for 200 years, which would require a MVP of 2,000 animals. We are aware of 15 conservation herds with at least 400 wild plains bison, 4 conservation herds with at least 1,000 wild plains bison (Custer State Park in South Dakota, Medano-Zapata Ranch in Colorado, Pink Mountain in British Colombia, and Yellowstone), and 1 conservation herd with more than 2,000 wild plains bison (Yellowstone). Selectively moving animals in smaller herds from one herd to another as is still frequently done in conservation herds, and can counter the effects of genetic drift and maintain viability (Halbert 2003, p. 153; Jones and Roffe 2008, p. 8). The USDOI has a priority of increasing their existing herds to at least 1,000 animals, or establishing new herds that can reach that size (USDOI 2008, p. 2).

All wild plains bison herds have experienced some degree of management, ranging from initial establishment of the herd to more intensive management activities such as roundups, culling, protection from predators, pasture rotation, supplemental feeding, and vaccination. We recognize that maximizing the wildness of the plains bison is important for the maintenance of genetic diversity, but also believe that continued judicious management is necessary for long-term survival in the modern world. For example, in an effort to minimize capture and handling of wild plains bison in Yellowstone, the NPS is considering the use of air rifles to deliver brucellosis vaccines remotely (NPS 2010, p. iii).

Populations of wild plains bison that have been tested display a moderately high level of overall genetic diversity. Selective movement of animals between herds, as currently practiced, can help maintain that genetic diversity. We do not believe that there is substantial information indicating that listing may be warranted due to a loss of genetic diversity.

Introgression was caused by hybridization between plains bison and cattle, followed by breeding of the hybrid offspring to at least one of their respective parental populations (Gates et al. 2010, p. 22). The introgressed or alien DNA replaced sections of the original DNA, thereby affecting the genetic integrity of the wild plains bison (Gates et al. 2010, p. 22). Most genetic studies we are aware of have been conducted on conservation herds (Polziehn et al. 1995, p. 1638; Ward et al. 1999, p. 52; Boyd 2003, p. 68; Halbert 2003, p. 70; Halbert et al. 2005, pp. 2349-2350).

When plains bison were at their lowest numbers in the late 1800s, a few individuals established small captive foundation herds that saved the subspecies from extinction. Each of these herds was, to some extent, used to either experimentally create bison-domestic cattle crosses, or supplemented with plains bison from herds involved in such experiments (Halbert et al. 2005, p. 2344). Controlled breeding of male plains bison to female domestic cattle has been recorded extensively, although the birth rate of first-generation offspring is very low (Halbert et al. 2005, p. 2344), and male offspring are usually sterile (Meagher 1986, p. 6). Behavioral constraints typically prevent domestic bulls from mating with female bison (Boyd 2003, p. 67). Due to the sterility of male offspring and the lack of domestic bulls that successfully breed with female bison, there is no evidence of male-linked or Y-chromosome cattle gene introgression in bison (Boyd 2003, p. 67). However, maternally inherited DNA, known as mitochondrial DNA (mtDNA), and nuclear DNA (contributed by either parent) introgression have been demonstrated (Polziehn et al. 1995, p. 1641; Ward et al. 1999, p. 51; Boyd 2003, p. 67; Halbert 2003, p. 13), which indicates that many plains bison contain some cattle DNA from experimental crosses conducted in the past.

The proportion of cattle DNA that has been measured in introgressed individuals and herds is typically quite low, ranging from 0.56 to 1.8 percent (Polziehn et al. 1995, p. 1642; Halbert et al. 2005, p. 2343). However, estimates based on extrapolation from portions of genomes sampled, to the entire genome, to all animals in a herd should be considered only as approximations (Roffe and Jones 2008, p. 1). The petitioners assert that seven herds have been found free of cattle genes (Bailey and Bailey 2009, p. 20). We are aware that very few herds lack evidence of at least some cattle allele introgression. Based upon the information currently available, the following wild plains bison conservation herds show no evidence of introgression: Elk Island National Park in Alberta, Jackson herd (Grand Teton National Park—National Elk Refuge) in Wyoming, Henry Mountains in Utah, Sullys Hill National Game Preserve in North Dakota, Wind Cave National Park in South Dakota, and Yellowstone (Halbert and Derr 2007, p. 8). One private herd, Castle Rock in New Mexico, also shows no evidence of introgression (Freese et al. 2007, p. 182). The Jackson and Sullys Hill herds have not been adequately sampled to allow for statistical confidence (Halbert and Derr 2007, p. 8), and many other herds have not yet been tested. As techniques improve and more extensive sampling occur, some herds previously without evidence of introgression may be found to contain introgressed alleles.

Some conservation herds known to have low levels of cattle introgression also contain unique or rare plains bison genetic diversity (Halbert 2003, p. 98; Gates et al. 2010, p. 23). To minimize genetic loss and not exacerbate the effects of the historical bottleneck on the wild plains bison, managers feel that this unique genetic background should be conserved, while herds with no evidence of introgression should be maintained in isolation from introgressed populations (Halbert 2003, p. 94). Issues of introgression and unique genetic diversity are both considered in management of wild plains bison.

The presence of cattle DNA in the genetic makeup of wild plains bison appears widespread, but occurs at low levels. Conservation herds are managed according to their genetic background, so as to maintain genetic diversity and introgression-free herds. We expect the frequency of cattle DNA to remain low in conservation herds. Wild plains bison from introgressed herds conform morphologically, behaviorally, and ecologically to the scientific taxonomic description of the native subspecies. Some wild plains bison herds with evidence of cattle introgression also contain valuable genetic diversity that is not found elsewhere and should be conserved. We do not believe that there is substantial information indicating that listing may be warranted due to introgression with cattle genes.

No information on the direct relationship between climate change and wild plains bison was provided by the petitioners or is available in our files. According to the Intergovernmental Panel on Climate Change (IPCC 2007, p. 6), “warming 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. 6). It is very likely that over the past 50 years, cold days, cold nights, and frosts have become less frequent over most land areas, and hot days and hot nights have become more frequent (IPCC 2007, p. 6). It is likely that heat waves have become more frequent over most land areas, and the frequency of heavy precipitation events has increased over most areas (IPCC 2007, p. 6).

Changes in the global climate system during the 21st Century are likely to be larger than those observed during the 20th Century (IPCC 2007, p. 19). For the next 2 decades, a warming of about 0.2 °Celsius (°C) (0.4 °Fahrenheit (°F)) per decade is projected (IPCC 2007, p. 19). Afterward, temperature projections increasingly depend on specific emissions scenarios (IPCC 2007, p. 19). 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. 20). The IPCC (2007, pp. 22, 27) report outlines several scenarios that are virtually certain or very likely to occur in the 21st Century including: (1) Over most land, there will be warmer days and nights, and fewer cold days and nights, along with more frequent hot days and nights; (2) areas affected by drought will increase; and (3) the frequency of warm spells and heat waves over most land areas will likely increase. The IPCC predicts that the resiliency of many ecosystems is likely to be exceeded this century by an unprecedented combination of climate change, associated disturbances (e.g., flooding, drought, wildfire, and insects), and other global drivers. With medium confidence, IPCC predicts that approximately 20 to 30 percent of plant and animal species assessed so far are likely to be at an increased risk of extinction if increases in global average temperature exceed 1.5 to 2.5 °C (3 to 5 °F).

The wild plains bison had a very extensive historical range that extended nearly coast to coast and from central Canada to northern Mexico. Therefore, it would appear that it is adaptable to a wide variety of climatic conditions. We also believe that all four ecotypes described by the petitioners as potential distinct population segments will persist in the face of climate change. Consequently, we do not believe that there is substantial information indicating that listing may be warranted due to climate change.

In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to loss of genetic diversity, introgression with cattle genes, or climate change.

