Background

The Comprehensive Crime Control Act of 1984 (Pub. L. 98-473), which was signed into law on October 12, 1984, amended section 201 of the CSA (21 U.S.C. 811) to give the Attorney General the authority to temporarily place a substance into Schedule I of the CSA for one year without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid imminent hazard to the public safety. The Attorney General may extend the temporary scheduling up to six months during pendency of proceedings under 21 U.S.C. 811(a)(1). A substance may be temporarily scheduled under the emergency provisions of the CSA if it is not listed in any other schedule under section 202 of the CSA (21 U.S.C. 812) or if there is no exemption or approval in effect under 21 U.S.C. 355 for the substance. The Attorney General has delegated his authority under 21 U.S.C. 811 to the DEA Administrator (28 CFR 0.100).

As per section 201(h)(4) of the CSA (21 U.S.C. 811(h)(4)), the Deputy Administrator, now Administrator, transmitted notice of her intention to temporarily place JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol into Schedule I of the CSA to the Assistant Secretary for Health of the Department of Health and Human Services (HHS) in a letter dated October 6, 2010. In response to this notification, the Assistant Secretary of Health, HHS communicated in a letter dated November 22, 2010, to the then-DEA Acting Administrator that there are no exemptions or approvals in effect for JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol under Section 505 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 355). The substances are not listed in any other schedule in 21 U.S.C. 812.

A notice of intent to temporarily place JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol into Schedule I of the CSA was published in the Federal Register on November 24, 2010 (75 FR 71635). Before making a finding that temporarily placing a substance into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator must consider three of the eight factors (factors 4, 5, and 6) set forth in section 201(c) of the CSA (21 U.S.C. 811(c)). These factors are the history and current pattern of abuse, the scope, duration, and significance of abuse, and what, if any, risk there is to the public health, including actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).

The temporary placement of these five synthetic cannabinoids into Schedule I of the CSA is necessary in order to avoid an imminent hazard to the public safety. First, these substances are not intended for human consumption, but there has been a rapid and significant increase in abuse of these substances in the United States. As a result of this abuse, synthetic cannabinoids are banned in at least 18 states in the United States and several countries, and all five branches of the U.S. military prohibit military personnel from possessing or using synthetic cannabinoids. Second, law enforcement has seized synthetic cannabinoids in conjunction with controlled substances and based on self-reports to law enforcement and health care professionals, synthetic cannabinoids are abused for their psychoactive properties. Third, numerous state and local public health departments and poison control centers have issued health warnings describing the adverse health effects associated with synthetic cannabinoids. Based on scientific data currently available, these five substances have the potential to be extremely harmful and, therefore, pose an imminent hazard to the public safety.

A “cannabinoid” is a class of chemical compounds in the marijuana plant that are structurally related. The cannabinoid Δ9-tetrahydrocannabinol (THC) is the primary psychoactive constituent of marijuana. “Synthetic cannabinoids” are a large family of chemically unrelated structures functionally (biologically) similar to THC, the active principle of marijuana.

Two of the five synthetic cannabinoids (CP-47,497 and cannabicyclohexanol) were synthesized in the early 1980s for research purposes in the investigation of the cannabinoid system. JWH-018, JWH-073, and JWH-200 were prepared in the mid-1990s and evaluated to further advance understanding of drug-receptor interactions regarding the cannabinoid system. Developed and evaluated as research tools, no other known legitimate uses have been identified for these five synthetic cannabinoids. Furthermore, these five synthetic cannabinoids are not intended for human consumption.

The emergence of these five synthetic cannabinoids represents a recent phenomenon in the U.S. designer drug market. Since the initial identification of JWH-018 by U.S. forensic laboratories, many additional synthetic cannabinoids including JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol have been identified in related herbal incense products and plant food. These synthetic cannabinoids have purported psychotropic effects when smoked or ingested. These substances are typically found in powder form or are dissolved in appropriate solvents, such as acetone, before being sprayed on the plant material contained in the herbal incense products.

The popularity of these THC-like synthetic cannabinoids has significantly increased throughout the United States, and they are being abused for their psychoactive properties as reported by law enforcement, the medical community, and through scientific literature.

Some of the product names include, but are not limited to, “Spice,” “K2,” and many more. Due to sophisticated marketing, the products that contain these five THC-like synthetic cannabinoids are perceived as “legal” alternatives to marijuana despite the fact that they are typically advertised as herbal incense or plant food (Bonsai-18) by Internet retailers, tobacco shops, head shops, and other domestic brick and mortar retail venues, and labeled “Not For Human Consumption.” No evidence exists that these synthetic cannabinoids have value as an additive to herbal incense products due to the absence of odor associated with the substances.

Based on law enforcement encounters, these five substances are typically found laced on plant material. The plant material is packaged in small pouches or packets, and is being sold over the Internet, in tobacco and smoke shops, drug paraphernalia shops, gas stations, and convenience stores as herbal incense products, giving customers of all ages direct access to these five substances. Research articles propose that the packaging is professional and conspicuous, targeting young people, possibly eager to use cannabis, but who are afraid of the judicial consequences and/or association with illicit drugs.

According to Internet discussion boards and law enforcement encounters reported directly to DEA, these five synthetic cannabinoids are being both abused alone and/or being sprayed on plant material (which is then smoked). The most common route of administration of these synthetic cannabinoids is by smoking (using a pipe, a water pipe, or rolling the drug-spiked plant material in cigarette papers).

These five synthetic cannabinoids alone or spiked on plant material have the potential to be extremely harmful due to their method of manufacture and high pharmacological potency. There is little information regarding the pharmacology, toxicology, and safety of these substances in humans given the minimal amount of pre-clinical investigations undertaken regarding these substances; therefore, the full danger of these drugs has not yet been determined.

As of January 31, 2011, 18 states in the United States and other countries have controlled one or more of the five synthetic cannabinoids. Moreover, all five branches of the military prohibit their personnel from possessing or using synthetic cannabinoids associated with products such as Spice and K2.

According to forensic laboratory reports, the initial appearance of these synthetic cannabinoids in herbal incense products in the United States occurred in November 2008 when U.S. Customs and Border Protection first encountered products such as Spice.

The increasing abuse of the five synthetic cannabinoids is demonstrated by the increase in federal, state, and local law enforcement activity associated with these substances. The National Forensic Laboratory Information System, a national repository for drug evidence analyses from forensic laboratories across the United States, has reported in excess of 500 exhibits containing synthetic cannabinoid from January 2010 through September 2010. These exhibits came from numerous states across the nation including Alabama, Arkansas, California, Florida, Hawaii, Iowa, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Missouri, North Dakota, Nebraska, Nevada, Oklahoma, Pennsylvania, South Carolina, Tennessee, and Virginia.

Even though there is no evidence of legitimate non-research related use for these synthetic cannabinoids, multiple shipments of JWH-018 and JWH-073 have been encountered by U.S. Customs and Border Protection in 2010. One enforcement operation encountered five shipments of JWH-018 totaling over 50 kilograms (110.2 pounds) of powder. In addition, bulk loads of JWH-018 and JWH-200 have been encountered by law enforcement in 2010. For example, in Casper, Wyoming, DEA agents encountered large quantities of herbal incense products laced with the synthetic cannabinoid JWH-018 in conjunction with methamphetamine and other illegal drugs in execution of search and arrest warrants.

On March 24, 2010, the American Association of Poison Control Centers reported receiving 112 calls from 15 states related to synthetic cannabinoids to U.S. poison centers since 2009. Just nine months later, the number of calls increased to over 2,700 from 49 states and the District of Columbia.

Health warnings have been issued by numerous state and local public health departments and poison control centers describing the adverse health effects associated with these synthetic cannabinoids and their related products, including agitation, anxiety, nausea, vomiting, tachycardia (fast, racing heartbeat), elevated blood pressure, tremor, seizures, hallucinations, paranoid behavior, and non-responsiveness.

Smoking these synthetic cannabinoids for the purpose of achieving intoxication and experiencing the psychoactive effects has been identified as a reason for emergency room visits and calls to poison control centers. In a fact sheet by the National Drug Court Institute, the problem of synthetic cannabinoid abuse is described as “significant and disturbing.” This is supported by information that was communicated to DEA from one of the major private toxicology laboratories. Based on laboratory findings from drug screens for the period of July 2010 through November 2010, over 3,700 specimens tested positive for either JWH-018 or JWH-073. They also indicated that they were finding 30-35% positivity for specimens submitted by juvenile probation departments.

Case reports describe psychotic episodes, withdrawal, and dependence associated with use of these synthetic cannabinoids, similar to syndromes observed in marijuana abuse. In addition, based on law enforcement encounters reported directly to DEA, when responding to incidents involving individuals who have reportedly smoked these synthetic cannabinoids, first responders report that these individuals have suffered from intense hallucinations. Moreover, emergency department physicians and toxicologists have reported the adverse health effects associated with smoking herbal incense products laced with these substances. Furthermore, based on law enforcement encounters, suspected Driving Under the Influence of Drug incidents are attributed to the smoking of synthetic cannabinoids. For example, in September 2010, police in Nebraska responded to an incident involving a teenage male who had careened his truck into the side of a residence. After striking the residence and several more items, the teen continued several more yards before coming to a complete stop. Prior to crashing the truck, the individual had driven past a junior high school and nearly struck a child. Upon further investigation, the driver of the vehicle admitted to smoking “Wicked X,” a product marketed as “herbal incense” and known to contain synthetic cannabinoids, prior to the accident. Preliminary toxicology reports indicated that the individual did not have any alcohol or other illegal substances in his system.

Detailed chemical analyses by DEA and other investigators have found these synthetic cannabinoids spiked on plant material in herbal incense products marketed to the general public. Product analyses have found variations in both the synthetic cannabinoid found on the plant material and the amount. As proposed in scientific literature, the risk of adverse health effects is further increased by the fact that similar products vary in the composition and concentration of synthetic cannabinoids spiked on the plant material.

Self-reported abuse of these THC-like synthetic cannabinoids either alone ( e.g., in pills with the substance in powder form) or spiked on plant material appear extensively on Internet discussion boards, and abuse has been reported to public health officials and law enforcement. The abuse of these substances spiked on plant material is corroborated by forensic laboratory analysis of products encountered by law enforcement.

According to the U.S. Customs and Border Protection, a number of the products and synthetic cannabinoids appear to originate from foreign sources. Product manufacturing operations encountered by law enforcement corroborate that the herbal incense products are manufactured in the absence of quality controls and devoid of regulatory oversight. Law enforcement has encountered the manufacture of herbal incense products occurring in such places as residential neighborhoods. These products and associated synthetic cannabinoids are readily accessible via the Internet.

Based on the above data, the continued uncontrolled manufacture, distribution, importation, exportation, and possession of JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol pose an imminent hazard to the public safety. DEA is not aware of any recognized therapeutic uses of these synthetic cannabinoids in the United States.

DEA has considered the three criteria for placing a substance into Schedule I of the CSA (21 U.S.C. 812). The data available and reviewed for JWH-073, JWH-018, JWH-200, CP47,497, and cannabicyclohexanol indicate that these synthetic cannabinoids each has a high potential for abuse, no currently accepted medical use in treatment in the United States and a lack of accepted safety for use under medical supervision.

In accordance with the provisions of section 201(h) of the CSA (21 U.S.C. 811(h)) and 28 CFR 0.100, the Administrator has considered the available data and the three factors required to support a determination to temporarily schedule five synthetic cannabinoids: 1-butyl-3-(1-naphthoyl)indole, 1-pentyl-3-(1-naphthoyl)indole, 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole, 5-(1,1-dimethylheptyl)-2-[(1 R, 3 S )-3-hydroxycyclohexyl]-phenol, and 5-(1,1-dimethyloctyl)-2-[(1 R, 3 S )-3-hydroxycyclohexyl]-phenol in Schedule I of the CSA and finds that temporary placement of these synthetic cannabinoids into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety.

With the issuance of this final order, JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol become subject to the regulatory controls and administrative, civil and criminal sanctions applicable to the manufacture, distribution, possession, importation, and exportation of a Schedule I controlled substance under the CSA.

1. Registration. Any person who manufactures, distributes, dispenses, imports, exports, or possesses JWH-018, JWH-073, JWH-200, CP-47,497, or cannabicyclohexanol or who engages in research or conducts instructional activities with respect to JWH-018, JWH-073, JWH-200, CP-47,497, or cannabicyclohexanol, or who proposes to engage in such activities, must be registered to conduct such activities in accordance with 21 U.S.C. 823 and 958. Any person who is currently engaged in any of the above activities and is not registered with DEA must submit an application for registration and may not continue their activities until DEA has approved that application. Retail sales of Schedule I controlled substances to the general public are not allowed under the Controlled Substances Act.

2. Security. JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol are subject to Schedule I security requirements. Accordingly, appropriately registered DEA registrants must manufacture, distribute and store these substances in accordance with 1301.71; 1301.72(a), (c), and (d); 1301.73; 1301.74; 1301.75(a) and (c); and 1301.76 of Title 21 of the Code of Federal Regulations as of March 1, 2011.

