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

Notice is hereby given of a public hearing to be held at the Westin Cincinnati Hotel, Cincinnati, Ohio beginning at 8 a.m. on Tuesday, October 4, 2011, with respect to a proposed amendment to the tentative marketing agreement and to the order regulating the handling of milk in the Mideast marketing area.

The hearing is called pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674) (Act), and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR part 900).

The purpose of the hearing is to receive evidence with respect to the economic and marketing conditions which relate to the proposed amendments, hereinafter set forth, and any appropriate modifications thereof, to the tentative marketing agreement and to the order.

Evidence also will be taken to determine whether emergency marketing conditions exist that would warrant omission of a recommended decision under the rules of practice and procedure (7 CFR 900.12(d)) with respect to any proposed amendments.

Actions under the Federal milk order program are subject to the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA). The RFA seeks to ensure that, within the statutory authority of a program, the regulatory and information collection requirements are tailored to the size and nature of small businesses. For the purpose of the RFA, a dairy farm is a “small business” if it has an annual gross revenue of less than $750,000, and a dairy products manufacturer is a “small business” if it has fewer than 500 employees (13 CFR 121.201). Most parties subject to a milk order are considered as a small business. Accordingly, interested parties are invited to present evidence on the probable regulatory and informational impact of the hearing proposals on small businesses. Also, parties may suggest modifications of these proposals for the purpose of tailoring their applicability to small businesses.

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

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 8c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, the USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, has its principal place of business, has jurisdiction in equity to review the USDA's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.

Interested parties who wish to introduce exhibits should provide the Administrative Law Judge at the hearing with (4) copies of such exhibits for the Official Record. Additional copies should be made available for use by other hearing participants. Any party that has submitted a proposal notice herein, when participating as a witness, is required to make their testimony—if prepared as an exhibit—and any other exhibits, available to USDA officials prior to the start of the hearing on the day of their appearance. Individual dairy farmers are not subject to this requirement.

The hearing will continue until such time as determined to have ended by the presiding Administrative Law Judge. If necessary, the schedule for the next session will be announced at the time of adjournment. Such reconvening date and time will also be posted on the AMS-Dairy Programs Web site at: http://www.ams.usda.gov/dairy .

The proposed amendments, as set forth below, have not received the approval of the Department.

The authority citations for 7 CFR part 1033 read as follows:

This proposal seeks to alter the definition of a pool distributing plant within the Mideast Milk Marketing Order. Specifically, the proposal recommends that a distributing plant, which is physically located within the Mideast Milk Marketing Order, be regulated by that order if half of its total route disposition is within Federal Milk Marketing Area boundaries and its sales patterns are such that no one Order has more than 25% of its sales volume. This proposed change would only affect the Mideast Milk Marketing Order.

1. Amend § 1033.7 by revising paragraph (a) to read as follows:

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., provides among other things, that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” (5 U.S.C. 553(e)) Pursuant to this provision of the APA, the National Electrical Manufacturers Association (NEMA) has petitioned the Department of Energy (DOE) for rulemaking to exclude from coverage a type of incandescent reflector lamp (IRL) from energy conservation standards under the Energy Policy and Conservation Act (EPCA; 42 U.S.C. 6291 et seq. ). Specifically, NEMA seeks an exemption for 120 volt (V), 100 watt (W), R20  1 short (having a maximum overall length (MOL) of 3 5/8 inches) lamps (hereafter referred to as “R20 short lamps”) marketed for use in hot tub spas. These lamps are sold in jurisdictions that allow pools and spas to be supplied with 120V electricity.