We have carefully examined information from the petition and from our files regarding the status of wild plains bison. We also consulted with Service biologists and managers from NWRs that have wild plains bison. There have been several impacts to the wild plains bison; in particular, market hunting caused a precipitous decline in the mid- to late-1800s. Diligent efforts by a few individuals prevented extinction. However, subsequent attempts to crossbreed plains bison with cattle resulted in low-level, but widespread, presence of cattle DNA. Nevertheless, the wild plains bison appears to have retained much of its genetic diversity. However, the presence of both commercial herds and conservation herds has resulted in some conflicting legal designations. Brucellosis in the Greater Yellowstone Ecosystem requires special management. Despite these stressors, the numbers of plains bison have increased dramatically since the early 1900s, and population trends of wild plains bison in conservation herds appear to be stable to increasing in recent years. The number of conservation herds also continues to increase. In summary, the petition does not present substantial information that wild plains bison as a subspecies may require listing.

The petitioners requested that if we should determine that substantial information was not presented indicating that listing may be warranted, then each major ecotype of the subspecies should be listed as a “significant distinct population segment (DPS).” The petitioners specified four ecotypes (population segments) of wild plains bison: The northern Great Plains, the southern Great Plains, the Rocky Mountains, and the Great Basin-Colorado Plateau.

To interpret and implement the DPS provisions of the Act, the Service and the National Oceanic and Atmospheric Administration published the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act in the Federal Register on February 7, 1996 (61 FR 4722). Under the DPS Policy, three elements are considered in the decision regarding the establishment and classification of a population of a vertebrate species as a possible DPS: (1) The discreteness of a population in relation to the remainder of the species to which it belongs, (2) the significance of the population segment to the species to which it belongs, and (3) the population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification. Both discreteness and significance are required for a species population to meet our criteria for classification as a DPS. If any portion of a species' population is considered a potentially valid DPS, we may list, delist, or reclassify that DPS under the Act. We address these elements with respect to the wild plains bison.

Under the DPS policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.

The petitioners assert that the four proposed wild plains bison ecotypes or population segments are physically separated, and therefore discrete (Bailey and Bailey 2009, p. 11). While nearly all conservation herds are geographically separated, the available information indicates that the “markedly separated” criteria are not satisfied because the frequent interchange between herds that has occurred since the late 1800s has provided a physical connectivity between herds, and has maintained genetic homogeneity.

There is no evidence indicating that landscape features historically separated herds of plains bison. Prior to the population bottleneck in the late 1800s, the species likely experienced a high degree of genetic homogeneity, despite their extensive range (Gates et al. 2010, p. 20). Wild plains bison ranged over large areas, suggesting extensive animal movement and gene flow between populations (Gates et al. 2010, p. 20).

Separation should also be considered in the context of the more recent history of the four wild plains bison ecotypes or population segments. Several researchers have concluded that nearly all plains bison present today in both commercial and conservation herds descend from 76 to 84 individuals from 5 private foundation herds and no more than 30 wild bison in Yellowstone (Halbert 2003, p. 9). The private foundation herds originated from across a large portion of the species' range. Early federally owned herds were established from foundation herds and subsequently augmented with plains bison from multiple herds in disparate locations. For example, the current wild plains bison herd on the National Bison Range was started in 1908 with stock from three different foundation herds in Canada, Texas, and Montana (Halbert and Derr 2007, p. 2). This same herd was augmented in 1939 with plains bison from a private ranch of unknown origin; in 1952 with wild plains bison from Fort Niobrara NWR, Nebraska; in 1953 with wild plains bison from Yellowstone, Wyoming; and in 1984 with wild plains bison from Maxwell Wildlife Refuge, Kansas (Halbert and Derr 2007, p. 2). Similar histories exist for most other Federal herds (Halbert and Derr 2007, p. 2). In contrast, one State-owned herd, the Texas Caprock herd, has been a small, closed population for more than 120 years since its founding with five plains bison from the Goodnight foundation herd (Halbert 2003, p. 95). This herd suffers from lower birth rates and higher death rates than other captive herds (Halbert 2003, p. 95). The careful introduction of unrelated plains bison has been recommended to increase genetic diversity, reduce inbreeding, and increase fitness (Halbert 2003, p. 124).

The strategy for wild plains bison herds in the National Wildlife Refuge System is to manage bison as a metapopulation to maintain the genetic complement and minimize loss of diversity through low levels of carefully planned and monitored translocations between herds (Jones and Roffe 2008, p. 9). Similar translocations occur for other public herds (Halbert and Derr 2007, p. 2). Translocations are often between ecotypes, which further supports management as a metapopulation (Boyd 2003, Appendix 2).

The diverse origins of the early foundation herds, and subsequent translocations that were undertaken (and continue to be undertaken) to establish new herds and to later augment herds, have resulted in population segments that, despite their current geographic separation, are essentially one metapopulation where connectivity is maintained through management practices. Therefore, the four wild plains bison ecotypes or population segments are not markedly separate.

Although wild plains bison herds also occur in Canada, each of the four plains bison ecotypes or population segments proposed by the petitioners occurs within the United States. Therefore, there are no international governmental boundaries to consider.

The historically wide-ranging nature of wild plains bison likely resulted in a high degree of genetic homogeneity for the species. The subsequent management of the wild plains bison has maintained that homogeneity through numerous translocations between various conservation herds. Additionally, there are no international boundaries between the four proposed population segments. Therefore, the discreteness criteria, as applied to the DPS policy, have not been met.

Because the petition does not present substantial information that any of the four wild plains bison ecotypes or population segments is discrete, we did not evaluate whether the information contained in the petition regarding significance was substantial. However, we note that the wild plains bison is a generalist with regard to its habitat requirements, as evidenced by its broad historical range, and none of the ecological settings of the four population segments is unique or unusual. Each of the population segments contains multiple herds managed under different Federal, State, municipal, or private regimes, and the complete loss of any population segment is very unlikely. No population segment represents the only surviving natural occurrence of the taxon. Lastly, due to multiple, diverse origins and subsequent translocations, no population segment is genetically, behaviorally, or ecologically unique.

We recognize that this conclusion differs to some extent from an earlier decision. In a previous negative 90-day finding published on August 15, 2007 (72 FR 45717), we determined that the Yellowstone plains bison herd may meet the criteria of discreteness and significance as defined by our policy on DPS. However, this finding and the previous 90-day finding differ in scope. The August 15, 2007, finding only addressed plains bison in the Yellowstone herd. The current finding addresses wild plains bison in all conservation herds.

The 2007 finding concluded that the Yellowstone herd may be discrete from other plains bison, because it was considered the only herd that has “remained in a wild state since prehistoric times” and because of physical distance and barriers. The best available information now indicates that the basis for our 2007 DPS determination was erroneous. We still use the term “wild plains bison” to describe the Yellowstone herd because they are managed as a conservation herd, rather than as a commercial herd. However, we no longer consider the Yellowstone herd to have remained in more of a “wild” state than any other conservation herd. Specifically, these wild plains bison are no longer thought to have remained in an unaltered condition from prehistoric times, as implied in the previous determination. In 1902, no more than 30 wild plains bison remained in Yellowstone (Halbert 2003, p. 24). In the same year, 18 female plains bison from the captive Pablo-Allard herd in Montana and 3 bulls from the captive Goodnight herd in Texas were purchased to supplement the Yellowstone herd (Halbert 2003, pp. 24-25). Additionally, intensive management (supplemental feeding, roundups, and selective culling) of the Yellowstone herd occurred from the 1920s through the late 1960s (Gogan et al. 2005, p. 1719). Wild plains bison from Yellowstone also have been used to start or augment many later conservation herds (Halbert and Derr 2007, p. 2). Despite geographic separation, the Yellowstone herd is essentially part of one metapopulation and is not markedly separate from other herds.

On the basis of the preceding discussion, we believe that the petition has not provided substantial information to conclude that each of the four population segments may be discrete. Therefore, we did not evaluate significance or conservation status of the four population segments within the meaning of the DPS Policy. In conclusion, we do not believe that any of the population segments may constitute a valid DPS.

However, even if we had concluded that the four population segments may be discrete and significant, the petition does not present substantial information that any of the stressors described under the above five factor analysis are concentrated within any one DPS to indicate that any of the DPSs would be more likely to be threatened or endangered than the species at large. Thus, there is no information indicating stressors rise to the level of a threat for any population segment.