3. Labeling and packaging. All labeling and packaging requirements for controlled substances set forth in Part 1302 of Title 21 of the Code of Federal Regulations shall apply to commercial containers of JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol. Current DEA registrants shall have thirty (30) calendar days from the effective date of this Final Order to be in compliance with all labeling and packaging requirements.

4. Quotas. Quotas for JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol will be established based on registrations granted and quota applications received pursuant to part 1303 of Title 21 of the Code of Federal Regulations.

5. Inventory. Every DEA registrant who possesses any quantity of JWH-018, JWH-073, JWH-200, CP-47,497, or cannabicyclohexanol is required to keep inventory of all stocks of these substances on hand pursuant to 1304.03, 1304.04, and 1304.11 of Title 21 of the Code of Federal Regulations. Every current DEA registrant who desires registration in Schedule I for JWH-018, JWH-073, JWH-200, CP-47,497, or cannabicyclohexanol shall conduct an inventory of all stocks of these substances. Current DEA registrants shall have thirty (30) calendar days from the effective date of this Final Order to be in compliance with all inventory requirements.

6. Records. All registrants who handle JWH-018, JWH-073, JWH-200, CP- 47,497, or cannabicyclohexanol are required to keep records pursuant to 1304.03, 1304.04, 1304.21, 1304.22, and 1304.23 of Title 21 of the Code of Federal Regulations. Current DEA registrants shall have thirty (30) calendar days from the effective date of this Final Order to be in compliance with all recordkeeping requirements.

7. Reports. All registrants are required to submit reports in accordance with 1304.33 of Title 21 of the Code of Federal Regulations. Registrants who manufacture or distribute JWH-018, JWH-073, JWH-200, CP-47,497, or cannabicyclohexanol are required to comply with these reporting requirements and shall do so as of March 1, 2011.

8. Order Forms. All registrants involved in the distribution of JWH-018, JWH-073, JWH-200, CP-47,497, or cannabicyclohexanol must comply with order form requirements of part 1305 of Title 21 of the Code of Federal Regulations as of March 1, 2011.

9. Importation and Exportation. All importation and exportation of JWH-018, JWH-073, JWH-200, CP-47,497, or cannabicyclohexanol must be conducted by appropriately registered DEA registrants in compliance with part 1312 of Title 21 of the Code of Federal Regulations on or after March 1, 2011.

10. Criminal Liability. The manufacture, distribution, dispensation, or possession with the intent to conduct these activities; possession; importation; or exportation of JWH-018, JWH-073, JWH-200, CP-47,497, or cannabicyclohexanol not authorized by, or in violation of the CSA or the Controlled Substances Import and Export Act occurring as of March 1, 2011 is unlawful.

This final temporary scheduling order meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.

This final temporary scheduling order does not preempt or modify any provision of State law; nor does it impose enforcement responsibilities on any State; nor does it diminish the power of any State to enforce its own laws. Accordingly, this order does not have federalism implications warranting the application of Executive Order 13132.

Pursuant to section 808(2) of the Congressional Review Act, the agency is not required to comply with the Act if it makes a good faith finding that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. It is in the public interest to schedule these cannabinoids immediately because they pose a public health risk. Use of materials spiked with these cannabinoids has been the cause of emergency room visits and calls to poison control centers. The adverse health effects associated with these synthetic cannabinoids and their related products include agitation, anxiety, nausea, vomiting, tachycardia (fast, racing heartbeat), elevated blood pressure, tremor, seizures, hallucinations, paranoid behavior, and non-responsiveness. The materials have been marketed on products that are available to the general public, and their manufacture is devoid of quality controls and unregulated.

This temporary scheduling action is taken pursuant to section 811(h), which is specifically designed to enable DEA to act in an expeditious manner to avoid an imminent hazard to the public safety from new or designer drugs or abuse of those drugs. Section 811(h) exempts the temporary scheduling order from standard notice and comment rulemaking procedures to ensure that the process moves swiftly. For the same reasons that underlie section 811(h), that is, DEA's need to move quickly to place these five cannabinoids into Schedule 1 because they pose a threat to public health, it would be contrary to the public interest to delay implementation of the temporary scheduling order by requiring DEA to undertake the procedures necessary to comply with the Congressional Review Act prior to the order taking effect.

This final temporary scheduling order will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $126,400,000 or more (adjusting for inflation) in any one 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.

Under the authority vested in the Attorney General by section 201(h) of the CSA (21 U.S.C. 811(h)), the Administrator hereby amends 21 CFR part 1308 as follows:

In this document, the Bureau of Prisons delays the effective date of the final rule that appeared in the Federal Register on December 8, 2010, (75 FR 76263) and the subsequent correction which appeared in the Federal Register on December 29, 2010 (75 FR 81853). The new effective date for both documents is June 20, 2011.

The first document issued a final rule amending the Bureau's Inmate Discipline Program and Special Housing Units (SHU) regulations (28 CFR part 541, subpart A and subpart B), and the second document corrected typographical and numbering errors, but made no substantive changes to the final rule.

Previously, both the final rule and the correction document had an effective date of March 1, 2011. We now delay the effective date of both the final rule and the correction document until June 20, 2011.

Subpart S Rulemaking

On October 15, 2010, BOEMRE published the Final Rule for 30 CFR 250, Subpart S—Safety and Environmental Management Systems, in the Federal Register (75 FR 63610). This Final Rule incorporates by reference, and makes mandatory, API RP 75, Third Edition, May 2004, reaffirmed May 2008.

This Final Rule became effective on November 15, 2010, and applies to all OCS oil and gas and sulphur operations and facilities under BOEMRE jurisdiction, including drilling, production, construction, well workover, well completion, well servicing, and DOI pipeline activities.

The primary intent of this workshop is to discuss the various elements necessary to implement a robust SEMS for OCS operations and how those elements may be assessed within an operator's management system. The workshop will consist of BOEMRE presentations describing and discussing 30 CFR 250, Subpart S, the background leading to the regulations, frequently asked questions, and audit methodologies for compliance measurement. BOEMRE also will address questions asked by the audience.

There is no registration fee for this workshop. However, to assess the number of participants, BOEMRE requests participants to register with Ms. Deborah O'Brien by phone at (703) 787-1579, or by e-mail at Deborah.O'Brien@boemre.gov, prior to the meeting. The deadline to register is 1 week before the workshop on March 8, 2011. Given the maximum capacity of the meeting room, seating is limited to 500. BOEMRE will make its presentation available via Web site at http://www.boemre.gov/semp/.

BOEMRE will consider any questions submitted in advance so that the workshop can focus on key topics. Please submit questions to Ms. Deborah O'Brien in writing at Deborah.O'Brien@boemre.gov by March 8, 2011.

This Federal Register document does not refer to or impose any information collection requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501 et seq. )

The Department of the Treasury (“Treasury” or “We”) is issuing an amendment to 31 CFR 356.20(b) of the Uniform Offering Circular for the Sale and Issue of Marketable Book-Entry Treasury Bills, Notes, and Bonds  1 (“UOC” or “Auction Rules”) to establish a minimum interest rate of 1/8 of one percent ( i.e., 0.125 percent) for all new marketable Treasury note and bond issues. This amendment is not applicable to reopenings. 2 In this rule we discuss how Treasury determines the interest rate for new note and bond issues, the reason for establishing a minimum interest rate, and the final amendment to the UOC.

In determining the interest rate for new note and bond issues, Treasury sets the interest rate at a 1/8 of one percent increment. The interest rate we establish produces the price closest to, but not above, par that corresponds to the yield awarded to successful competitive bidders. 3 The interest rate in turn is used to establish the amount of the semi-annual interest payment that note and bond investors receive. 4

In an extremely low interest rate environment, a note or bond auction could result in an interest rate lower than Treasury's 1/8 of one percent interest rate increment. If that were to happen, under the current methodology the new security would be issued with a zero percent interest rate and would have no semi-annual interest payments. Treasury is amending the UOC because we believe it is preferable that Treasury notes and bonds pay regular, semi-annual interest payments.

Accordingly, Treasury is amending paragraph (b) of 31 CFR 356.20 to state that if a Treasury note or bond auction results in a yield lower than 0.125 percent, the interest rate will be set at 1/8 of one percent with the price adjusted accordingly ( i.e., at a premium). This change applies to all new marketable Treasury note and bond issues: Treasury fixed-principal  5 (also referred to as nominal) notes and bonds as well as Treasury inflation-protected notes and bonds.

Executive Order 12866. This final rule is not a “significant regulatory action” pursuant to Executive Order 12866.

Administrative Procedure Act (APA). Because this rule relates to public contracts and procedures for United States securities, the notice, public comment, and delayed effective date provisions of the Administrative Procedure Act are inapplicable, pursuant to 5 U.S.C. 553(a)(2).

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

Paperwork Reduction Act. There is no new collection of information contained in this final rule, and, therefore, the Paperwork Reduction Act does not apply. The Office of Management and Budget has approved the collections of information already contained in 31 CFR part 356, under control number 1535-0112. Under the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number.

For the reasons set forth in the preamble, 31 CFR part 356 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On December 15, 2010, EPA published proposed (75 FR 78197) and direct final (75 FR 78164) determinations under the CAA that the Milwaukee-Racine and Sheboygan, Wisconsin areas have attained the 1997 8-hour ozone NAAQS. EPA received an adverse comment on this action and withdrew the direct final approval on January 28, 2011 (76 FR 5078).

EPA received an adverse comment from Midwest Environmental Defense Center, Inc.

Comment: The commenter asserts that section 107(d)(3)(E) of the CAA prohibits redesignation of a nonattainment area to attainment unless five requirements are met. The commenter contends that EPA's Federal Register document describes air quality monitoring data in the Milwaukee-Racine and Sheboygan areas, but does not discuss the other requirements for redesignation. The commenter argues that unless all five criteria for redesignation are met, the Administrator cannot grant the redesignation.

Response: The commenter's concerns are misplaced; the actions that are the subject of these rulemakings are determinations of attainment, and not redesignations to attainment. As EPA stated in its December 15, 2010, direct final rule, the determinations of attainment in this notice are not equivalent to redesignations to attainment under section 107(d)(3) of the CAA. While the commenter is correct that rulemakings redesignating an area to attainment would need to satisfy the criteria of section 107(d)(3)(E), EPA's actions here are not redesignations. EPA is not purporting here to redesignate the Milwaukee-Racine and Sheboygan areas, and thus we acknowledged in the direct final rulemaking that we were not attempting to approve maintenance plans for the areas as required under section 175A of the CAA, nor have we found that the areas have met the other statutory requirements for redesignation. The designation status of each of the areas remains nonattainment for the 1997 8-hour ozone NAAQS until such time as EPA determines, through notice and comment rulemaking, that it meets the CAA requirements for redesignation to attainment. Thus, EPA's rulemaking here addresses only the air quality issue of whether the areas are attaining the 1997 8-hour ozone standard. The commenter offered no objection to EPA's proposed determinations that the Milwaukee-Racine and Sheboygan nonattainment areas are attaining that standard.

EPA is making final determinations that the Milwaukee-Racine and Sheboygan, Wisconsin areas have attained the 1997 8-hour ozone NAAQS. The determinations are based upon complete, quality-assured and certified ambient air monitoring data, which show that the areas have monitored attainment of the 1997 8-hour ozone standard for the 2006-2008 and 2007-2009 monitoring periods. Quality assured data for 2010 available to date indicate that the areas continue to monitor attainment.

As provided in 40 CFR 51.918, the determinations of attainment for the Milwaukee-Racine and Sheboygan areas suspend the requirements for the State of Wisconsin to submit for these areas: An attainment demonstration, associated RACM, RFP plan, contingency measures, and any other planning SIPs related to attainment of the 1997 8-hour ozone NAAQS. These determinations also suspend any requirement for EPA to promulgate FIPs for these areas deriving from the concomitant SIP obligations.

The attainment-related SIP and FIP obligations remain suspended for each area for so long as it continues to attain the 1997 8-hour ozone NAAQS or until it is redesignated for that NAAQS, at which time the obligations end. 40 CFR 51.918.

These actions make determinations based on air quality data, and would, if finalized, result in the suspension of certain Federal requirements. For that reason, these actions:

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

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

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

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

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because a determinations of attainment is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands. However, because there are tribal lands located in Milwaukee County, we provided the affected tribe with the opportunity to consult with EPA on the attainment determination. The consultation occurred on November 15, 2010. The affected tribe raised no concerns.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 2, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. These actions may not be challenged later in proceedings to enforce their requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On October 11, 2006, the Ohio Environmental Protection Agency sent EPA a letter requesting, among other actions, that EPA approve rule revisions to withdraw and permanently retire 240 oxides of nitrogen (NO X ) allowances from the State's 2005 new source allowance set aside under the NO X Budget Trading Program. On February 13, 2008 (73 FR 8197), EPA approved the State's rule revisions, in Ohio Administrative Code (OAC) rule 3745-14-05, into the Ohio state implementation plan (SIP). EPA was subsequently sued on our action, and on June 5, 2009, the U.S. Court of Appeals for the Sixth Circuit vacated our February 13, 2008 rulemaking. As a result, we are amending the codification of the SIP in the Code of Federal Regulations to reflect the court's decision. Because our prior rulemaking was vacated by the U.S. Court of Appeals for the Sixth Circuit, our action today is merely a ministerial action to reflect the court's decision, which imposes no requirements or costs. Therefore, under 5 U.S.C. 553(b)(3)(B), notice and public comment is unnecessary. For similar reasons, EPA has good cause to waive the 30 day delayed effective date under 5 U.S.C. 553(d)(3). This rule is effective upon publication in the Federal Register .