Amendments to EPCA in the Energy Independence and Security Act of 2007 (EISA 2007), Public Law 110-140, expanded EPCA's definition of “incandescent reflector lamp” to include lamps with a diameter between 2.25 and 2.75 inches (R18-R22). 2 (42 U.S.C. 6291(30)(C)(ii)) This addition made R20 lamps (having a diameter of 20/8, or 2.25, inches) covered products subject to EPCA's standards for IRLs. As explained in NEMA's petition, based upon this change to the definition, statutory standards went into effect for R20 lamps on June 15, 2008, the date 180 days after the date of enactment of EISA 2007. (42 U.S.C. 6295(i)(1)(D)(ii)) However, noncompliant R20 short lamps remained on the market until September 2010, because the two manufacturers of these lamps mistakenly believed the lamps were excluded from coverage. The manufacturers had relied upon the Federal Trade Commission's (FTC) labeling rule, 16 CFR part 305, which continues to publish the previous lamp definitions from the Energy Policy Act of 1992 (EPACT 1992), Public Law 102-486, amendments of EPCA. As written, the FTC labeling regulations treat IRLs as general service incandescent lamps (GSILs), and erroneously continued to define GSILs as not including those lamps specifically designed for “[s]wimming pool or other underwater service.” 16 CFR 305.3(m)(3). This exclusion was eliminated from EPCA by section 321 of EISA 2007. 3 Upon realization that FTC definitions were incorrect and the R20 short lamps were subject to energy conservation standards, the manufacturers removed the product from the market, and, in November 2010, NEMA submitted the petition that is the subject of this notice. DOE published the petition for rulemaking in the Federal Register on December 23, 2010 and requested public comment. 75 FR 80731.

In this petition, NEMA asked both for a rulemaking to exclude R20 short lamps from coverage of energy conservation standards, and for a stay of enforcement pending that rulemaking. As grounds for the petition, NEMA stated that R20 short lamps qualify for an exemption under 42 U.S.C. 6291(30)(E), which allows the Secretary to exclude a fluorescent or incandescent lamp “as a result of a determination that standards for such lamp would not result in significant energy savings because such lamp is designed for special applications or has special characteristics not available in reasonably substitutable lamp types.” In its petition, NEMA contended that a rulemaking would find that energy conservation standards for R20 short lamps do not result in significant energy savings and that the lamp is designed for special applications or has special characteristics not available in substitute lamp types. Specifically, as the lamp has a particular MOL and was specially designed to meet underwater illumination requirements of hot tub manufacturers (including designated beam spread and lumen output), there are no substitute products on the market for this application. 75 FR 80731, 80732 (Dec. 23, 2010).

Additionally, NEMA asserted that having energy conservation standards for this unique lamp type would lead to its unavailability in the United States. To the best of NEMA's and manufacturers' knowledge, the decision of the two R20 short lamp manufacturers to withdraw the product from the market has already resulted in its current unavailability. 75 FR 80731, 80732-33 (Dec. 23, 2010)

As noted above, DOE subsequently published a notice in the Federal Register on December 23, 2010 containing the petition and requesting public comment. 75 FR 80731. DOE received several comments from manufacturers, utilities, and environmental and energy efficiency organizations. 4 Specifically, DOE received comments from Pentair Water Pool and Spa, Inc. (Pentair) and Northwest Energy Efficiency Alliance (NEEA). It also received a joint comment from Pacific Gas and Electric Company (PG&E), Southern California Edison (SCE), Southern California Gas Company (SCGC), and San Diego Gas and Electric (SDG&E) (hereafter “California Investor-Owned Utilities” (CA IOUs)). Natural Resources Defense Council (NRDC), the Appliance Standard Awareness Project (ASAP), the American Council for an Energy-Efficient Economy (ACEEE), Earthjustice, and the National Consumer Law Center (NCLC) (hereafter “Energy Efficiency Organizations”) also provided joint comments. The following discussion summarizes and responds to comments on the NEMA petition.

In response to the notice of NEMA's petition, several stakeholders commented on DOE's authority to exempt R20 short lamps under 42 U.S.C. 6291(30)(E).