In summary, the petition does not present substantial information that wild plains bison may require listing either as a subspecies or a DPS. The conclusion that impacts from the various factors discussed above may constitute a threat is not supported by the available information regarding distribution, abundance, and population trends of wild plains bison. Wild plains bison are distributed in parks, preserves, other public lands, and private lands throughout and external to their historical range. The current population of wild plains bison is estimated to be 20,500 animals in 62 conservation herds. Recent population trends appear stable to slightly increasing in conservation herds (as noted by the petitioners).

On the basis of our determination under section 4(b)(3)(A) of the Act, we conclude that the petition does not present substantial scientific or commercial information to indicate that listing the wild plains bison, or any of four proposed DPSs, under the Act as threatened or endangered may be warranted at this time. Although we will not review the status of the species at this time, we encourage interested parties to continue to gather data that will assist with conservation of the wild plains bison. If you wish to provide information regarding the wild plains bison, you may submit your information or materials to the Wyoming Field Supervisor ( see ADDRESSES ) at any time.

A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Wyoming Field Office ( see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this notice are staff members of the Mountain-Prairie Regional Office and the Wyoming Field Office ( see ADDRESSES ).

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

Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq. ) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register .

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.

On January 12, 2010, we received a petition, dated January 6, 2010, from WildEarth Guardians, requesting that the unsilvered fritillary butterfly be listed as threatened or endangered and critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required by 50 CFR 424.14(a). In a February 10, 2010, letter to the petitioner, we acknowledged receipt of the petition and stated that we had secured the funding to conduct the initial finding as to whether the petition contains substantial information indicating that the action may be warranted. We also stated that we determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. This finding addresses the petition.

On January 6, 1992, the Service received a petition from Drs. Dennis Murphy and Alan Launer of the Stanford University Center for Conservation Biology to list Speyeria adiaste adiaste, one of the three subspecies of unsilvered fritillary, as an endangered or threatened species. In our November 22, 1994, 90-day petition finding (59 FR 28741), we determined that, although the S. adiaste adiaste may be declining, existing information was not available to estimate the extent or rate of changes in habitat or population levels. We stated that further surveys were needed to adequately assess its distribution and population status, and beyond the information described above, the petitioner presented little else on the status of the animal. Therefore, the Service determined that the petition did not present substantial information that the requested action may be warranted.

The unsilvered fritillary is a medium-sized, brush-footed butterfly limited to the central coast region of California (WildEarth Guardians 2010, p. 1). This butterfly has a 2-2.38-inch (5-6.1-centimeter (cm)) wingspan. The upper side of adult males is pale reddish-tan to bright red and the undersides are pale yellow to gray; females are larger and paler than males. The unsilvered fritillary has small, scattered, dark markings and a bold postmedian line. This species also has unsilvered hindwing spots that slightly contrast with background coloring, unlike the silvered markings of most Speyeria species (Butterflies and Moths of North America (BMNA) 2009, p. 1). Adults lay single eggs on fallen leaves and twigs near violets ( Viola spp.). Caterpillars hibernate without feeding, but feed on violet leaves when they emerge in spring (NatureServe 2009, not paginated; BMNA 2009, p. 1). Adults have been observed feeding on the flowers of native and nonnative thistles (family Asteraceae ) and California buckeye ( Aesculus californica ) (NatureServe 2009, not paginated). The unsilvered fritillary breeds once per year, with its adult butterfly stage occurring in June through July (flight period) (BMNA 2009, p. 1).

The unsilvered fritillary inhabits openings in conifer and redwood forests, as well as oak woodlands, chaparral, and grassy slopes (BMNA 2009, p. 2). Brittnacher et al. (1978, p. 200) considered it a xeric (adapted to an extremely dry habitat) Speyeria species that occurred in summer-dry locations.

Violets are the only known host plants for Speyeria, including the unsilvered fritillary, and the distribution of these plants limits the extent of available habitat the species can occupy (Brittnacher 1978, p. 199). Mattoon et al. (1971) (in Brittnacher et al. 1978, p. 199) found that all the North American violets they tested can adequately support larval growth, although some European ornamentals, such as sweet violet ( Viola odorata ), are toxic to most Speyeria species.

The petition states that there are 16 species in the Speyeria genus (WildEarth Guardians 2010, p. 4). Brittnacher et al. (1978, p. 199) state that there are at least 14 closely related Speyeria species, 10 of which occur in California. In the draft recovery plan for the Behren's silverspot ( S. zerene behrensii ), the Service (2003, p. 3) stated that the genus Speyeria is a member of a complex group of 10 species, having a polytypic ( i.e., having many forms) population structure, with over 100 geographic subspecies. There are three recognized subspecies of the unsilvered fritillary, Speyeria adiaste adiaste ( adiaste subspecies), S. a. clemencei ( clemencei subspecies), and S. a. atossa ( atossa subspecies) (NatureServe 2009, not paginated); however, as discussed below, the atossa subspecies is considered extinct.

The historic range of the unsilvered fritillary covered much of the central and southern coastal region of California, extending from San Mateo County in the north to Los Angeles and Kern Counties in the south (BMNA 2009, p. 2). However, the current range is much smaller because the atossa subspecies is considered extinct (BMNA 2009, p. 2). Historically, the atossa subspecies was widely distributed in the Tehachapi Mountains, Tejon Mountains, and Mount Pinos region of Los Angeles and Kern Counties (Bruyea 2003, not paginated), living in open grasslands where violets, such as the pine violet ( Viola purpurea ), were abundant (Comstock 1927 in Hammond and McCorkle 1983, p. 220). The last known observations of the atossa subspecies occurred in 1959 just south of the town of Tehachapi and near Mount Pinos (Emmel and Emmel 1973 in Bruyea 2003, not paginated).

The two extant unsilvered fritillary subspecies occur in the central coast region of California from Santa Cruz County in the north to San Luis Obispo County in the south. The petition states that the adiaste subspecies is limited to the higher elevations of the Santa Cruz Mountains in San Mateo, Santa Cruz, and Santa Clara Counties (WildEarth Guardians 2010, p. 5). The clemencei subspecies has a more extensive range (BMNA 2009, p. 2), and the petition states that it occurs in the Santa Lucia Mountains in Monterey and San Luis Obispo Counties (WildEarth Guardians 2010, p. 5). The petition states that the unsilvered fritillary is distributed spottily within this range (WildEarth Guardians 2010, p. 6); however, the petition does not provide any other data on its abundance or distribution.

The California Natural Diversity Database (CNDDB) (2010, not paginated) has only two records for the S. a. adiaste. One location is in Big Basin Redwoods State Park in Santa Cruz County, which is specifically discussed in the petition. The second location is on private land on the border between Santa Clara and Santa Cruz Counties. There are no records of S. a. clemencei in the CNDDB.

NatureServe is cited frequently throughout the petition to support the assertion that the unsilvered fritillary should be listed under the Act. NatureServe is a nonprofit conservation organization that collects and manages data about the status and distribution of species and ecosystems of conservation concern and makes that information available to guide conservation, land-use planning, and natural resource management (NatureServe Web site 2009). As part of this service, NatureServe assesses and ranks the conservation status of species on a scale ranging from a “conservation status rank” of critically imperiled (1) to demonstrably secure (5). NatureServe ranks the unsilvered fritillary as G1G2, rounded to G1, “critically imperiled,” meaning the species is at high risk of extinction due to extreme rarity or to a limited range. However, NatureServe states that more information on abundance and number of occurrences and metapopulation dynamics of the species would be necessary to further refine its rank. NatureServe indicates that the long-term trend for the species has been a large-to-substantial decline (50 to 90 percent). However, NatureServe does not indicate whether the range of the species has declined or the abundance of the species has declined or both, although it does note that there is not enough information to determine the abundance of the species. The loss of the atossa subspecies represents a large decline in the range of the species, but does not necessarily reflect the status of the adiaste or clemencei subspecies. Although NatureServe states that there is not enough information to determine the number of occurrences of the species, it estimates the number of occurrences at 1-20. NatureServe also ranks the three subspecies individually: S. a. adiaste is ranked as T1, critically imperiled in California; S. a. clemencei is ranked as T1T2, similar to the full species' rank of G1G2; and S. a. atossa is ranked as TX because it is presumed extinct. NatureServe (2009) states that populations of the adiaste subspecies “seem to have declined,” but does not provide any information to support this observation. It should also be noted that NatureServe indicates on its Web site that conservation status ranks are neither a recommendation by the organization, nor an indication that a species requires legal status to assure its survival (NatureServe 2008, not paginated) and, in our view, should not be the sole basis for any decisions.