EPA is revising the codification of the Ohio SIP by removing a reference to revisions to OAC 3745-14-05 that were previously incorporated into the Ohio SIP at 40 CFR 52.1870(c)(142). EPA had incorporated these revisions to OAC 3745-14-05 into Ohio's SIP in rulemaking dated February 13, 2008 (73 FR 8197), but the U.S. Court of Appeals for the Sixth Circuit subsequently vacated this action. Therefore, in this action, we are removing and reserving the pertinent paragraph from the Code of Federal Regulations. Reserving this paragraph is a technical change to the codification of the SIP. This action does not alter any other Ohio SIP rulemaking actions, and Ohio is not obligated to take any further action as a result of this action.

This action merely revises the Code of Federal Regulations to reflect the effect of a federal court order and it does not impose any requirements. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 2, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document “we,” “us,” or “our” refer to EPA.

On April 10, 2009, Missouri submitted to EPA for approval into the SIP two new rules, 10 CSR 10-2.385 Control of Heavy Duty Diesel Vehicle Idling Emissions for the Kansas City Ozone Maintenance Area and 10 CSR 10-5.385 Control of Heavy Duty Diesel Vehicle Idling Emissions for the St. Louis Ozone Nonattainment Area. These new rules limit the amount of time a heavy duty diesel vehicle will be permitted to idle while parked or while waiting to load or unload.

These rules apply to owners or operators of commercial, public and institutional heavy duty diesel vehicles (those having a gross vehicle weight rating (GVWR) of greater than 10,000 pounds) that are designed to operate on public streets and highways, whether or not the vehicles are operated on public roadways. These regulations set a time limit of five consecutive minutes idling time ( i.e., when a vehicle's engine is on, but it is not in gear) in any sixty minute period. On November 29, 2010, Missouri requested to withdraw subsection (3)(A) of both rules from the April 2009 request. Subsection (3)(A) states that owners or operators of passenger load/unload locations shall not cause or allow vehicles covered by this rule to idle for more than five minutes in any sixty minute period. Missouri found that there was a discrepancy between subsection (3)(A) and section (1). Section (1), Applicability, does not mention that the rules apply to owners or operators of passenger load/unload locations. Missouri did not intend for passenger load/unload locations to be subject to this rule and thus requested to withdraw subsection (3)(A) to clarify. As a result, EPA is not taking action to approve subsection (3)(A).

The regulations do specify exemptions to the idling limit for certain vehicle types and situations. These exemptions include: road traffic conditions; safety or emergency uses; police, fire, ambulance, public safety and other law enforcement vehicles; service and repair needs; state or Federal inspections; mechanical work; armored vehicles; bus idling for passenger comfort (no greater than fifteen minutes in any sixty minute period); vehicles idling for purposes of using sleeper berth compartments; mechanical difficulties; agricultural operations incidentally operated or moved upon public roads; vehicles using auxiliary equipment powered by the engine; and freight load/unload locations (no greater than thirty minutes in any sixty minute period).

Persons violating this rule may be assessed penalties under state law in accordance with the penalty provisions under sections 643.010-643, RSMo. Enforcement of this regulation will follow Missouri's Guidance for Enforcing the Idle Rules supplied to EPA as clarification on June 4, 2010. Therefore, EPA has determined that the rule meets applicable criteria for enforceability of SIP requirements.

The rule 10 CSR 10-2.385 Control of Heavy Duty Diesel Vehicle Idling Emissions for the Kansas City Ozone Maintenance Area was included as a contingency measure in the Kansas City Maintenance Area 8-hour Maintenance Plan for the Control of Ozone. The contingency measure provision in the plan required the state to implement the idle reduction regulations upon violation of the 1997 8-hour ozone standard. This plan was approved by EPA and effective on October 9, 2007. A violation of the standard occurred during the 2007 ozone season thus triggering the adoption of the rule. The 10 CSR 10-5.385 Control of Heavy Duty Diesel Vehicle Idling Emissions for the St. Louis Ozone Nonattainment Area was adopted by the state to be consistent with the Kansas City Maintenance Area provisions and was not required to be adopted as part of an existing SIP measure or contingency requirement.

These rules will result in reduced emissions of pollutants that contribute to ozone and fine particulate matter. Specifically, these rules lead to elimination of such pollutants resulting from unnecessary extended idling of heavy-duty diesel vehicles. The pollutants reduced by these regulations are volatile organic compounds, nitrogen oxides, carbon monoxide, and fine particulate matter. The approval of this rule will strengthen the Missouri SIP and assist the state in meeting and maintaining compliance with air quality standards, including the standard for ground level ozone.

Missouri's rule is generally consistent with EPA's “Model State Idling Law” (EPA420-S-06-001, April 2006). This model rule was developed with input from the states and industry to address idling issues in a consistent and understandable manner from state to state, to aid in compliance.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

EPA is taking final action to approve the request to amend the Missouri SIP to include Missouri rules 10 CSR 10-2.385 Control of Heavy Duty Diesel Vehicle Idling Emissions for the Kansas City Ozone Maintenance Area and 10 CSR 10-5.385 Control of Heavy Duty Diesel Vehicle Idling Emissions for the St. Louis Ozone Nonattainment Area. The State regulations became effective February 28, 2009.

We are processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comments on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 2, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Background

It is our intent to discuss in this final rule only those topics directly relevant to the development and designation of critical habitat for Carex lutea under the Act (16 U.S.C. 1531 et seq. ). For more information on the taxonomy, biology, and ecology of Carex lutea, refer to the final listing rule published in the Federal Register on January 23, 2002 (67 FR 3120). Information on the associated draft economic analysis (DEA) for the proposed rule to designate critical habitat was published in the Federal Register on August 3, 2010 (75 FR 45592).

Carex lutea is a perennial member of the sedge family (Cyperaceae). Fertile culms (stems) may reach 39 in (1 m) or more in height. The yellowish green leaves are grass-like, with those of the culm mostly basal and up to 11 in (28 cm) in length, while those of the vegetative shoots reach a length of 25.6 in (65 cm).

The species is endemic to Onslow and Pender Counties in the Black River section of the Coastal Plain Province of North Carolina. The North Carolina Natural Heritage Program (NCNHP) recognizes eight populations made up of 17 distinct locations or element occurrences. All of the locations occur within a 16- by 5-mile (26- by 8-kilometer) area, extending southwest from the community of Maple Hill.

Carex lutea generally occurs on fine sandy loam, loamy fine sands, and fine sands with a pH of 5.5 to 7.2, and with a mean of 6.7. These soils are moist to saturated to periodically inundated. Carex lutea occurs in the Pine Savanna (Very Wet Clay Variant) natural community type (Schafale 1994, p. 136). Community structure is characterized by an open to sparse canopy dominated by pond pine ( Pinus serotina ), and usually with some longleaf pine ( P. palustris ) and pond cypress ( Taxodium ascendens ).

Carex lutea is threatened by fire suppression; habitat alteration such as land conversion for residential, commercial, or industrial development; mining; drainage for silviculture and agriculture; highway expansion; and herbicide use along utility and highway rights-of-way.

Carex lutea was listed as endangered under the Act on January 23, 2002 (67 FR 3120). Designation of critical habitat had been found to be not prudent in the proposed listing rule (64 FR 44470, August 16, 1999); however, following a reevaluation of information available for the proposal and new information that came in through the public comment period on the proposal, critical habitat designation was determined to be prudent in the final listing rule (67 FR 3120). However, the development of a designation was deferred due to budgetary and workload constraints.

On December 19, 2007, the Center for Biological Diversity filed a complaint for declaratory and injunctive relief challenging the Service's continuing failure to timely designate critical habitat for this species as well as three other plant species ( Center for Biological Diversity v. Kempthorne, C-04-3240 JL (N. D. Cal.)). In a settlement agreement dated April 11, 2008, the Service agreed to submit for publication in the Federal Register a proposed designation of critical habitat, if prudent and determinable, on or before February 28, 2010, and a final determination by February 28, 2011.

We affirmed that designation of critical habitat for Carex lutea is prudent and determinable, and we published a proposal to designate critical habitat for this species in the Federal Register on March 10, 2010 (75 FR 11080). We accepted public comments on this proposal for 60 days, ending May 10, 2010. On August 3, 2010 (75 FR 45592), we announced the reopening of the public comment period for an additional 30 days (ending September 2, 2010); the availability of a DEA; our proposal to enlarge two previously proposed subunits of critical habitat because we discovered that Carex lutea occupies an area at these two subunits that is greater than what we believed when we were preparing the March 10, 2010, proposed rule; and an amended required determinations section of the proposal (75 FR 45592).

We requested written comments from the public on the proposed designation of critical habitat for Carex lutea during two comment periods. The first comment period, following publication of the proposed rule, opened March 10, 2010 (75 FR 11080), and closed May 10, 2010. The second comment period, associated with the availability of the DEA and our revised proposal, opened August 3, 2010 (75 FR 45592), and closed September 2, 2010. We contacted appropriate Federal, State, County, and local agencies; scientific organizations; and other interested parties, and invited them to comment on the proposed rule and the associated DEA.

During the first comment period (March 10 through May 10, 2010), we received two comment letters directly addressing the proposed critical habitat designation. During the second comment period (August 3 through September 2, 2010), we received one comment letter addressing the proposed critical habitat designation and the DEA. We did not receive any requests for a public hearing, so no public hearing was held. Comments we received, including comments from peer reviewers (see below), are addressed in the following summary and incorporated into the final rule as appropriate.

In accordance with our peer review policy published in the Federal Register on July 1, 1994 (59 FR 34270), we solicited expert opinions from three knowledgeable individuals with scientific expertise including familiarity with the species, the geographic region in which the species occur, and conservation biology principles pertinent to the species. We received responses from all three peer reviewers.

We reviewed all comments we received from peer reviewers for substantive issues and new information regarding critical habitat for Carex lutea. With a few exceptions, the peer reviewers generally concurred with our methods and conclusions, indicating the Service had used the most current scientific information available; had accurately described the species, their habitat requirements, the primary constituent elements (PCEs) for the species, the reasons for their decline, and threats to their habitat; and had done a thorough job of delineating critical habitat using the best available scientific information.

Comment 1: One reviewer pointed out that, for those sites that occur on land currently owned by the North Carolina Division of Parks and Recreation (NCDPR) or lands expected to be transferred to it in the near future (Sandy Run Savannas and Haws Run), the savanna restoration plans are unclear because of funding and on-site personnel uncertainties; however prescribed burning has been initiated on the parcels.

Our Response: The Service appreciates the work that the NCDPR has done to protect and enhance Carex lutea and its habitat, such as the prescribed burns. NCDPR will continue to manage the habitat as resources allow. Additionally, the Service will continue to work with NCDPR to help protect, manage, and enhance Carex lutea and its habitat that occurs on the lands as funding becomes available.

Comment 2: One reviewer stated that sea level rise, as a consequence of climate change, could have significant long-term impacts on these populations because the elevation range is only 6.0 ft (1.83 m) to 14.0 ft (4.27 m) for all Sandy Run and Haws Run properties. Additionally, rising water tables may result in shifts of savanna species to higher landscape positions within the natural area.

Our Response: The Service is concerned about global climate change and how sea level rise will affect federally listed species. We will continue to monitor rising water tables and consider actions to protect Carex lutea.

Comment 3: Another reviewer summarized that the greatest threats are inadequate fire and the consequences thereof to Carex lutea habitat at protected sites. The reviewer further stated that climate change may exacerbate some of the problems associated with this threat.

Our Response: The Service will continue to monitor threats to Carex lutea and its habitat and will work with land owners, as appropriate, to encourage prescribed fires and other beneficial management activities. We are not aware of any populations that have been affected by or may be affected by climate change in the future. We will also monitor and work to address potential effects if they occur.

Comment 4: One reviewer commented that fire suppression allows critical habitat to be invaded by nonindigenous plants and animals that are not fire-adapted.

Our Response: The Service agrees with the reviewer's statement, and we included a sentence stating this in the Special Management Considerations or Protections section of this rule.

Comment 5: One reviewer pointed out that Baymeade and possibly Mandarin soils are too dry for Carex lutea and indicated that if Carex lutea is known from an area mapped as Baymeade that it likely occurs on a wetter soil type that is too small to map.

Our Response: The Service reviewed the characteristics for Baymeade and Mandarin soils. Baymeade soil is considered a well-drained soil with rapid permeability, and Mandarin soil is considered somewhat poorly drained. We agree with the commenter and have made changes in the Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements (Soil) section. We removed Baymeade from the list of soil types where Carex lutea may occur. Because Mandarin soils are somewhat poorly drained, we made no changes to this soil type in this final rule.

Comment 6: One reviewer clarified that perigynia frequently detach individually or a few together from the spikes and rarely, if ever, reach the ground while still attached to the spike and culm.

Our Response: The Service agrees with the reviewer's statement, and we made the appropriate changes in the Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring section.