Furthermore, the CNDDB includes S. a. adiaste on its species-at-risk list, but the other two subspecies are not included. Similarly, the California Wildlife Action Plan includes S. a. adiaste as a species at risk in the central coast region based on the CNDDB classification.

Although the petition did not provide any information on the results of any surveys that may have been conducted to determine the status of the atossa subspecies, the information available at this time indicates that the atossa subspecies is considered extinct. We also agree with the petitioner and other organizations, including NatureServe, that the range of the remaining extant subspecies of the unsilvered fritillary is limited to the central coast of California. However, the range of the species as described in both the petition and by NatureServe includes at least the mountainous portions of five counties. Although only a portion of this area is suitable habitat for the species, the petition did not provide information on either the distribution of the species or on the extent or distribution of its habitat; information on either or both could be used to refine the range of the species beyond what is described in the petition. The petition also did not present any information that would indicate that the ranges of the remaining two subspecies have been reduced. Nor did the petition present any information on either the number of populations or overall abundance of the two subspecies, or any changes in these. The classification of the unsilvered fritillary as being critically imperiled by NatureServe is apparently based on the loss of the atossa subspecies and the limited range of the two extant subspecies, rather than information on their past or present distribution and abundance. Therefore, there is no information that shows that the range of the two remaining subspecies has been reduced or that the number of populations or abundance of either of them has declined or is declining.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

In making this 90-day finding, we evaluated whether information regarding threats to the unsilvered fritillary, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.

It is the overall position of the petition that, of the three subspecies of the unsilvered fritillary, Speyeria adiaste atossa is considered extinct, S. a. adiaste is limited in range and declining, and S. a. clemencei has a more extensive range but faces multiple threats, and, therefore, the species in its entirety faces extinction or endangerment.

The petition states that the unsilvered fritillary has vanished from much of its range and asserts that this is due to human activities, including habitat loss and degradation due to burgeoning human populations, with resultant urban and suburban sprawl; increasing agriculture; extensive livestock grazing; off-road vehicle use; and other adverse land uses. The petition also asserts that climate change has taken and will take its toll through altered fire regimes, more severe and frequent droughts, and shifts in native plant distribution (WildEarth Guardians 2010, p. 12). The petition states that the Service should consider whether these threats intersect and act synergistically, thereby increasing the likelihood of extinction or endangerment of the unsilvered fritillary in the foreseeable future (WildEarth Guardians 2010, p. 16).

Additionally, the petition states that the Service should consider how the suite of threats identified for four Federally listed Speyeria, the Behren's silverspot ( Speyeria z. behrensii ), the Oregon silverspot ( S. z. hippolyta ), the Myrtle's silverspot ( S. z. myrtleae ), and the Callippe silverspot ( S. callippe callippe ), might likewise threaten the unsilvered fritillary (WildEarth Guardians 2010, p. 11).

The endangered Behren's silverspot occurs at a single location near Point Arena, Mendocino County, California (Service 2003, p. iii). Threats identified in the recovery plan for this taxon are: Invasion by nonnative species, natural succession, fire suppression, residential development, and overcollection (Service 2003, pp. 12-16).

The threatened Oregon silverspot occurs at disjunct sites near the Pacific coast from Del Norte County, California, north to Long Beach Peninsula, Washington. Threats identified in the recovery plan for this taxon are: Invasion by nonnative species, fire suppression, land development, off-road vehicles, livestock grazing, erosion, roadkill, insecticides, and overcollection (Service 2001, pp. 18-20).

When listed, the endangered Myrtle's silverspot occurred in four areas in western Marin and southwestern Sonoma Counties, California, and the distribution and range have not significantly changed since listing in 1992 (Service 2009, p. 5). Threats identified in the recovery plan for this taxon are: Invasion by nonnative plants, loss of habitat from commercial and residential development, recreation, livestock grazing, agriculture, and over-collection (Service 1998, pp. 59-60).

The endangered Callippe silverspot occurs at San Bruno Mountain in San Mateo County and at Cordelia Hills in Sonoma County, California (Service 2009, p. 5). Threats identified in the listing rule for this taxon are: Habitat degradation due to human activities, off-road vehicles, invasion by nonnative plants, livestock grazing, and over-collection (December 5, 1997, 62 FR 64306, pp. 64311-64312).

The five factors discussed below are pertinent only in cases where the organism being proposed for listing may be a listable entity as defined by section 3(16) of the Act and is extant in the wild. The petition and its supporting information and information in our files indicate that the atossa subspecies is considered extinct. Because the atossa subspecies is considered extinct, the five factors are not analyzed for atossa. Therefore, the five factors are analyzed for the species of the unsilvered fritillary as a whole and for each of the two extant subspecies ( adiaste and clemencei ).

The petition asserts that development, fire suppression, widespread fires, agriculture, overgrazing, and exotic vegetation are causing the loss or degradation of the unsilvered fritillary's habitat (WildEarth Guardians 2010, p. 8). Moreover, the petition claims that the extirpations and decline of the unsilvered fritillary indicate severe degradation of its habitat, and these activities are pushing this species' Central coast grassland and woodland ecosystems toward collapse (WildEarth Guardians 2010, pp. 7-8). The petition states that NatureServe (2009, not paginated) estimates that the unsilvered fritillary has undergone a large-to-substantial decline, on the order of 50 to 90 percent (WildEarth Guardians 2010, p. 7).

The petition also lists off-road vehicles as a threat to the unsilvered fritillary (WildEarth Guardians 2010, p. 9); however, it does not include any other information on either the operation of off-road vehicles in relation to unsilvered butterfly populations or the habitat of the species.

As described in the petition, the various species of Speyeria butterflies are sensitive to human disturbance, and four species of Speyeria butterflies are listed as either threatened or endangered (WildEarth Guardians 2010, p. 11). Hammond and McCorkle (1983, p. 218) analyzed the general problem of declining Speyeria butterfly populations due to human-induced environmental disturbances and concluded that the fritillary butterflies of the genus Speyeria and their larval food plants, violets, are among the most sensitive organisms in native ecosystems, and are among the first to be exterminated as a result of widespread human disturbance.

Human disturbance has been particularly destructive to native ecological communities along the West Coast, and many forms of Speyeria have become extinct or are threatened with extinction in this region (Hammond and McCorkle 1983, p. 220). One example of this is the atossa subspecies, which, as mentioned earlier, is considered extinct. The atossa subspecies was once widely distributed and extremely abundant in the Sierra Madre, Tejon, and Tehachapi Mountains of southern California, where it occurred in open grasslands where violets, such as the pine violet ( Viola purpurea ), were abundant (Comstock 1927, in Hammond and McCorkle 1983, p. 220). According to Emmel and Emmel (1973, in Hammond and McCorkle 1983, p. 220), this subspecies is probably extinct today, with the last known specimen collected in 1959. Although the actual causes of the atossa subspecies' decline are still not clear (University of California Berkeley 2009, p. 1), it is thought that overgrazing by livestock, combined with drought, so greatly reduced the larval food plant that the butterfly could no longer survive (Orsak 1974, in Hammond and McCorkle 1983, p. 220). Wildfire suppression practices may also have contributed to the spread of nonnative vegetation in the area, which tends to outcompete native low-growing annuals, including potential unsilvered fritillary host plants (John Emmel, pers. comm. in Bruyea 2003, not paginated).

The petition states that population and urban growth and development are important stressors to wildlife in the central coast region of California, including the unsilvered fritillary, and that suburban development has reduced both the various Speyeria species of butterflies and violets, their primary food source (WildEarth Guardians 2010, p. 8). As stated in the petition, the human population in this region has increased extensively and is likely continuing to grow (WildEarth Guardians 2010, p. 8). According to the California Wildlife Action Plan (Bunn et al. 2007, p. 200), population pressures have increased in recent years, and growth and development have expanded from urban centers to adjacent farmlands and rural areas both on the coast and in the interior portions of the central coast. As pointed out in the petition, these developed areas and infrastructure corridors not only result in direct loss of habitat, but also fragment the natural landscape and degrade the quality of adjacent habitat (WildEarth Guardians 2010, p. 9). Fragmentation hinders ecological processes that require landscape connectivity, such as natural fire regimes, movement of wide-ranging species, and genetic exchange, and it makes remaining natural lands more vulnerable to pollution and invasion by exotic plants and animals (Soulé and Terborgh 1999, in Bunn et al. 2007, p. 208).

As noted in the petition, Speyeria are known to be sensitive to development, and development is considered to be a threat to the habitat of the four listed Speyeria butterflies. The primary threat to the Callippe (62 FR 64306), Behren's (62 FR 64306), Myrtle's (June 22, 1992, 57 FR 27848), and Oregon silverspot (July 2, 1980, 45 FR 44935) butterflies is the loss and degradation of habitat from human activities.

The petition asserts that urban and rural development is occurring within the range of the unsilvered fritillary and is negatively affecting it (WildEarth Guardians 2010, p. 8). We agree that the unsilvered fritillary is likely sensitive to development that removes or degrades its habitat; however, the petition only makes general assertions that development associated with population increases in the central coast is affecting the habitat of the unsilvered fritillary. The petition does not provide any information on the location of populations of the unsilvered fritillary or either of the two extant subspecies, except for the one occurrence of a protected population in Big Basin Redwoods State Park (WildEarth Guardians 2010, p. 11). The petition also does not provide any information regarding the amount of occupied habitat lost or degraded, nor does the petition identify areas within the unsilvered fritillary's range that are currently being developed or have plans for future development. As noted above in the Species Information section, only two records of the unsilvered fritillary are in the CNDDB, one of which is in Big Basin Redwoods State Park, where development, agriculture, and off-road vehicles are not permitted. The petition references NatureServe in indicating that “few to several” occupied locations are protected, but it does not include any further information, nor does the petition include any land ownership information, beyond the fact that one of the locations is in Big Basin Redwoods State Park (WildEarth Guardians 2010, p. 11). We have no information in our files regarding specific locations of unsilvered fritillary butterfly populations, suitable habitat, or potential development impacts to the habitat for the species or subspecies. However, based on maps in our files, there are six State parks (Butano, Portola, Castle Rock, Henry Cowell Redwoods, Forest of Nisene Marks, and Wilder Ranch State Park), the extensive San Francisco State Fish and Game Refuge, and several County parks ( e.g., San Pedro, Mt. Madonna, Uvas Canyon County Park) in the range of the species (Santa Cruz Mountains) that are not mentioned in the petition. Also, almost half of the range of the clemencei subspecies as identified in the petition (WildEarth Guardians 2010, p. 5) is public land, including the Los Padres National Forest, Ventana Wilderness Area, Hastings Natural History Reservation, and several State parks ( e.g., Pfeiffer Big Sur, Julia Pfeiffer Burns). Although we do not have any information as to the presence of populations or suitable habitat in these areas, they are all within the range of the fritillary and are protected from many types of impacts including development, agriculture, and, at least in the case of the Ventana Wilderness Area and State parks, off-road vehicles (Wilderness Act of 1964 (16 U.S.C. 1131 et seq. ); http://www.parks.ca.gov/ ). Therefore, we have determined that the information provided in the petition and in our files concerning the effect of development on the unsilvered fritillary or either of its two subspecies does not present substantial information indicating that the petitioned action may be warranted.

The petition asserts that the unsilvered fritillary is a poor survivor of fires, but that the species also depends on fire to protect its habitat from brush and tree encroachment as well as to burn off dead thatch that can crowd out violets (WildEarth Guardians 2010, p. 8, citing Hammond and McCorkle 1983, p. 222; NatureServe 2009, not paginated). Wildfire suppression may also facilitate the spread of exotic vegetation (WildEarth Guardians 2010, p. 9, citing Bruyea 2003, not paginated). The petition states that the Service should consider how an altered fire regime may be a threat to this species' habitat, particularly given that the clemencei subspecies occurs in the fire-prone Santa Lucia range (WildEarth Guardians 2010, p. 8, citing NatureServe 2009, not paginated).

Periodic fires can be an important factor in maintaining the grassland and coastal prairie habitat of the Callippe and Behren's silverspot butterflies, because, without fire, succession will eliminate the food plants of the larvae of the two butterflies (Orsak 1980 and Hammond and McCorkle 1984 in 62 FR 64306, p. 64315). Hammond and McCorkle (1983, p. 222) pointed out that without fire to maintain the grasslands against brush and tree invasion along the Oregon and Washington coasts, most of the coastal grasslands gradually disappeared to salal and salmonberry brushland or Sitka spruce forest, and even without brush and tree invasion, the native grasslands experience a second ecological problem in the absence of fire. The dead grass from the previous year's growth does not decay quickly in the coastal environment and gradually accumulates to form a thick layer of thatch that smothers and crowds out the violets and other wildflowers that are important food sources for butterflies (Hammond and McCorkle 1983, p. 222). The reduction of historic disturbance regimes has probably accelerated expansion of several nonnative species which threaten Oregon silverspot populations, in addition to encouraging native shrub and tree growth. The spread of nonnative plants has reduced, degraded, or eliminated habitat for the Oregon silverspot at many sites (Service 2001, p. 16). The overgrowth of invasive plants remains one of the most serious present-day threats to the Myrtle's silverspot butterfly. It has been recognized as a threat to other listed butterflies as well (57 FR 27848; Service 1998; Adams 2004; Ehrlich and Hanski 2004; Severns 2007, in Service 2009, p. 15).

While the overgrowth and succession of the four Speyeria butterfly habitats may be ameliorated by periodic disturbance from fires that clear areas for Speyeria food plants, the effects on Speyeria larvae may be more severe. Although the larvae of these butterflies may survive fires that move rapidly through grassland habitats, hotter and slow-moving brush and woodland fires may kill them (Orsak 1980 and Hammond and McCorkle 1984 in 62 FR 64306, p. 64315). Under windy conditions, fast-moving grassland fires burn in patches that leave islands of unburned habitat where any butterflies present are not harmed.

The petition asserts that the unsilvered fritillary can be negatively or positively affected by both presence of fire and absence of fire (WildEarth Guardians 2010, p. 8). However, the petition does not provide any information on past or more-recent fire activity within the range of the unsilvered fritillary and does not provide any information on the location of populations of the unsilvered fritillary, including either of its two subspecies that may or could potentially be affected by fire. Similarly, the petition does not provide any information on past, present, or planned fire suppression activities within the range of the species. Moreover, the petition (WildEarth Guardians 2010, p. 8) and NatureServe (2009) state that the Santa Lucia Mountains are fire prone, but do not provide information regarding the past or more-recent fire history in the Santa Lucia Mountains that would indicate this area is more fire-prone or whether the clemencei subspecies' habitat is more prone to wildfire than other areas of California. We have no information for either the specific locations of the unsilvered fritillary populations that may be affected by fire, or the areas within the range of the species that have altered fire regimes or have high fire danger. Therefore, we have determined that the information provided concerning wildfire and fire suppression for the unsilvered fritillary or either of its extant subspecies does not present substantial information indicating that the petitioned action may be warranted.

The petition lists agriculture and livestock grazing as threats to the unsilvered fritillary and asserts that livestock eat and trample violet food plants and can cause proliferation of noxious weeds that displace violets (WildEarth Guardians 2010, p. 9). The petition asserts that approximately 11 percent of the central coast region of California is used for agriculture and livestock grazing, which can lead to habitat fragmentation, erosion, sedimentation, and degradation from herbicides and insecticides (WildEarth Guardians 2010, p. 9). The petition states that intensive agriculture is increasing in the region; vineyard acreage increased approximately 36 percent between 1998 and 2001 (WildEarth Guardians 2010, p. 9, citing Bunn et al. 2007, p. 211). The petition (WildEarth Guardians 2010, p. 8) notes that overgrazing is suspected to have played a role in the extinction of the atossa subspecies (NatureServe 2009, not paginated).