Comment 7: One reviewer commented that while drainage ditches may have suitable wetland soils and are able to support Carex lutea, their hydrologic regimes are not natural and it is likely that seeds produced from ditch populations are transported off site to unsuitable habitat during precipitation events.

Our Response: The Service agrees with this statement, and we included a sentence clarifying this in the Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements (Water) section.

Comment 8: One reviewer asked if it was possible for the final rule to refer to the U.S. Department of Agriculture's (USDA) National Agriculture Imagery Program aerial photos that would show the critical habitat as it existed on the date the photos were taken in order to resolve any conflicts regarding the beginning date of any development within the critical habitat area's boundaries.

Our Response: Our regulations require us to provide textual descriptions of the boundaries of critical habitat for a species. These descriptions are most commonly provided using latitude-longitude or Universal Transverse Mercator (UTM) coordinate pairs. The USDA National Agriculture Imagery Program maps do not satisfy this requirement. However, the USDA National Agriculture Imagery Program aerial photos will be made available for viewing at the office listed in the ADDRESSES section of this rule.

Comment 9: One reviewer noted that Unit 6, subunit A, The Neck Savanna has the additional significance of being the type locality for Carex lutea.

Our Response: The Service agrees with this statement, and we have added language in the unit description to acknowledge this.

Comment 10: One reviewer pointed out that the locations of subunits within Unit 7 were not adequately described.

Our Response: We agree and have amended the location description in the Final Critical Habitat Designation section of this final rule.

Comment 11: One reviewer mentioned that the map for Unit 7 is unclear as subunits 7A and 7B appear as only one polygon.

Our Response: The Service agrees with this comment; however, it is difficult to show subunits 7A and 7B as separate polygons at the resolution required for Federal Register publication. Subunits 7A and 7B are only separated by approximately 25 feet (7.6 meters), the width of a gravel road through the site. The boundaries are properly identified in the Final Critical Habitat Designation and Regulation Promulgation sections of this rule. More detailed maps that show the separation of subunits 7A and 7B are available from the Raleigh Fish and Wildlife Office. See the ADDRESSES section of this final rule for contact information.

Comment 12: One commenter asked that his family property not be considered a part of the critical habitat area because the family's intent is to continue farming and provide the family's dependent children the opportunity to develop the property as desired.

Our Response: We carefully inspected updated aerial imagery of the proposed critical habitat area. We also conducted a site visit to the commenter's property to determine if the area in question provides the essential physical and biological features for Carex lutea. We determined that a small area along the edge of the commenter's property does contain the essential physical and biological features for Carex lutea and a small population occurs in the critical habitat area. We are not able to exclude areas that currently provide the essential physical and biological features for the species from critical habitat designation on the basis of anticipated future development, nor do such development plans form the basis for an exclusion from critical habitat under the provisions of the Act. The total amount of designated critical habitat in this subunit is 0.1 acre (ac) (0.04 hectare (ha)). The designation of critical habitat, in and of itself, has no legal effect on property rights or constitutes a physical or regulatory “taking” of real estate property. See the “Takings—Executive Order 12630” discussion below.

Comment 13: One commenter mentioned that Muhlenbergia expansa (cutover muhly) is the most abundant grass in relatively undisturbed, specific locations of Carex lutea.

Our Response: The Service agrees with this statement, and we incorporated this species in the habitat description in the Habitats Protected from Disturbance or Representative of the Historic, Geographical, and Ecological Distributions of the Species section.

Comment 14: One commenter noted that Shaken Creek Savanna is owned and managed by The Nature Conservancy (TNC) and that hunting rights are separately owned by private individuals and are tied to a hunt club.

Our Response: We made the appropriate clarification in the Final Critical Habitat Designation section.

Comment 15: One commenter noted that he is aware of populations of Carex lutea at subunits 7A and 7B, but that he is not aware of any Carex lutea population at subunit 7C.

Our Response: We contacted the species expert at North Carolina Natural Heritage Program and confirmed that Carex lutea and the necessary physical and biological features for this species do occur in subunit 7C. Therefore, we did not make any changes to this part of the critical habitat designation.

Comment 16: One commenter noted that subunit 8C appears to have many acres (hectares) of suitable habitat for Carex lutea and suggested that this subunit should be greatly expanded.

Our Response: We conducted a site visit to the property to determine if the area in question provides the essential physical and biological features for Carex lutea. Our findings concur with the commenter's suggestions. The actual extent of Carex lutea at this site was greater than we previously believed. Based on this new information, we expanded the critical habitat area to incorporate a larger area that contains the essential physical and biological features for Carex lutea. On August 3, 2010, we published in the Federal Register (75 FR 45592) our proposal to increase the area of subunit 8C, as well as the area of subunit 5D. The total amount of proposed critical habitat in subunit 8C increased by 8.2 ac (3.3 ha), from 1.6 ac (0.6 ha) in our March 10, 2010, proposed rule (75 FR 11080) to 9.8 ac (4.0 ha) in our August 3, 2010, revised proposed rule (75 FR 45592).

Comment 17: One commenter expressed concern over the potential negative impacts of listing the Maple Hill School Road Savanna (Unit 3) as critical habitat. He mentioned that the site consists of several small parcels owned by approximately 12 private individuals. He is concerned that the critical habitat designation may result in reactive actions by these landowners that may destroy good habitat and the small population that was known to occur there at the time of listing.

Our Response: The Service respects the commenter's opinions on this matter because of his extensive involvement with the protection of many of the conservation lands associated with Carex lutea. However, we are not able to exclude areas that currently provide the essential physical and biological features for the species from critical habitat designation on this basis. Further, when we published the proposed rule in March 2010, we contacted all of the property owners that might be affected by the designation. In our correspondence we included a letter that explained the proposed rule and provided a copy of the Federal Register notice along with information about how to provide public comments. We did not receive any public comments from any property owner in the vicinity of Unit 3.

We thoroughly evaluated all comments received on the proposed designation of critical habitat. As a result of the comments we received on the proposed rules, as well as additional field observations during the 2010 field season, we have made the following changes to our proposed designation.

• We adjusted the boundary of Unit 5, subunit D (Sandy Run Savannas), in Onslow County. We expanded the critical habitat area from 0.3 ac (0.1 ha) to 4.9 ac (2.0 ha), an increase of 4.6 ac (1.9 ha). Unit 5 is in conservation ownership by the NCDPR and managed as the Sandy Run Savannas State Natural Area. The proposed expansion of Unit 5, subunit D (Sandy Run Savannas), was described in our August 3, 2010, revised proposed rule (75 FR 45592).

• We adjusted the boundary of Unit 8, subunit C (McLean Savanna) in Pender County. We expanded the critical habitat area from 1.6 ac (0.6 ha) to 9.8 ac (4.0 ha), for an increase of 8.2 ac (3.3 ha). Subunit 8C is owned by TNC and a private company; however, TNC anticipates acquiring the privately owned section in the next 12 months and managing the entire site as a nature preserve. The proposed expansion of Unit 8, subunit C (McLean Savanna), was described in our August 3, 2010, revised proposed rule (75 FR 45592).

All of the additional areas included within the critical habitat boundaries contain all of the PCEs that were identified in the March 10, 2010, proposed rule (75 FR 11080) to designate critical habitat for Carex lutea. Because the areas where we increased the size of the critical habitat units are in current or impending conservation ownership, we determined that including these areas within the critical habitat designation will not impact any development, silviculture, or other activities of economic importance; therefore, this decision will not alter the economic analysis of the designation.

With the inclusion of these additional areas, the Service is designating 8 units (21 subunits) totaling approximately 201.8 ac (81.7 ha) in Onslow and Pender Counties, North Carolina, as critical habitat for Carex lutea.

We are finalizing the following critical habitat designation in accordance with section 4 of the Act.

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies insure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

To be included in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain the physical or biological features essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical and biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat), focusing on the principal biological or physical constituent elements (primary constituent elements) within an area that are essential to the conservation of the species (such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type). Primary constituent elements are the elements of physical and biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.

Under the Act, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only upon a determination that such areas are essential for the conservation of the species. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. When the best available scientific data do not demonstrate that the conservation needs of the species require such additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species. An area currently occupied by the species but that was not occupied at the time of listing may, however, be essential to the conservation of the species and may be included in the critical habitat designation.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. Climate change will be a particular challenge for biodiversity because the interaction of additional stressors associated with climate change and current stressors may push species beyond their ability to survive (Lovejoy 2005, pp. 325-326). The synergistic implications of climate change and habitat fragmentation are the most threatening facet of climate change for biodiversity (Hannah et al. 2005, p. 4). Current climate change predictions for terrestrial areas in the Northern Hemisphere indicate warmer air temperatures, more intense precipitation events, and increased summer continental drying (Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6; Intergovernmental Panel on Climate Change (IPCC) 2007, p. 1181). Climate change may lead to increased frequency and duration of severe storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015). According to the America's Longleaf Regional Working Group (2009, p. 19), the U.S. Department of Agriculture concluded that longleaf pine may extend its range northward, but will likely lose very little of its southern range. The Hadley Centre model suggests that savanna and grasslands may expand and replace southeastern pine forests at some sites in the coastal plain due to increased moisture stress (America's Longleaf Regional Working Group 2009, p. 19). While the effects of climate change on longleaf ecosystem plant communities have not been well studied, one report concluded that while longleaf pine might perform well with increased carbon dioxide, the herbaceous species may not compete as well (America's Longleaf Regional Working Group 2009, p. 19).

The information currently available on the effects of global climate change and increasing temperatures does not make sufficiently precise estimates of the location and magnitude of the effects. Nor are we currently aware of any climate change information specific to the habitat of Carex lutea that would indicate what areas may become important to the species in the future. Therefore, as explained in our March 10, 2010, proposed rule (75 FR 11080), we are unable to determine what additional areas, if any, may be appropriate to include in the final critical habitat for this species to address the effects of climate change.

We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied at the time of listing to designate as critical habitat, we consider the physical and biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derived the specific physical and biological features required for Carex lutea from studies of this species' habitat, ecology, and life history as described in the proposed rule to designate critical habitat published in the Federal Register on March 10, 2010 (75 FR 11080), the Background section of this final rule, and the information presented below. Additional information can also be found in the final listing rule published in the Federal Register on January 23, 2002 (67 FR 3120).

We have determined that Carex lutea requires the following physical and biological features.

Carex lutea is a caespitose, or clumping perennial. New shoots develop from a central point, forming a tufted clump of vegetation that is genetically identical to the parent plant. The full extent to which a plant can expand has not been determined.

Therefore, based on the information above, we identify bare soil areas immediately adjacent to existing clumps of mature Carex lutea plants to allow room for expansion of the clump to be a physical and biological feature required for this species.

Although the specific water needs of the species are unknown, Carex lutea is found in wet to saturated to periodically inundated soils. The largest populations are found in the wet to saturated ecotones of savannas and hardwood forests. At a few sites, the plants are most abundant in wet to saturated soils adjacent to drainage ditches, and in the saturated to inundated ditches themselves. The occurrence of individuals in ditches is likely due to the wetter soils of the ditches, or the washing of seeds into the ditches from adjacent habitat or both. It should be noted that seeds produced from populations located in ditches may be transported to unsuitable habitat during precipitation events.

Sometimes Carex lutea occurs in very wet soil in areas of savanna habitat characterized by an open to absent canopy, suggesting that its abundance in the savanna-wet hardwood ecotone is strongly influenced by hydrologic conditions as well as by edaphic (influenced by factors inherent in the soil rather than by climatic factors) or light conditions or both. The annual average precipitation in Wilmington, NC, (which is approximately 25 mi (40 km) south-southwest of the epicenter of Carex lutea ) is 54.3 inches (138 cm) ( http://www.weatherpages.com/variety/precip.html ).

Most Carex lutea plants occur in the partially tree-shaded ecotone between savannas and hardwood swamps, with scattered shrubs and a moderate to dense herb layer. The savanna/hardwood swamp ecotone is subject to frequent fires, which favor an herbaceous ground layer and suppress shrub dominance. There is evidence that increased shading and shrub competition from fire suppression has resulted in the reduction in the number of individuals observed.

Carex lutea occurs on a wide variety of mapped soil types, including fine sands (Mandarin and Pactolus), loamy sands (Stallings), loamy fine sands (Foreston and Grifton), fine sandy loams (Torhunta and Woodington), and loams (Muckalee). The soils are formed from marine sediments and have a range of permeability (from rapid to moderately rapid) and drainage class (from well drained to very poorly drained). Soil tests at the type site (The Neck Savanna) indicate that microsites not supporting Carex lutea regularly test at lower pH levels than those supporting Carex lutea, with values at inhabited sites ranging from a pH of 5.5 to 7.2, with a mean of 6.7 (Glover 1994, p. 7). This finding may indicate a preference to soils with a high base saturation or low aluminum saturation or both. The extent of the soils with these chemical characteristics is usually limited within the Coastal Plain and, therefore, is normally not mapped as separate soil map units due to the scale of mapping.