The petition also states that Speyeria butterflies are known to be susceptible to insecticides (WildEarth Guardians 2010, p. 16, citing NatureServe 2009, not paginated), and given the increase in agriculture within the unsilvered fritillary's range, insecticide use is likely to be an escalating threat to this species (WildEarth Guardians 2010, p. 16).

The effect of grazing can be either beneficial or deleterious to native plants, depending on the grazing regime and the ecology of the plant species (DeVries and Raemakers 2001; Vogel et al. 2007, in Service 2009, p. 14). For the Callippe, Behren's, Myrtle's, and Oregon silverspots, livestock grazing was determined to be a threat if it occurred at levels such that the vegetation was overgrazed and the food plants and nectar sources of these butterflies were eliminated or reduced in abundance. However, light-to-moderate grazing can result in reduction of invasive woody plants and maintain early successional grassland habitats that are beneficial for butterfly host plants (Service 2001, p. 16; Service 2009, p. 14). In fact, the Myrtle's silverspot has coexisted with cattle grazing for over 100 years at Point Reyes National Seashore. Adams (2004, in Service 2009, p. 14) found that the moderate grazing regime at Point Reyes National Seashore did not negatively affect the density or diversity of nectar plants, and butterflies were found more frequently in the areas that were grazed. Inadvertent trampling of the Myrtle's silverspot host plants by grazing cattle may also be considered a relatively minor threat (Service 2009, p. 14). Other studies have shown that optimal grazing increases the density of native plants, which may support butterfly populations (Heitschmidt and Stuth 1991 in Service 2009, p. 14).

The petition asserts that because 11 percent of the central coast region is used for agriculture and grazing, and because intensive agriculture ( e.g., vineyards) is increasing in the region, the unsilvered fritillary is and will become even more negatively affected by these land uses (WildEarth Guardians 2010, p. 9). While conversion of suitable habitat containing Viola spp. host plants to intensive agriculture would most likely eliminate the unsilvered fritillary's habitat, the petition does not provide any information, nor do we have any information in our files, regarding the extent or intensity of existing agriculture and grazing land use or any planned land-use conversion to vineyards or other types of agriculture or grazing that would occur within the unsilvered fritillary's range. Also, although vineyard acreage has increased along the central coast, as pointed out in the petition (WildEarth Guardians 2010, p. 9), much of the increase has been south of the area where the unsilvered fritillary is currently believed to occur, in the Santa Cruz Mountains and the Santa Lucia Mountains. Vineyard acreage has increased in the area around Paso Robles in San Luis Obispo County and Santa Barbara County (Bunn et al. 2007, p. 211). The petition does not provide any information, nor do we have any information in our files, on the location of populations of the unsilvered fritillary that may be or could potentially be affected by agriculture or grazing, and, thus, we do not have information indicating that agriculture and grazing practices are negatively affecting, or are likely to negatively affect, the unsilvered fritillary. We have determined that the information presented in the petition and available in our files concerning potential habitat modification threats of agriculture and grazing to the habitat for the unsilvered fritillary or either of its extant subspecies does not present substantial information indicating that the petitioned action may be warranted.

Silverspot butterfly larvae are extremely sensitive to insecticides, and even the accumulation of runoff in the soil after spraying has proven lethal to the larvae of members of the genus Speyeria (Mattoon et al. 1971, in 62 FR 64306, p. 64314). In listing the Callippe and Behren's silverspot butterflies, the Service stated that the use of insecticides could threaten these butterflies if use occurred in proximity to occupied habitat (62 FR 64306, p. 64314). This petition, however, does not provide information regarding the use of insecticides within the unsilvered fritillary's range and simply asserts that insecticide use would increase as agriculture within the region increases. The petition also does not provide any information on the location of populations of the unsilvered fritillary that may or could potentially be affected by insecticides. The Service is not aware of plans to apply insecticides in or near the habitat occupied by the unsilvered fritillary, nor do we have any information in our files regarding areas of insecticide application relative to unsilvered fritillary habitat. Therefore, we have determined that the information presented in the petition and in our files concerning the potential threat of insecticides to the unsilvered fritillary or either of its extant subspecies does not present substantial information indicating that the petitioned action may be warranted.

The petition states that exotic vegetation may have played a role in the extinction of the atossa subspecies and asserts that exotic vegetation could likewise threaten the extant subspecies of the unsilvered fritillary and the species as a whole (WildEarth Guardians 2010, p. 9). Citing Bruyea (2003, not paginated), the petition points to wildfire suppression as having facilitated the spread of exotic vegetation, which outcompeted native annuals, such as violets, and, in combination with other human disturbances, led to the extinction of the atossa subspecies (WildEarth Guardians 2010, p. 9).

The petition points out that in the listing rule for the Behren's and Callippe silverspot butterflies (62 FR 64306, pp. 64314-64315), the Service noted, “The invasion of California's native grassland and coastal prairie by alien plants has adversely affected native flora and fauna. In the absence of control and eradication programs, invasive alien plants may eliminate the remaining native plants, including the host plants of Behren's and Callippe silverspot butterflies. Adequate levels of Viola spp. host plants are especially critical for the long-term survival of populations of these butterflies (S. Mattoon, in litt., August 4, 1989, and November 22, 1992).” The petition states that this analysis likewise applies to the unsilvered fritillary (WildEarth Guardians 2010, p. 9).

We recognize that nonnative vegetation can reduce and degrade habitat for Speyeria butterflies ( e.g., Service 2001, p. 16; Service 2009, p. 15), and that nonnative vegetation has been recognized as an indirect threat to other listed butterflies as well (57 FR 27848; Service 1998; Adams 2004; Ehrlich and Hanski 2004; Severns 2007 in Service 2009, p. 15). In the absence of control and eradication programs, invasive alien plants may eliminate the remaining native plants, including the host plants of Behren's and Callippe silverspot butterflies. The petition generalized that because other Speyeria butterflies are negatively impacted by nonnative vegetation, the unsilvered fritillary is as well (WildEarth Guardians 2010, p. 9). However, the petition does not include any information on where nonnative vegetation is degrading the unsilvered fritillary's habitat or the location of populations of the unsilvered fritillary that may be or could potentially be affected by nonnative plants. In addition, we have no information in our files regarding negative impacts to the unsilvered fritillary due to nonnative vegetation. Therefore, we have determined that the information presented in the petition and in our files concerning the potential threat of nonnative plants to the habitat of the unsilvered fritillary or either of its extant subspecies does not present substantial information indicating that the petitioned action may be warranted.

The petition states that drought is considered a threat to the unsilvered fritillary (WildEarth Guardians 2010, p. 14, citing NatureServe 2009, not paginated). Drought has been hypothesized, but not definitively proven, to be a factor in the extinction of the atossa subspecies, as well as being a threat to the clemencei subspecies (WildEarth Guardians 2010, p. 14, citing Davenport 2004, p. 16; NatureServe 2009, not paginated). The petition also asserts that climate change will result in more frequent and longer droughts (WildEarth Guardians 2010, p. 14).

The petition does not provide any information, nor do we have information in our files, to indicate that drought has or will negatively affect the habitat or the number and distribution of populations or the population sizes of the unsilvered fritillary. The petition cites sources that state generally that drought has been a severe problem in recent years (WildEarth Guardians 2010, p. 14, citing Davenport 2004, p. 16), but does not provide information specifically related to the effects of drought on the unsilvered fritillary. The cause of the extinction of the atossa subspecies is unclear, but it has been attributed to many different factors, including drought (Howe 1975, in Bruyea 2003, not paginated; Orzak 1974, in Hammond and McCorkle 1983, p. 220), overgrazing (Orzak 1974, in Hammond and McCorkle 1983, p. 220), disease (University of California Berkeley 2009, p. 1), invasion of nonnative species (Howe 1975, in Bruyea 2003, not paginated), and wildfire suppression (John Emmel, pers. comm., in Bruyea 2003, not paginated). Periodic droughts have been, and likely will continue to be, a normal part of the climate of California, and wildlife, including the unsilvered fritillary, have adapted to periodic droughts. Therefore, we have determined that the information presented in the petition and in our files concerning the potential threat of drought to the unsilvered fritillary or either of its extant subspecies does not present substantial information indicating that the petitioned action may be warranted.

The petition asserts that climate change is having, and will continue to have, a multitude of effects on the unsilvered fritillary and its habitat, including more severe, longer, and more frequent droughts; increased catastrophic wildfire and alteration of natural fire regimes due to hotter conditions; and potential shifts in ranges of this species or the violet species on which it depends (WildEarth Guardians 2010, p. 12). The petition notes that recent warming in the southwestern United States is among the most rapid in the nation, significantly more rapid than the global average (WildEarth Guardians 2010, p. 12, citing Karl et al. 2009, pp. 129-132). Increasing temperature, drought, wildfire, and invasive species will accelerate transformation of the landscape; two-thirds of the more than 5,500 native plant species in California are projected to experience range reductions of up to 80 percent before the end of this century under projected warming (WildEarth Guardians 2010, p. 13, citing Karl et al. 2009, p. 132). The petition claims that such a shift in native ecosystems could adversely affect the unsilvered fritillary, given its narrow distribution (WildEarth Guardians 2010, p. 13).

The petition cites a recent United States Forest Service report regarding the intersection of climate and fire regimes (WildEarth Guardians 2010, p. 14, citing Westerling et al. 2006, in Keeley et al. 2009, p. 20). The report states that recent studies show correlations among warming temperatures, earlier springs, and increased numbers of large forest fires in some parts of the western United States. Anticipated warming trends as a consequence of greenhouse gas accumulation may lead to further increases in the numbers of large fires and total area burned in some regions (Brown et al. 2004; Flannigan et al. 2005; McKenzie et al. 2004, in Keeley et al. 2009, p. 20). Allen and Breshears (1998, in Keeley et al. 2009, p. 20) also predict that global climate change will produce large changes in vegetation distributions at unprecedented rates, particularly in semiarid, fire-prone ecosystems. These anticipated changes in fuel distribution could reduce fire activity in some regions and lead to unanticipated impacts on future fire regimes (Keeley et al. 2009, p. 20).

We recognize that global mean temperatures have increased over the last several decades and will almost certainly continue to increase in the future as a result of greenhouse gases. Although increasing temperature may have an effect on the unsilvered fritillary, the information presented in the petition or available in our files does not support a meaningful prediction as to whether the overall impact will be negative or positive, or some combination of negative and positive impacts. Increasing temperature could result in more severe and frequent drought, especially in the Southwest (Karl et al. 2009, p. 42). However, we are not aware of any formal studies on the direct effect of rising global temperature on drought severity or frequency (Karl et al. 2009, p. 5). Also, drought severity and frequency are a function of a complex series of factors, such as El Niño intensity and duration and geographic variations in sea surface temperature, which may also be affected in some manner by increasing temperatures, thereby compounding the uncertainty associated with precipitation projections (Karl et al. 2009, p. 105). Uncertainty also arises when extrapolating from a larger scale ( e.g., North America or the Southwest) to the limited range of the unsilvered fritillary. A projected increase in mean temperatures in the Southwest does not necessarily equate to a similar degree of increase in local areas, such as the central coast of California, and both the degree and direction of changes in climate and weather will vary at the local level. More importantly, the response of plants and animals to climate change is uncertain and will likely vary locally and regionally. For example, citing Karl et al. (2009, p. 132), the petition states that the ranges of many California plants are projected to decline up to 80 percent due to climate change. However, this projection is only one of many projections. The 80-percent projection is a worst-case scenario in which the most severe degree of climate change was assumed, and in which plants were assumed to have no ability to shift their range in response to climate change. Other scenarios, where plants were assumed to be able to shift range, revealed that plant ranges in some areas were projected to increase, such as in the Central Western region which includes the range of the unsilvered fritillary (Loarie et al. 2008, Figure 4, p. 6). In addition, although the range of some types of vegetation may decline, grasslands are expected to increase (Karl p. 131), which may be beneficial for the unsilvered fritillary. Finally, we cannot meaningfully predict the impact on the unsilvered fritillary if drought severity and frequency were to increase in the central coast. For example, wildfires are likely to increase with worsening droughts (Karl et al. 2009, p. 43), but as pointed out in the petition, wildfires may have a positive as well as a negative effect on the unsilvered fritillary and its habitat. Therefore, we have determined that the information presented in the petition and in our files concerning the potential threat of climate change to the unsilvered fritillary or either of its extant subspecies does not present substantial information indicating that the petitioned action may be warranted.

The petition lists development, agriculture, livestock grazing, insecticides, invasive plants, drought, and climate change as threats to the unsilvered fritillary. However, the petition provided only this general list of potential threats to the unsilvered fritillary, but did not provide information that these potential threats are acting on the habitat of the unsilvered fritillary. We recognize that other listed Speyeria butterflies have been reduced, some substantially, due to human-caused disturbances, but the petition does not cite any site-specific proposed development projects or land-use conversion projects that would occur within unsilvered fritillary habitat. In addition, the petition does not provide specific information on the location(s) of unsilvered fritillary populations. Therefore, it is not possible to determine if a development project would actually affect the unsilvered fritillary, given that we do not have recent data detailing where this species occurs. The best information that we have regarding the location of known populations is the two records in the CNDDB, one of which is in a State park and is protected by California State law (NatureServe 2009, not paginated). Also, a large portion of the clemencei subspecies' range is public land and therefore protected from many sources of habitat destruction and alteration. The petition also does not provide any information that any other threats to the unsilvered fritillary's habitat—including agriculture, livestock grazing, insecticides, or invasive plants—are occurring within the current range of the species and its two remaining subspecies, or are threatening the habitat of the species. There is ample evidence that global mean temperatures will likely increase in the future due to greenhouse gases; however, the petition does not present any information, nor do we have any information in our files, that indicates that the local climate and weather of the central coast is likely to change, the projected degree and nature of any change, or that drought is likely to increase in severity or frequency. Consequently, we find that the information provided in the petition and in our files does not present substantial scientific or commercial information indicating that listing the unsilvered fritillary or either of its extant subspecies may be warranted due to the present or threatened destruction, modification, or curtailment of the species' habitat or range.

The petition states that collection is not known to constitute a threat to the unsilvered fritillary; however, the rarity of the species makes it more attractive to collectors (WildEarth Guardians 2010, p. 9). The petition also states that butterfly populations that are small and easily accessible are especially vulnerable to overcollection (WildEarth Guardians 2010, p. 9).

The petition does not provide any information, nor do we have any information in our files, that would indicate that the unsilvered fritillary is a target of collectors or that it is threatened by collection. Although an extensive commercial trade has been documented for the Callippe silverspot and the Behren's silverspot butterflies, as well as for other imperiled and rare butterflies (U.S. Attorney's Office 1994, United States v. Richard J. Skalski, Thomas W. Kral, and Marc L. Grinnell, Case No. CR932013, 1993, in 62 FR 64306, p. 64313), insects are rarely affected by human overcollecting pressures, due to their high reproductive capabilities (Pyle, Bentzien, and Opler 1981, in Hammond and McCorkle 1983, p. 218).

In summary, we find that the information provided in the petition and available in our files does not present substantial scientific or commercial information indicating that listing the unsilvered fritillary or either of its extant subspecies may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes.

The petition states that adult and larval butterflies are subject to predation by a wide variety of vertebrate and invertebrate wildlife ( e.g., birds, reptiles, amphibians, and other insects) and that the small size of unsilvered fritillary populations increases their vulnerability to extirpation from disease or predation (WildEarth Guardians 2010, p. 10). The petition also states that scientists have suggested that disease could explain the extinction of the atossa subspecies; however, drought and overgrazing have also been mentioned as reasons for this subspecies' extinction (WildEarth Guardians 2010, p. 9, citing Orzak 1974, in Hammond and McCorkle 1983, p. 220).