The outer southeastern coastal plain of North Carolina experiences hot and humid subtropical summers and cool temperate winters with subfreezing periods. Persistent snow accumulation is rare. The average crop growing season (daily minimum temperature higher than 32 degrees Fahrenheit (0 degrees Celsius)) for Onslow County is 162 days (Barnhill 1992, p. 99) and for Pender County is 185 days (Barnhill 1990, p. 105). We have no information about the tolerance of Carex lutea to temperature extremes.

In summary, based on the information above, we identify wet to completely saturated loamy fine sands, fine sands, fine sandy loams, and loamy sands soils with a pH of 5.5 to 7.2, in sunny to partially tree-shaded areas or ecotones between savannas and hardwood forests to be a physical and biological feature required for this species.

The reproductive biology of Carex lutea is unknown; however, due to the observation of ample mature seed production, we can confidently surmise that Carex lutea reproduces both sexually, involving gravity and wind-dispersed pollen, as well as vegetatively (LeBlond 1996, p. 19). Perigynia (a special bract that encloses the achene of a Carex species) are dispersed when they detach individually or a few at a time from the spikes, thereby depositing the fruits on the substrate adjacent to the maternal parent (LeBlond 1996, p. 19; LeBlond pers. comm. 2010). Seeds have been observed in ditches adjacent to colonies, indicating dispersal by precipitation sheet flow. Animals may also be seed dispersers; the perigynia beaks are minutely serrulate (minutely serrated), perhaps for attachment to fur (LeBlond 1996, p. 19). Survival rates of individual plants are unknown. Based on observation of the larger known populations, it appears that Carex lutea is a successful colonizer of suitable newly disturbed areas (LeBlond 1996, p. 19).

In summary, based on the information above, we identify areas of bare soil immediately adjacent (within 12 inches (30 cm)) to mature Carex lutea plants where seeds may fall and germinate to be a physical and biological feature required for this species.

The area supporting the Carex lutea populations is located in the Black River section of the Coastal Plain Province, and within the Northeast Cape Fear River watershed. The land surface is characterized by large areas of broad, level flatlands and shallow stream basins. The broad flatlands support longleaf pine forests, pond pine woodlands, shrub swamp pocosins, pine plantations, and cropland. The geology is characterized by unconsolidated sand overlying layers of clayey sand and weakly consolidated marine shell deposits (coquina limestone). These sediments were deposited and reshaped during several cycles of coastal emergence and submergence from the Cretaceous period to the present (LeBlond et al. 1994, p. 159).

More specifically, Carex lutea occurs in the Very Wet Clay Variant of the Pine Savanna community (Schafale 1994, p. 136) or its ecotones. Community structure is characterized by an open to sparse canopy dominated by pond pine ( Pinus serotina ), and usually with some longleaf pine ( Pinus palustris ) and pond cypress ( Taxodium ascendens ). The shrub layer typically is sparse to patchy, with wax myrtle ( Morella carolinensis ), ti-ti ( Cyrilla racemiflora ), ink berry ( Ilex glabra ), myrtle dahoon ( Ilex myrtifolia ), and black highbush blueberry ( Vaccinium fuscatum ) prominent. Juvenile red maple ( Acer rubrum var. trilobum ) and swamp tupelo ( Nyssa biflora ) are often present. The herb layer is dense, and dominated by combinations of toothache grass ( Ctenium aromaticum ), cutover muhly ( Muhlenbergia expansa ), Carolina dropseed ( Sporobolus pinetorum ), and several Rhynchospora taxa ( e.g., globe beaksedge ( R. globularis var. pinetorum ), sandswamp whitetop ( R. latifolia ), and Thorne's beakrush ( R. thornei )). National vegetation type classification places this natural community in the Pinus palustris—Pinus serotina/Sporobolus pinetorum—Ctenium aromaticum—Eriocaulon decangulare var. decangulare (Tenangle pipewort) Woodland association of the Pinus palustris—Pinus (P. elliottii, P. serotina) Saturated Woodland Alliance (NatureServe 2010). This association is equivalent to the Pine Savanna (Very Wet Clay Variant), a natural community type with fewer than 10 occurrences globally (Schafale 1994, p. 136). The Pine Savanna Very Wet Clay Variant is known only from the Maple Hill area near the Onslow/Pender County line and north and west of Holly Shelter Game Land, and from the Old Dock area of the Waccamaw River watershed along the Brunswick/Columbus County line.

In summary, based on the information above, we identify areas containing the natural plant community that would be identified as the Pine Savanna (Very Wet Clay Variant) according to methodology used in Schafale (1994, p. 136) to be essential for this species. The structure of this community is characterized by an open to sparse canopy dominated by pond pine, and usually with some longleaf pine and pond cypress.

Under the Act and its implementing regulations, we are required to identify the physical and biological features essential to the conservation of Carex lutea in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical and biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' vital life-history functions, are essential to the conservation of the species. Areas designated as critical habitat for Carex lutea contain only occupied areas within the species' historical geographic range, and contain the primary constituent element which supports the species' life-history functions.

Based on the above needs and our current knowledge of the life history, biology, and ecology of the species and the habitat requirements for sustaining the essential life-history functions of the species, we have determined that the single primary constituent element for Carex lutea is a Pine Savanna (Very Wet Clay Variant) natural plant community or ecotones that contain:

(1) Moist to completely saturated loamy fine sands, fine sands, fine sandy loams, and loamy sands soils with a pH of 5.5 to 7.2;

(2) Open to relatively open canopy that allows full to partial sunlight to penetrate to the herbaceous layer between savannas and hardwood forests; and

(3) Areas of bare soil immediately adjacent (within 12 inches (30 centimeters)) to mature Carex lutea plants where seeds may fall and germinate or existing plants may expand in size.

As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of this species. In accordance with the Act and its implementing regulations at 50 CFR 424.12(e), we considered whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing—are necessary to ensure the conservation of the species.

In order to determine which sites were occupied at the time of listing, we used the NCNHP database of rare species (NCNHP 2009). If an element occurrence (EO) record or site was first observed after the species was listed (effective on February 22, 2002), then we considered that those sites were unknown at the time of listing. Five subunits were first observed after February 22, 2002. However, given what we know about the biology of this species and the habitats where it occurs, those five subunits were likely occupied at the time the species was listed. The occurrence at Watkins Savannah (O'Berry Tract C) (Element Occurrence (EO) 5.19) was found during surveys for Carex lutea in 2006. The two sites on Ashes Creek at the Southwest Ridge Savanna (EO 11) were found during surveys for Carex lutea in 2002, just 3 months after the species was listed. In 2007, surveys for Carex lutea at the McLean Savanna yielded two new subpopulations of Carex lutea (EOs 24.22 and 24.23). Carex lutea was already known from a site nearby, and all three of these subpopulations are now considered to be part of one population. Subunits 5D and 8C were expanded after field work in 2010 indicated that the populations were larger than previously believed. To the best of our knowledge, these areas had not been surveyed for Carex lutea previously, and we have no reason to believe that the plant was imported or had dispersed into these areas from other areas after Carex lutea was listed in 2002. Based on the biology of this species and its limited ability for the seeds to move and colonize new areas, the occurrences identified since listing likely were in existence for many years prior to listing and were only recently detected due to increased awareness of this species.

We have also reviewed available information that pertains to the habitat requirements of this species including NCNHP data, the original species description (LeBlond et al. 1994, pp. 159-160), the status survey (LeBlond 1996, pp. 11-13), the Service's draft Recovery Plan and the 5-Year Review, regional Geographic Information System (GIS) coverages, survey reports, and other relevant information.

We identified critical habitat based on areas that are currently occupied by Carex lutea. These areas occur on rare or unique habitat (the Very Wet Clay Variant of the Pine Savanna community, remnant savannas, or ecotones thereof) within the species' range and contain all of the PCEs. Because so few populations are known to exist, they are all important to the long-term survival and recovery of the species. We are designating eight units (21 subunits) based on sufficient quantity and arrangement of the PCEs being present to support Carex lutea' s life processes.

When determining critical habitat boundaries, we made every effort to avoid including developed areas, such as lands covered by buildings, roads, and other structures, because such lands lack the physical and biological features for Carex lutea. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this rule have been excluded by text in the rule and are not designated. Therefore, if the critical habitat is finalized, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical and biological features in the adjacent critical habitat.

To the best of our knowledge, there are no areas that were not occupied by the species at the time it was listed that are essential to the conservation of Carex lutea. All of the areas designated as critical habitat for Carex lutea are currently occupied by the species and contain the essential physical and biological features. All of the areas designated as critical habitat are also within the known historical range of the species. Therefore, we are not designating any areas outside the geographical area occupied by the species at the time of listing. We believe that the occupied areas are sufficient for the conservation of the species.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection.

The major threats to the features in the areas identified as critical habitat for Carex lutea include: Habitat alteration; conversion of its limited habitat for residential, commercial, or industrial development; mining; drainage activities associated with silviculture and agriculture; suppression of fire; highway expansion; and herbicide use along utility and highway rights-of-way. Through our review of the existing data on Carex lutea, we conclude that these threats, which were also listed in the final listing rule (67 FR 3120, January 23, 2002), continue to impact this species and its essential physical and biological features.

The destruction of habitat or conversion of habitat for residential, commercial, or industrial development can change the topography, soils, and general character of the site, making it uninhabitable for Carex lutea. These activities can remove the primary constituent element by removing soil (by grading) and changing Carex lutea habitat to developed land, which is unsuitable for the species.

Drainage activities associated with silviculture and agriculture may alter the hydrology, which can change the groundwater levels and the amount of moisture in the soil, creating conditions under which Carex lutea may not be able to survive. Further, removal of existing vegetation or the planting of trees for silviculture may change the existing conditions such that Carex lutea plants no longer receive optimal amounts of sunlight.

The close proximity of roadways and power line corridors to populations of Carex lutea may affect the species. Herbicide treatment to maintain vegetation in rights-of-ways has the potential to kill non-target plant species such as Carex lutea. Highway expansion may change the local topography and affect water runoff making the site drier or wetter than is optimal for Carex lutea.

Mining has been documented in close proximity to one Carex lutea population. Mining activities may alter many aspects of Carex lutea habitat. Heavy equipment can compact or remove the appropriate soils. The grading of areas adjacent to Carex lutea habitat can change the hydrology of those areas and make them more susceptible to invasion by nonnative plant species.

Regular fire in areas where Carex lutea occurs helps to maintain the open savanna habitat that is conducive to Carex lutea growth. Fire reduces competition and allows seeds to germinate in open, bare soil areas. Fire suppression in areas where Carex lutea occurs may result in the growth of shrubs and trees that will eventually shade out herbaceous species such as Carex lutea. Fire suppression also allows the invasion of nonindigenous plants and animals that are not fire-adapted.

All of these activities may in turn lead to the disruption of the growth and reproduction of Carex lutea.

In summary, we find that the areas we are designating as critical habitat contain the features essential to the conservation of Carex lutea, and that these features may require special management considerations or protection. Special management considerations or protection may be required to eliminate, or reduce to negligible level, the threats affecting each unit or subunit and to preserve and maintain the essential features that the critical habitat units and subunits provide to Carex lutea. Additional discussions of threats facing individual sites are provided in the individual unit and subunit descriptions.

We are designating 8 units (21 subunits) totaling approximately 202 ac (82 ha) as critical habitat for Carex lutea. They constitute our current best assessment of areas that meet the definition of critical habitat for Carex lutea. The eight areas designated as critical habitat, which are described below, are: (1) Unit 1: Watkins Savanna, (2) Unit 2: Haws Run Mitigation Site, (3) Unit 3: Maple Hill School Road Savanna, (4) Unit 4: Southwest Ridge Savanna, (5) Unit 5: Sandy Run Savannas, (6) Unit 6: The Neck Savanna, (7) Unit 7: Shaken Creek Savanna, and (8) Unit 8: McLean Savanna. All units were occupied at the time of listing and are currently occupied.

The name, ownership information, and approximate size of each designated critical habitat unit and subunit are shown in Table 2. As described above, we assessed all areas we are designating as critical habitat to ensure that they provide the requisite primary constituent element as defined in this final rule.

We present brief descriptions of each unit and reasons why they meet the definition of critical habitat below.

Unit 1 consists of 3.8 ac (1.5 ha) and includes three subunits in Pender County, NC. This critical habitat unit includes habitat for Carex lutea that is under private and State ownership. This unit contains three element occurrences, two of which were known at the time of listing. All three subunits contain the primary constituent element identified for Carex lutea; however, they are all very fire-suppressed and have been altered by timber management. The NCDPR is currently negotiating with the NCNHP to designate this site as a Dedicated Nature Preserve.

Subunit A (EO 5.12) consists of 1.2 ac (0.5 ha) and was known to be occupied at the time of listing. It is owned by NCDPR and is managed as part of the Sandy Run Savannas State Natural Area.

Subunit B (EO 5.13) consists of 2.0 ac (0.8 ha) and was known to be occupied at the time of listing. It is owned by private entities and NCDPR. NCDPR plans to manage their portion of the subunit as part of the Sandy Run Savannas State Natural Area.

Subunit C (EO 5.19) consists of 0.6 ac (0.2 ha) and was not known to be occupied at the time of listing. This Carex lutea site was discovered in 2006; however, based on the habitat conditions at this site and the biology of the species, we believe that this site was occupied in 2002, when the species was listed. It is in conservation ownership by NCDPR and is managed as part of the Sandy Run Savannas State Natural Area.

Unit 2 (EO 7) consists of 27.1 ac (11.0 ha) in Onslow County, NC. This critical habitat unit includes habitat for Carex lutea and was occupied at the time of listing. It is owned by the NC Department of Transportation and is managed by the NC Ecosystem Enhancement Program. This site was purchased as mitigation for wetland impacts from nearby transportation projects. Although the site is somewhat fire-suppressed and has been altered by timber management, it contains the primary constituent element identified for Carex lutea. The land managers conducted a prescribed fire in the vicinity of the Carex lutea plants during the summer of 2009 and will continue restoration efforts there. The population at this site appears to be stable and not vulnerable to extirpation. Managers are considering designating this site as a Dedicated Nature Preserve by the NCNHP.

Unit 3 (EO 10) consists of 27.7 ac (11.2 ha) in Pender County, NC. This site is privately owned and has not been revisited since it was discovered in 1998. It was occupied at the time of listing. Although three clumps of Carex lutea were discovered here in 1998, the full extent of the population is unknown and the habitat is vulnerable to land use changes. This site contains the primary constituent element identified for Carex lutea.

Unit 4 (EO 11) consists of 3.3 ac (1.3 ha) in two subunits in Pender County, NC. This unit is owned by NC Wildlife Resources Commission and is managed for conservation purposes. These two subpopulations were discovered in May 2002, shortly after the species was listed as endangered (effective February 22, 2002). Because the species is nearly impossible to identify unless it is flowering, and plants less than 3 months old would not be expected to flower in May, it seems reasonable to assume that the plants discovered in May 2002 were present prior to the 2002 growing season and that the site was occupied at the time of listing. The Carex lutea plants occur in a power line right-of-way easement that is managed by Progress Energy. The utility company entered into a Registry Agreement with the NCNHP and agreed not to use herbicides or mow during critical Carex lutea growth periods. This population is relatively small in size compared to some of the other populations, but appears to be stable. The subunits contain the primary constituent element identified for Carex lutea.

Subunit A is 2.3 ac (0.9 ha) in size and is located southwest of Ashes Creek.

Subunit B is 1.0 ac (0.4 ha) in size and is located northeast of Ashes Creek.

Unit 5 consists of 25.2 ac (10.2 ha) in Onslow County, NC, and is divided into five subunits. This critical habitat unit is owned by NCDPR and managed as part of the Sandy Run Savannas State Natural Area. All five Carex lutea sites were known at the time of listing. This unit is a remnant pine savanna, and the subunits contain the primary constituent element identified for Carex lutea; however, the subunits are all fire-suppressed and have been altered by timber management, including bedding and ditching. The NCDPR is currently negotiating the designation of a Dedicated Nature Preserve with the NCNHP.

Subunit A (EO 15.3) consists of 2.6 ac (1.1 ha) and occurs on the east side of NC 50. Progress Energy has a transmission line right-of-way through this subunit and has entered into a Registry Agreement with the NCNHP in which they have agreed not to use herbicides or mow during critical Carex lutea growth periods.

Subunit B (EO 15.4) consists of 4.3 ac (1.7 ha) and occurs contiguous to and along the north side of a private sand road through the property.

Subunit C (EO 15.4) consists of 0.3 ac (0.1 ha) and occurs along the south side of a private sand road through the property and on the west side of a small stream swamp. The plants are growing in an old, wet road bed.

Subunit D (EO 15.4) consists of 4.9 ac (2.0 ha) and occurs along the south and north sides of a private sand road through the property and on the east side of a small stream swamp. The Carex lutea plants are growing in a roadside ditch and along a fire break and in associated low, moist areas. The private sand road is not considered part of this critical habitat designation.

Subunit E (EO 15.14) consists of 13.1 ac (5.3 ha) and occurs contiguous to and on the west side of NC 50. Progress Energy has a transmission line right-of-way through this subunit and has entered into a Registry Agreement with the NCNHP in which they have agreed not to use herbicides or mow during critical Carex lutea growth periods.

Unit 6 consists of 4.4 ac (1.8 ha) in Pender County, NC, and is divided into three subunits. This critical habitat unit includes habitat for Carex lutea that is under private and State ownership. This unit contains three element occurrences, two of which were known at the time of listing. The subunits contain the primary constituent element identified for Carex lutea; however, they are all very fire-suppressed and have been altered by timber management. The NCDPR is currently negotiating the designation of a Dedicated Nature Preserve with the NCNHP. Privately owned portions of this property are threatened by fire suppression, timber harvesting, and herbicide use. Drainage ditches impact the hydrology of the soils in this area.

Subunit A (EO 18.1) consists of 3.6 ac (1.5 ha), is the type locality for Carex lutea, and was known to be occupied at the time of listing. It is owned by NCDPR and will become part of the Sandy Run Savannas State Natural Area.

Subunit B (EO 18.16) consists of 0.7 ac (0.3 ha) and is privately owned. It is currently threatened by fire suppression, but the managers are hopeful that they will be able to burn this tract within the next year or two.

Subunit C (EO 18.17) consists of 0.1 ac (0.04 ha), is privately owned, and occurs in a small power-line corridor along a roadside. It is vulnerable to woody growth and herbicide use in the power line. There has been little management of the site with prescribed fire due to difficult land ownership patterns.

Unit 7 consists of 57.7 ac (23.4 ha) in Pender County, NC, and is divided into three subunits. This critical habitat unit includes habitat for Carex lutea that is under private ownership. This area is owned and managed by TNC. The hunting rights are separately owned by private individuals and are tied to a hunt club. This unit contains three element occurrences, all of which were known at the time of listing. This savanna complex contains the highest quality natural habitat and the largest population of Carex lutea known. With continued fire management, this site should remain stable. The subunits all contain the primary constituent element identified for Carex lutea.

Subunit A (EO 21.8) consists of 6.9 ac (2.8 ha) immediately south of Flo Road and east of Alligator Lake Road.

Subunit B (EO 21.8) consists of 24.7 ac (10.0 ha) immediately south of Flo Road and west of Alligator Lake Road.

Subunit C (EO 21.20) consists of 26.1 ac (10.6 ha) immediately south of Flo Road and approximately 1,800 feet (549 meters) west of Alligator Lake Road.

Unit 8 consists of 52.6 ac (21.3 ha) and includes three subunits in Pender County, NC. This site is known as McLean Savanna or McLean Family Farms and has been kept open for hunting through the use of prescribed burning. Carex lutea occurs over an extensive area, and it is one of the larger populations known. Each of the three subunits contains the primary constituent element identified for Carex lutea.

Subunit A (EO 24.9) is 42.3 ac (17.1 ha) in size and is owned by TNC. Carex lutea occupied this area at the time of listing.

Subunit B (EO 24.22) is 0.5 ac (0.2 ha) in size and is privately owned. This Carex lutea population was discovered in June 2007, after the species was listed; however, based on what we know about the biology of the species, we believe that this site was occupied at the time of listing.

Subunit C (EO 24.23) is 9.8 ac (4.0 ha) in size and is owned by both private entities and TNC. This Carex lutea population was also discovered in June 2007, after the species was listed. In 2010, we discovered that the extent of the population was much greater than we originally thought. Based on what we know about the biology of the species, we believe that this site was occupied at the time of listing.

Because the savannas on the McLean Family Farms have been managed by fire for many years to facilitate hunting, and one subpopulation (Subunit A) has been known on this property since 1997, it is reasonable to believe that these other subpopulations (Subunits B and C) have also occurred there for many years and were just undetected because those areas had not been surveyed specifically for Carex lutea until 2007.

The Service believes that all critical habitat units and subunits are currently occupied by Carex lutea. In addition, based on our knowledge of the species and our best professional judgment, we believe that these critical habitat units and subunits were occupied at the time the species was listed.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to insure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the Courts of Appeals for the Fifth and Ninth Circuits have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve its intended conservation role for the species.

If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to insure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect, but are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to result in jeopardy to a listed species or the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable, to avoid these outcomes. We define “reasonable and prudent alternatives” at 50 CFR 402.02 as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where a new species is listed or critical habitat is subsequently designated that may be affected and the Federal agency has retained discretionary involvement or control over the action (such discretionary involvement or control over the action is authorized by law). Consequently, Federal agencies may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

Federal activities that may affect Carex lutea or its designated critical habitat require section 7 consultation under the Act. Activities on State, Tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from us under section 10 of the Act) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) are subject to the section 7(a)(2) consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or permitted do not require section 7 consultations.

In making the adverse modification determination, the key factor is whether, with implementation of the Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical and biological features to an extent that appreciably reduces the conservation value of critical habitat for Carex lutea. As discussed above, the role of critical habitat units is to support life-history needs of the species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for Carex lutea. These activities include, but are not limited to:

(1) Actions that would result in ground disturbance to sunny to partially tree-shaded areas or ecotones between savannas and hardwood forests. Such activities could include, but are not limited to: Residential, commercial, or recreational development; ORV activity; dispersed recreation; silviculture practices (including timber harvest); new road construction or widening; existing road and utility maintenance; and mining. These activities could cause direct loss of Carex lutea occupied areas, and affect ecotones by damaging or eliminating habitat, altering soil composition due to increased erosion, and increasing densities of nonnative plant species.

In addition, changes in soil composition may lead to changes in the vegetation composition, such as growth of shrub cover resulting in decreased density or vigor of individual Carex lutea plants. These activities may also lead to changes in water flows and inundation periods that would degrade, reduce, or eliminate the habitat necessary for the growth and reproduction of Carex lutea.

(2) Actions that would significantly alter the hydrological regime of sunny to partially tree-shaded areas or ecotones between savannas and hardwood forests. Such activities could include residential or recreational development adjacent to savanna and hardwood forest ecotones, timber harvest and other silviculture practices, ORV activity, dispersed recreation, new road construction or widening, existing road and utility line maintenance, and mining. These activities could alter surface soil layers and hydrological regimes in a manner that promotes loss of soil matrix components and moisture necessary to support the growth and reproduction of Carex lutea.

(3) Actions that would significantly reduce pollination or seed set (reproduction). Such activities could include, but are not limited to, residential or recreational development, and mowing or herbiciding prior to seed set. These activities could prevent reproduction by reducing the numbers of pollinators, or by removal or destruction of reproductive plant parts.

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base.

The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”

There were no Department of Defense lands with a completed INRMP within our proposed critical habitat designation. Therefore, we are not exempting any lands from this final designation of critical habitat for Carex lutea under section 4(a)(3)(B)(i) of the Act.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

Under section 4(b)(2) of the Act, the Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If based on this analysis, we make this determination, then the Secretary can exert his discretion to exclude the area only if such exclusion would not result in the extinction of the species.

Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis (DEA), which we made available for public review on August 3, 2010 (75 FR 45592), based on the March 10, 2010, proposed rule (75 FR 11080). We opened a comment period on the DEA until September 2, 2010; however, we received no comments on the DEA. Following the close of the comment period, a final analysis of the potential economic effects of the designation was developed, taking into consideration any new information.

The intent of the final economic analysis (FEA) is to quantify the economic impacts of all potential conservation efforts for Carex lutea. Some of these costs will likely be incurred regardless of whether we designate critical habitat (baseline). The economic impact of the final critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species ( e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed (2002), and forecasts both baseline and incremental impacts likely to occur with the designation of critical habitat.

The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decision-makers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA looks retrospectively at costs that were incurred since January 23, 2002, when we listed Carex lutea under the Act (67 FR 3120) and considers those costs that may occur in the 20 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20-year timeframe. The FEA did not identify any economic impacts of Carex lutea conservation efforts associated with development activities.

The FEA estimates that no economic impacts are likely to result from the designation of critical habitat for Carex lutea. This determination is based primarily on the fact that more than 80 percent of the lands we are designating as critical habitat is already subject to conservation measures that benefit the plant. Economic impacts are unlikely in the remaining 20 percent, given the limited potential for future economic activity and the low probability of a Federal nexus that would require consultation with the Service.

Consequently, the Secretary has determined not to exercise his discretion to exclude any areas from this designation of critical habitat for Carex lutea based on economic impacts. A copy of the FEA with supporting documents may be obtained by contacting the Raleigh Fish and Wildlife Office ( see ADDRESSES ) or for downloading from the Internet at http://www.regulations.gov.

Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. In preparing this rule, we have determined that the lands within the designation of critical habitat for Carex lutea are not owned or managed by the Department of Defense, and therefore, there are no impacts to national security. Consequently, the Secretary has determined not to exercise his discretion to exclude any areas from this designation based on impacts on national security.

Under section 4(b)(2) of the Act, in addition to economic impacts and impacts on national security, we consider any other relevant impacts. In determining what other impacts may be relevant, we consider a number of factors including whether the landowners have developed any habitat conservation plans (HCPs) or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any Tribal issues, and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.

In preparing this rule, we have determined that there are currently no HCPs or other management plans for Carex lutea. Additionally, the designation does not include any Tribal lands or trust resources. We anticipate no impact to Tribal lands, partnerships, or HCPs or other management plans from this critical habitat designation. Consequently, the Secretary has determined not to exercise his discretion to exclude any areas from this designation based on other relevant impacts.