The petition does not provide any information that would indicate that disease or predation are threats to the unsilvered fritillary, nor do we have any information in our files that would indicate that disease or predation are threats to the species. Disease has been suggested as a potential cause of the extinction of the atossa subspecies (University of California Berkeley 2009, p. 1). However, the petition did not present any information that would substantiate that claim, and the extinction of the atossa subspecies has also been attributed to several other causes. The petition also did not provide any information on the types of diseases known to occur in the unsilvered fritillary or other Speyeria butterflies or any species of butterfly or their vulnerability to disease. Therefore, we find that the information provided in the petition and available in our files does not present substantial scientific or commercial information indicating that listing the unsilvered fritillary or either of its extant subspecies may be warranted due to disease or predation.

The petition asserts that the unsilvered fritillary is not adequately protected by Federal or State laws or policies to prevent its endangerment or extinction (WildEarth Guardians 2010, p. 10). The unsilvered fritillary is not listed under the Act, nor are any of its subspecies. The species is also not listed under the California Endangered Species Act (CESA), because the CESA does not provide for the listing and protection of insects. The petition further states that while the various rankings of the unsilvered fritillary and its subspecies by NatureServe ( e.g., G1G2), CNDDB, and the California Wildlife Action Plan ( see Species Information section) indicate biological imperilment, they do not provide any regulatory or policy mechanisms to protect the unsilvered fritillary (WildEarth Guardians 2010, p. 10). The petition provides no further information on any other State, Federal, or local regulations.

As discussed in the petition and in the Species Information section above, several sources express concern over the status of the unsilvered fritillary, and the species is included in the State's CNDDB list of at-risk species (WildEarth Guardians 2010, p. 11). However, contrary to the petition, we believe that the at-risk classification extends some level of consideration under the California Environmental Quality Act when project impacts are reviewed. Also, one of the two occurrences in the CNDDB is within Big Basin Redwoods State Park, and its habitat within the park is afforded a high degree of protection by State law and regulations. Additionally, information in our files indicates that a substantial portion of the putative range of the unsilvered fritillary, as identified in the petition (WildEarth Guardians 2010, p. 5), is public land (Ventana Wilderness, Los Padres National Forest, and State and County parks), where, if present, the species would be protected from many types of impacts ( e.g., development, agriculture, and, at least in the case of Ventana Wilderness and State parks, off-road vehicles) by Federal, State, and local laws and regulations. Therefore, we find that the information provided in the petition and available in our files does not present substantial scientific or commercial information indicating that listing the unsilvered fritillary or either of its extant subspecies may be warranted due to the inadequacy of existing regulatory mechanisms. There are no significant threats to the species as discussed in factors A, B, C, and E.

The petition states that because the unsilvered fritillary's range was historically limited, has been further reduced by anthropogenic causes, and is vulnerable to weather events such as drought and catastrophic fires, the Service should consider this butterfly's narrow range itself as a threat to the taxon (WildEarth Guardians 2010, pp. 15-16). For example, loss of habitat and populations of another Speyeria species, the Regal fritillary ( Speyeria idalia ), have disrupted the gene flow between populations, and the species is consequently more prone to extinction due to genetic and demographic factors (WildEarth Guardians 2010, p. 16, citing Williams et al. 2003, p. 17). The petition further states that the Service has routinely recognized that small population size and restricted range increase the likelihood of extinction (WildEarth Guardians 2010, p. 15). The petition also lists human population growth ( see factor A for a discussion of population growth and development), insecticide use ( see factor A for a discussion of insecticide use), and nonnative thistle seed weevils (scientific name not provided in petition) as threats to the unsilvered fritillary. Finally, the petition asserts that the cumulative effects of grazing, development, agriculture, off-road vehicles, and climate change threaten the species.

We recognize the risks that stochastic (random chance) events may present to small populations, and we agree that the limited range of the unsilvered fritillary may exacerbate its vulnerability to these events. However, the mere fact that a rare species is potentially vulnerable to stochastic processes does not necessarily mean that it is reasonably likely to experience, or have its status affected by, a given stochastic process. There must be some information to indicate that the unsilvered fritillary and its habitat are at least susceptible to a threat or stochastic event, such as a severe, widespread disease among its host plants, and that the species would be negatively affected by the event. Typically, it is the combination of small size, the number of populations, and isolation of small populations, in conjunction with a threat or stochastic event ( e.g., catastrophic fire), that may pose a threat to a species. The petition, however, includes only very limited information on the number of populations and does not provide information on the distribution and size of populations or the presence or absence of connectivity between populations. Also, the mere fact that a species is rare does not necessarily equate to a threat. A species that has always been rare, yet continues to survive, could be well equipped to continue to exist into the future. Many naturally rare species have persisted for long periods within small geographic areas, and many naturally rare species exhibit traits that allow them to persist despite their small population sizes.

The petition states that “nonnative thistle seed weevils may also pose a threat to the unsilvered fritillary” (WildEarth Guardians 2010, p. 16, NatureServe 2009, not paginated). However, neither the petition nor NatureServe provides any other information on thistle seed weevils or the impact they may have on the unsilvered fritillary. We assume that weevils can destroy thistles, which are one of the plants on which the unsilvered fritillary has been observed feeding (NatureServe 2009, not paginated). However, beyond that, we have no information in our files, and the petition did not provide any information that thistle seed weevils occur within the range of the unsilvered fritillary, or that they are destroying substantial numbers of thistles.

The information in the petition and in our files on the potential impacts of grazing, development, agriculture, off-road vehicles, and climate change are discussed in factor A. These potential impacts in combination could have a greater effect on the unsilvered fritillary than they would have individually. However, as summarized in factor A, the petition provided only this general list of potential threats to the unsilvered fritillary, but did not provide information that these potential threats are acting on the habitat of the unsilvered fritillary. The petition also did not provide any information that multiple potential threats are acting together on the habitat of the unsilvered fritillary.

In summary, we find that the information provided in the petition and available in our files does not present substantial scientific or commercial information indicating that listing the unsilvered fritillary or either of its extant subspecies may be warranted due to other natural or manmade factors affecting the species' continued existence.

In summary, the petition does not present substantial scientific or commercial information, because it does not provide any information on the location and magnitude of threats within the range of the species or specific threats to any occurrence or population of the species or either of its extant subspecies. The petition provides only very limited information on the number of populations within this area and no information on the distribution and size of populations, and we do not have this information in our files. The unsilvered fritillary is a rare butterfly occurring in the Santa Cruz Mountains of San Mateo, Santa Cruz, and Santa Clara Counties, and in the Santa Lucia Mountains of Monterey and San Luis Obispo Counties, California, which is an area encompassing thousands of square miles. The petition cites threats to other listed Speyeria butterflies and requests we consider those relative to the unsilvered fritillary. While four other Speyeria species are listed as either threatened or endangered, the fact that these species are listed under the Act does not in and of itself mean that the unsilvered fritillary or either of its extant subspecies is threatened or endangered.

In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information must contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act. We found no information to suggest that threats are acting on the unsilvered fritillary such that the species may become extinct now or in the foreseeable future.

On the basis of our determination under section 4(b)(3)(A) of the Act, we conclude that the petition does not present substantial scientific or commercial information to indicate that listing the unsilvered fritillary or either of its extant subspecies under the Act as threatened or endangered may be warranted at this time. Although we will not review the status of the species at this time, we encourage interested parties to continue to gather data that will assist with the conservation of the unsilvered fritillary or either of its extant subspecies. If you wish to provide information regarding the unsilvered fritillary or either of its extant subspecies, you may submit your information or materials to the Field Supervisor, Ventura Fish and Wildlife Office ( see ADDRESSES ), at any time.

A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Ventura Fish and Wildlife Office ( see ADDRESSES ).

The primary authors of this notice are the staff members of the Ventura Fish and Wildlife Office ( see FOR FURTHER INFORMATION CONTACT ).

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