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

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

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

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

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. In this final rule, we are certifying that the critical habitat designation for Carex lutea will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if the critical habitat designation for Carex lutea could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities, such as residential and commercial development. We apply the “substantial number” test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement.

Designation of critical habitat only affects activities authorized, funded, or carried out by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect Carex lutea. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities ( see Application of the “Adverse Modification” Standard section).

In our FEA of the critical habitat designation, we evaluated the potential economic effects on small entities resulting from conservation actions related to the designation of critical habitat for Carex lutea. The analysis is based on the estimated impacts associated with the rulemaking as described in Chapters 4 through 6 of the FEA, and evaluated the potential for economic impacts related to development and silvicultural activities. The economic analysis additionally considered the potential economic impacts of the designation on transportation and utilities projects, but concluded that these activities were not likely to incur measurable economic impacts.

As discussed in Chapter 4 and Appendix A, the FEA did not identify any incremental costs resulting from the critical habitat designation. This determination is based on the fact that more than 80 percent of the critical habitat we are designating in this rule is already subject to conservation measures that benefit the plant. Economic impacts are unlikely in the remaining 20 percent, given the limited potential for future economic activity and the low probability of a Federal nexus that would require consultation with the Service. Therefore, based on this analysis, we do not expect this regulation to have a significant impact on any small businesses.

In summary, we considered whether this designation will result in a significant economic impact on a substantial number of small entities, and we determined that we do not expect this regulation to have a significant impact on any small entities. Therefore, we are certifying that the designation of critical habitat for Carex lutea will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action under consideration. As discussed in Appendix A, the FEA finds that none of these criteria are relevant to this analysis. The economic analysis concludes that because no modifications are anticipated to result from the designation of critical habitat, energy-related impacts are not expected. Because no incremental impacts associated specifically with this rulemaking on the production, distribution, or use of energy are forecast, designation of critical habitat for Carex lutea is not expected to lead to any adverse outcomes (such as a reduction in electricity production or an increase in the cost of energy production or distribution). A Statement of Energy Effects is not required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following findings:

(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not jeopardize the continued existence of the species, or destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) As discussed in the FEA of the designation of critical habitat for Carex lutea, we do not believe that this rule will significantly or uniquely affect small governments because it will not produce a federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The lands we are designating as critical habitat are owned by private individuals, The Nature Conservancy, and the State of North Carolina (Division of Parks and Recreation, Department of Transportation and Wildlife Resources Commission). None of these government entities fit the definition of “small governmental jurisdiction.” The economic analysis also identified no cost resulting from the critical habitat designation. Because no incremental costs are anticipated, no small entities are expected to be affected by the rule. Therefore, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for Carex lutea in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this designation of critical habitat for Carex lutea does not pose significant takings implications for lands within or affected by the designation.

In accordance with E.O. 13132 (Federalism), this rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this critical habitat designation with, appropriate State resource agencies in North Carolina. The designation of critical habitat for Carex lutea will impose no additional restrictions to those currently in place and, therefore, will have little incremental impact on State and local governments and their activities. The designation of critical habitat may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the essential features themselves are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur).

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act will be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. This final rule uses standard property descriptions and identifies the physical and biological features essential to the conservation of Carex lutea within the designated areas to assist the public in understanding the habitat needs of the species.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act,” we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.

We have determined that there are no tribal lands occupied at the time of listing that contain the features essential for the conservation, and no tribal lands that are essential for the conservation, of Carex lutea. Therefore, we are not designating critical habitat for Carex lutea on tribal lands.

A complete list of references cited in this rulemaking is available upon request from the Field Supervisor, Raleigh Fish and Wildlife Office ( see ADDRESSES ) or from http://www.regulations.gov.

The primary authors of this package are the staff members of the Raleigh Fish and Wildlife Office.

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

NMFS manages the GOA groundfish fisheries in the exclusive economic zone (EEZ) of the GOA under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The Council prepared the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600, 679, and 680.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs, halibut prohibited species catch (PSC) amounts, and seasonal allowances of pollock and inshore/offshore Pacific cod. Upon consideration of public comment received under § 679.20(c)(1), NMFS must publish notice of final harvest specifications for up to two fishing years as annual target TAC, per § 679.20(c)(3)(ii). The final harvest specifications set forth in Tables 1 through 25 of this document reflect the outcome of this process, as required at § 679.20(c).

The proposed 2011 and 2012 harvest specifications for groundfish of the GOA and Pacific halibut PSC allowances were published in the Federal Register on December 8, 2010 (75 FR 76352). Comments were invited and accepted through January 7, 2011. NMFS did not receive any comments on the proposed harvest specifications. In December 2010, NMFS consulted with the Council regarding the 2011 and 2012 harvest specifications. After considering public testimony, as well as biological and economic data that were available at the Council's December 2010 meeting, NMFS is implementing the final 2011 and 2012 harvest specifications, as recommended by the Council. For 2011, the sum of the TAC amounts is 318,288 mt. For 2012, the sum of the TAC amounts is 335,078 mt.

In December 2010, the Council, its Advisory Panel (AP), and its Scientific and Statistical Committee (SSC), reviewed current biological and harvest information about the condition of groundfish stocks in the GOA. This information was compiled by the Council's GOA Plan Team and was presented in the draft 2010 SAFE report for the GOA groundfish fisheries, dated November 2010 ( see ADDRESSES ). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the GOA ecosystem and the economic condition of the groundfish fisheries off Alaska. From these data and analyses, the Plan Team estimates an overfishing level (OFL) and ABC for each species or species group. The 2010 SAFE report was made available for public review upon notification of the proposed harvest specifications.

In previous years the largest changes from the proposed to the final harvest specifications have been based on the most recent NMFS stock surveys, which provide updated estimates of stock biomass and spatial distribution, and changes to the models used for making stock assessments. NMFS scientists presented updated and new survey results, changes to assessment models, and accompanying stock estimates at the November Plan Team meeting, and the SSC reviewed this information at the December 2010 Council meeting. In November 2010, the Plan Team considered updated stock assessments for pollock, Pacific cod, sablefish, sharks, squids, sculpins, and octopuses that are included in the final 2010 SAFE report. For the other groundfish stocks without recent surveys or other new scientific information, the final 2010 SAFE report updates the final 2009 SAFE assessments to include any other available, recent information, such as 2010 catch information, which does not result in significant changes from the proposed 2011 and 2012 harvest specifications. Changes from the proposed to the final harvest specifications in 2011 for newly assessed groundfish stocks are discussed below. New stock surveys and assessments are scheduled for 2011 and will be considered at the Plan Team and Council meetings in 2011 for the 2012 and 2013 groundfish fisheries.

The final ABCs and TACs are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass. The FMP specifies the formulas, or tiers, to be used to compute ABCs and OFLs. The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to fisheries scientists. This information is categorized into a successive series of six tiers to define OFL and ABC amounts, with tier one representing the highest level of information quality available and tier six representing the lowest level of information quality available.

The SSC adopted the final 2011 and 2012 OFLs and ABCs recommended by the Plan Team for all groundfish species, with the exception of sharks. The Plan Team's ABC recommendation for the shark species group was based on a 0.04 fishing mortality rate. However, the SSC preferred an ABC based on the tier 5 ABC calculation for spiny dogfish (where the ABC equals 75 percent of the OFL) and a tier 6 calculation for other sharks in the group. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations. The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the sum of all TACs within the required OY range of 116,000 to 800,000 mt.

The Council recommended TACs for 2011 and 2012 that are equal to ABCs for pollock, deep-water flatfish, rex sole, sablefish, Pacific ocean perch, shortraker rockfish, rougheye rockfish, northern rockfish, pelagic shelf rockfish, thornyhead rockfish, demersal shelf rockfish, big skate, longnose skate, other skates, squids, sharks, octopuses, and sculpins. The Council recommended TACs for 2011 and 2012 that are less than the ABCs for Pacific cod, flathead sole, shallow-water flatfish, arrowtooth flounder, other rockfish, and Atka mackerel. The Pacific cod TACs are set to accommodate the State of Alaska's (State's) guideline harvest levels (GHLs) for Pacific cod so that the ABC is not exceeded. The flathead sole, shallow-water flatfish, and arrowtooth flounder TACs are set to conserve the halibut PSC limit for use in other fisheries. The other rockfish TAC is set to reduce the amount of discards in the Southeast Outside (SEO) District. The Atka mackerel TAC is set to accommodate incidental catch amounts in other fisheries.

The 2011 and 2012 harvest specifications approved by the Secretary of Commerce (Secretary) are unchanged from those recommended by the Council and are consistent with the preferred harvest strategy alternative in the EIS ( see ADDRESSES ). NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the biological condition of the groundfish stocks as described in the final 2010 SAFE report. NMFS also finds that the Council's recommendations for OFLs, ABCs, and TACs are consistent with the biological condition of groundfish stocks as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the OY range. NMFS reviewed the Council's recommended TAC specifications and apportionments and approves these harvest specifications under 50 CFR 679.20(c)(3)(ii). The apportionment of TAC amounts among gear types, processing sectors, and seasons is discussed below.

Tables 1 and 2 list the final 2011 and 2012 OFLs, ABCs, TACs, and area apportionments of groundfish in the GOA. The sums of the 2011 and 2012 ABCs are 590,121 mt and 603,990 mt, respectively, which are higher in 2011 and 2012 than the 2010 ABC sum of 565,499 mt (75 FR 11749, March 12, 2010).

The ABC for the pollock stock in the combined Western, Central, and West Yakutat Regulatory Areas (W/C/WYK) has been adjusted to reflect the GHL established by the State for the Prince William Sound (PWS) pollock fishery since its inception in 1995. Genetic studies have led fisheries scientists to believe that the pollock in PWS is not a separate stock from the combined W/C/WYK population. Accordingly, the Council recommended decreasing the W/C/WYK pollock ABC to account for the State's PWS GHL. For 2011 and 2012, the PWS GHL for pollock is 1,650 mt.

The apportionment of annual pollock TAC among the Western and Central Regulatory Areas of the GOA reflects the seasonal biomass distribution and is discussed in greater detail below. The annual pollock TAC in the Western and Central Regulatory Areas of the GOA is apportioned among Statistical Areas 610, 620, and 630, as well as equally among each of the following four seasons: the A season (January 20 through March 10), the B season (March 10 through May 31), the C season (August 25 through October 1), and the D season (October 1 through November 1) (50 CFR 679.23(d)(2)(i) through (iv), and 679.20(a)(5)(iv)(A) through (B)).

As in 2010, the SSC and Council recommended that the method of apportioning the sablefish ABC among management areas in 2011 and 2012 include commercial fishery and survey data. NMFS stock assessment scientists believe the use of unbiased commercial fishery data reflecting catch-per-unit-effort provides rational input for stock distribution assessments. NMFS evaluates annually the use of commercial fishery data to ensure unbiased information is included in stock distribution models. The Council's recommendation for sablefish area apportionments also takes into account the prohibition on the use of trawl gear in the SEO District of the Eastern Regulatory Area and makes available five percent of the combined Eastern Regulatory Area ABCs to trawl gear for use as incidental catch in other directed groundfish fisheries in the WYK District (§ 679.20(a)(4)(i)).

The AP, SSC, and Council recommended apportionment of the ABC for Pacific cod in the GOA among regulatory areas based on the three most recent NMFS summer trawl surveys. The 2011 and 2012 Pacific cod TACs are affected by the State's fishery for Pacific cod in State waters in the Central and Western Regulatory Areas, as well as in PWS. The Plan Team, SSC, AP, and Council recommended that the sum of all State and Federal water Pacific cod removals from the GOA not exceed ABC recommendations. Accordingly, the Council recommended reducing the 2011 and 2012 Pacific cod TACs from the ABCs in the Eastern, Central and Western Regulatory Areas to account for State GHLs. Therefore, the 2011 Pacific cod TACs are less than the ABCs by the following amounts: (1) Eastern GOA, 651 mt; (2) Central GOA, 13,454 mt; and (3) Western GOA, 7,595 mt. The 2012 Pacific cod TACs are less than the ABCs by the following amounts: (1) Eastern GOA, 587 mt; (2) Central GOA, 12,121 mt; and (3) Western GOA, 6,842 mt. These amounts reflect the sum of the State's 2011 and 2012 GHLs in these areas, which are 25 percent of the Eastern, Central, and Western GOA ABCs, respectively. The percentage of the ABC used to calculate the 2011 and 2012 GHL for the State-managed Pacific cod fishery in PWS fisheries has been increased to 25 percent of the Eastern GOA ABC in 2011 and 2012, an increase from 15 percent in 2010.

NMFS establishes seasonal apportionments of the annual Pacific cod TAC in the Western and Central Regulatory Areas. Sixty percent of the annual TAC is apportioned to the A season for hook-and-line, pot, and jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10. Forty percent of the annual TAC is apportioned to the B season for hook-and-line, pot, and jig gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§§ 679.23(d)(3) and 679.20(a)(12)).

For 2011 and 2012, NMFS establishes an A season directed fishing allowance (DFA) for the Pacific cod fisheries in the GOA based on the management area TACs minus the recent, average A season incidental catch of Pacific cod in each management area before June 10 (§ 679.20(d)(1)). The DFA and incidental catch before June 10 will be managed such that total harvest in the A season will be no more than 60 percent of the annual TAC. Incidental catch taken after June 10 will continue to accrue against the B season TAC. This action meets the intent of the Steller sea lion protection measures by achieving temporal dispersion of the Pacific cod removals and by reducing the likelihood of harvest exceeding 60 percent of the annual TAC in the A season.

NMFS published a final rule to implement Amendment 87 to the FMP on October 6, 2010 (75 FR 61639), effective November 5, 2010. Amendment 87 moved squids, sharks, octopuses, and sculpins from the “other species” category to the “target species” category in the GOA and eliminated the “other species” category in the GOA FMP. Amendment 87 revised the FMP to meet the National Standard 1 guidelines for annual catch limits and accountability measures and requires that OFLs, ABCs, and TACs be established for squids, sharks, octopuses, and sculpins as part of the annual groundfish harvest specifications process. Based on the 2010 final SAFE report, NMFS is establishing ABCs, TACs, and OFLs for squids, sharks, octopuses, and sculpins for 2011 and 2012 ( see Tables 1 and 2).

In October 2008, the Council adopted Amendment 34 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs. Amendment 34 would amend the Bering Sea and Aleutian Islands Crab Rationalization Program (Crab Rationalization Program) to exempt additional fishery participants from harvest limits, called sideboards, which apply to some vessels and license limitation program (LLP) licenses that are used to participate in GOA Pacific cod and pollock fisheries. These particular sideboards are discussed under the subsequent section titled “Non-AFA Crab Vessel Groundfish Harvest Limitations.” Tables 17 and 18 specify the 2011 and 2012 sideboard amounts. If the Secretary approves Amendment 34, NMFS would revise the sideboard amounts specified in Tables 17 and 18. Pending completion of applicable rulemaking, these revisions could be effective as soon as the latter half of 2011.

In October 2010, the Council's recommendations for the proposed 2011 and 2012 harvest specifications (75 FR 76352, December 8, 2010) were based largely upon information contained in the final 2009 SAFE report for the GOA groundfish fisheries, dated November 2009 ( see ADDRESSES ). The Council proposed that the OFLs, ABCs, and TACs established for the 2011 groundfish fisheries (75 FR 11749, March 12, 2010) be rolled over to 2011 and 2012, pending completion and review of the 2010 SAFE report at its December 2010 meeting.

As described previously, the SSC adopted the final 2011 and 2012 OFLs and ABCs recommended by the Plan Team, with the exception of sharks. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations for 2011 and 2012. The final 2011 ABCs are higher than the 2011 ABCs published in the proposed 2011 and 2012 harvest specifications (75 FR 76352, December 8, 2010) for sablefish, arrowtooth flounder, northern rockfish, other rockfish, pelagic shelf rockfish, demersal shelf rockfish, squids, sharks, octopuses, and sculpins. Separate ABCs for squid, sharks, octopuses, and sculpins are being established for the first time in 2011 and 2012. These four species were formerly grouped under the “other species” category, with an aggregate OFL, ABC, and TAC. The final 2011 ABCs are lower than the proposed 2011 ABCs for pollock, Pacific cod, deepwater flatfish, rex sole, flathead sole, and rougheye rockfish. The final 2012 ABCs are higher than the proposed 2012 ABCs for pollock, sablefish, deepwater flatfish, flathead sole, other rockfish, demersal shelf rockfish, squids, sharks, octopuses, and sculpins. In contrast, the final 2012 ABCs are lower than the proposed 2012 ABCs for Pacific cod, rex sole, arrowtooth flounder, Pacific ocean perch, northern rockfish, pelagic shelf rockfish, and rougheye rockfish. For the remaining target species, the Council recommended, and the Secretary approved, final 2011 and 2012 ABC levels that are the same as the proposed 2011 and 2012 ABC levels.

Additional information explaining the changes between the proposed and final ABCs is included in the final 2010 SAFE report, which was not available when the Council made its proposed ABC and TAC recommendations in October 2010. At that time, the most recent stock assessment information was contained in the final 2009 SAFE report. The final 2010 SAFE report contains the best and most recent scientific information on the condition of the groundfish stocks, as previously discussed in this preamble. This document currently is available from the Council ( see ADDRESSES ). The Council considered the final 2010 SAFE report in December 2010 when it made recommendations for the final 2011 and 2012 harvest specifications, including recommendations for 2011 and 2012 TAC limits. The Council's final 2011 and 2012 TAC recommendations increase fishing opportunities for species for which the Council had sufficient information to raise TAC levels. Conversely, the Council reduced TAC levels to provide greater protection for some species. In the GOA, the total final 2011 TAC amount is 318,288 mt, a decrease of four percent from the total proposed 2011 TAC limit of 330,746 mt. The total final 2012 TAC amount is 335,078 mt, an increase of one percent from the total proposed 2011 TAC limit of 330,746 mt. For the species and species groups for which a new assessment was prepared, the greatest TAC increases were for sablefish, sharks, octopuses, and sculpins, while the greatest decreases were for pollock and Pacific cod. These TAC changes corresponded to associated changes in the ABC levels, as recommended by the SSC.

The largest 2011 decreases in TAC occurred for pollock and Pacific cod. Pollock decreased from the proposed limit 109,105 mt to the final limit of 96,215 mt (12 percent decrease). While the 2010 SAFE report indicates an increase in spawning biomass, the current spawning biomass level places this stock in Tier 3b. Accordingly, ABC was calculated as required by the FMP for Tier 3b stocks, and TAC was set equal to ABC. Although the final TAC for pollock is reduced from the proposed level by 12 percent, this limit is still an increase over the final 2010 pollock TAC. Pacific cod decreased from 73,426 mt to 65,100 mt (11 percent decrease) in light of a new assessment model that projects a slight decline of Pacific cod biomass in coming years (rather than a slight increase as projected in 2009) and a decrease in the biomass estimates for recent year (2006-2009) classes.

The basis for the increased TACs for sablefish, sharks, octopuses, and sculpins varied. Sablefish increased from 9,300 mt to 11,290 mt (21 percent increase) due to an increased biomass estimate from the 2010 sablefish hook-and-line survey. Sharks increased from 957 mt to 6,197 mt (548 percent increase) due to the SSC's modification of the Plan Team's recommendations for calculating shark ABC. The SSC recommended estimating the spiny dogfish ABC on a tier 5 approach, using the best available estimates for biomass and natural mortality rates for this species. For all other shark species, the SSC recommended using tier 6, which is based on recent average catch information. In combination, these recommendations led to the increased ABC for the shark complex. Octopuses increased from 224 mt to 954 mt (326 percent increase) due to the adoption of a biomass-based estimate placing octopuses in tier 5, rather than tier 6. Tier 6 management is based on the use of average historic catch data, which the Plan Team and SSC agreed was not an appropriate method to use for setting the OFL for octopuses. Instead, the octopus OFL was set using a modified tier 5 approach, using the average of the three most recent GOA trawl survey estimates of biomass as a minimum estimate, and applying a conservative natural mortality rate to that estimate to establish the OFL. Sculpins increased from 4,746 mt to 5,496 mt (16 percent increase) due to revised estimates of natural mortality.

The SSC recommended, and the Council concurred, that sharks and octopuses be placed on bycatch status. This eliminates the possibility that these species could be subject to directed fishing, and minimizes the potential catch of the species in these categories. The SSC believed that the stock assessment models for these species groups should be improved before considering allowing any directed fishing to occur. As such, NMFS is placing sharks and octopuses on bycatch status for the entire year.

Detailed information providing the basis for the changes described above is contained in the final 2010 SAFE report. The other TAC increases or decreases in the final 2011 harvest specifications are within 2 percent of the proposed 2011 harvest specifications. The final TACs are based on the most recent scientific information available. These TACs are specified in compliance with the harvest strategy described in both the proposed and final rules for the 2011 and 2012 harvest specifications. The changes in TAC limits between the proposed and this final rule are compared in the following table.

The final 2011 and 2012 TAC recommendations for the GOA are within the OY range established for the GOA and do not exceed the ABC for any single species or complex. Tables 1 and 2 list the 2011 and 2012, respectively, final OFL, ABC, and TAC amounts for GOA groundfish.

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the Magnuson-Stevens Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species; the sum must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)). NMFS also must specify apportionments of TACs, prohibited species catch (PSC) allowances, and prohibited species quota (PSQ) reserves established by § 679.21; seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC; Amendment 80 allocations; and Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii). The final harvest specifications set forth in Tables 1 through 16 of this action satisfy these requirements. The sum of TACs is 2,000,000 mt for 2011 and is 2,000,000 mt for 2012.

Section 679.20(c)(3)(i) further requires NMFS to consider public comment on the proposed annual TACs (and apportionments thereof) and PSC allowances, and to publish final harvest specifications in the Federal Register . The proposed 2011 and 2012 harvest specifications and PSC allowances for the groundfish fishery of the BSAI were published in the Federal Register on December 8, 2010 (75 FR 76372). Comments were invited and accepted through January 7, 2011. NMFS received 9 letters with 4 comments on the proposed harvest specifications. These comments are summarized and responded to in the “Response to Comments” section of this rule. NMFS consulted with the Council on the final 2011 and 2012 harvest specifications during the December 2010 Council meeting in Anchorage, AK. After considering public comments, as well as biological and economic data that were available at the Council's December meeting, NMFS is implementing the final 2011 and 2012 harvest specifications as recommended by the Council.

The final ABC levels are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations. The FMP specifies a series of six tiers to define OFL and ABC amounts based on the level of reliable information available to fishery scientists. Tier one represents the highest level of information quality available while tier six represents the lowest.

In December 2010, the Scientific and Statistical Committee (SSC), Advisory Panel (AP), and Council reviewed current biological information about the condition of the BSAI groundfish stocks. The Council's Plan Team compiled and presented this information in the 2010 SAFE report for the BSAI groundfish fisheries, dated November 2010. The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. The SAFE report was made available for public review upon notification of the proposed harvest specifications. The 2010 SAFE report continues to be available for public review ( see ADDRESSES ). From these data and analyses, the Plan Team estimated an OFL and ABC for each species or species category.

In December 2010, the SSC, AP, and Council reviewed the Plan Team's recommendations. The SSC concurred with the Plan Team's recommendations, and the Council adopted the OFL and ABC amounts recommended by the SSC (Table 1). The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the sum of the TACs within the required OY range of 1.4 million to 2.0 million mt. The Council adopted the AP's 2011 and 2012 TAC recommendations. As required by annual catch limit rules (FR 74 3178, January 16, 2009), none of the Council's recommended TACs for 2011 or 2012 exceeds the final 2011 or 2012 ABCs for any species category. The final 2010 and 2011 harvest specifications approved by the Secretary are unchanged from those recommended by the Council and are consistent with the preferred harvest strategy alternative in the EIS ( see ADDRESSES ). NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the biological condition of groundfish stocks as described in the 2010 SAFE report that was approved by the Council.

NMFS intends to develop a single database that stock assessment authors can access through a single source such as the Alaska Fisheries Information Network. The development of this database will require the cooperation of several agencies, including NMFS, the Alaska Department of Fish and Game, and the International Pacific Halibut Commission (IPHC). At its October 2010 meeting, the Council's groundfish Plan Teams recommended the formation of a total catch accounting working group to assist NMFS in developing a methodology to estimate total catch of groundfish. While much of the information is currently available and will be incorporated into the final 2010 SAFE reports, the development of an adequate methodology is ongoing and not fully ready for use in the final SAFE reports. NMFS intends to have the information available for the assessment cycle in the fall of 2011.

The Council is currently considering an action to modify the non-Chinook salmon management measures to minimize non-Chinook salmon bycatch. This potential action could impose cap threshold limits, sector specific allocations, and area specific closures for BSAI groundfish closures. This action is not expected to be in place by the 2012 fishing year.

The Council has approved a new program to replace the Gulf of Alaska Rockfish Pilot Program (Rockfish Program), which is scheduled to expire on December 31, 2011. NMFS is currently developing regulations to implement this program. The new rockfish program could alter BSAI groundfish sideboards for vessels participating in the Rockfish Program. This new program is expected to be in place for the 2012 fishing year.

In 2010, NMFS Alaska Region completed a Section 7 formal consultation on the effects of the authorization of the Alaska groundfish fisheries on Endangered Species Act listed species under NMFS jurisdiction. The consultation resulted in a biological opinion that determined that the effects of the Alaska groundfish fisheries were likely to jeopardize the continued existence of, and adversely modify designated critical habitat for, the western distinct population segment of Steller sea lions. The biological opinion included a reasonable and prudent alternative (RPA) that requires changes to the BSAI Atka mackerel and Aleutian Islands subarea Pacific cod fisheries to prevent the likelihood of jeopardy of extinction or adverse modification of critical habitat for Steller sea lions. Separate rulemaking for implementation of the RPA became effective January 1, 2011 (FR 75 77535, December 13, 2010; and 75 FR 81921, December 29, 2010). Changes to the Atka mackerel and Pacific cod harvest specifications that are required by the rule implementing the RPA are described in the section for each of these target species. The proposed harvest specifications notified the public of possible changes to the harvest specification limits.