In its petition, NEMA asserted that DOE has the authority to exempt lamps that meet the criteria set forth in 42 U.S.C. 6291(30)(E). In January 2011, NEMA submitted comments supplementing its original petition. To bolster its argument, in its supplementary statements, NEMA cited 42 U.S.C. 6295(i)(1)(D), which authorizes the Secretary to exempt a general service lamp from standards in the event that application of the standard would prevent the fulfillment of a specialized application and when the lamp is unlikely to be used in a general service lighting application. While R20 short lamps are not classified as general service lamps, NEMA pointed to 42 U.S.C. 6295(i)(1)(D) as further evidence of Congress's intent to provide a regulatory pathway for excluding lamps that serve special applications. (NEMA, No. 2.1 at p. 2)  5

Both the CA IOUs and Energy Efficiency Organizations argued that exclusion under 42 U.S.C. 6291(30)(E) is no longer possible because the compliance date has already passed for these standards. The CA IOUs and Energy Efficiency Organizations commented that 42 U.S.C. 6291(30)(E) permits the exemption of lamps for which standards “would not result in significant energy savings,” and contended the conditional phrasing “would not result,” as opposed to the present tense wording “are not resulting,” means the section only applies to standards not yet in effect. (CA IOUs, No. 3.1 at p. 1; Energy Efficiency Organizations, No. 4.1 at p. 1-2)

Energy Efficiency Organizations further stated that they interpret 42 U.S.C. 6291(30)(E) as facilitating the process of determining coverage rather than retroactively excluding products from coverage. Moreover, the commenters argued that interpreting exclusion as a process occurring after standards go into effect would erode energy savings by allowing manufacturers to continually exempt products and chip away at the covered lamp market. The Energy Efficiency Organizations stated that while standards for any one lamp may generate marginal savings, standards for IRLs as a whole represent considerable energy savings. (Energy Efficiency Organizations, No. 4.1 at p. 2-3)

DOE does not believe the plain language of EPCA under 42 U.S.C. 6291(30)(E) compels an interpretation that the section only applies to standards before their compliance date. DOE finds this reading would prevent application of 42 U.S.C. 6291(30)(E). Under 42 U.S.C. 6295(o)(3), DOE is already barred from adopting standards for any product class for which the standards would not result in significant conservation of energy. Therefore, if interpreted to apply to products for which standards are not yet in effect, 42 U.S.C. 6291(30)(E) would be rendered redundant and superfluous, as both it and 42 U.S.C. 6295(o)(3) evaluate possible significant energy savings from future standards. Instead, DOE has concluded that 42 U.S.C. 6291(30)(E) contains no time bar in terms of DOE taking a rulemaking action to address any lamp for which standards would not result in significant energy savings as it is designed for special applications or has special characteristics not available in substitute lamp types. Given the broad and growing coverage of DOE's energy conservation standards for lamps, DOE believes that Congress intended 42 U.S.C. 6291(30)(E) to provide a mechanism to address both those lamps inadvertently covered by preexisting standards, as well as new lamps subsequently developed to which standards would otherwise apply.

The CA IOUs and the Energy Efficiency Organizations also argued that DOE does not have the authority to exempt R20 short lamps because of the statute's anti-backsliding provision, which prohibits DOE from prescribing amended standards that increase the maximum allowable energy use or decrease the minimum required energy efficiency, of a covered product. (42 U.S.C. 6295(o)(1)) The CA IOUs and the Energy Efficiency Organizations stated that applying an exemption to R20 short lamps would violate EPCA by decreasing the required energy efficiency of a currently covered product. (CA IOUs, No. 3.1 at p. 1; Energy Efficiency Organizations, No. 4.1 at p. 2) The Energy Efficiency Organizations added that the precedent set by NRDC v. Abraham (355 F.3d 179, 196 (2d Cir. 2004)) means that “section 325(o)(1) must be read to restrict DOE's subsequent discretionary ability to weaken that standard at any point thereafter.” (Energy Efficiency Organizations, No. 4.1 at p. 2)

NEMA countered that the anti-backsliding provision does not preclude excluding lamps from an existing standard because: (1) 42 U.S.C. 6291(30)(E) would be rendered superfluous if the anti-backsliding provision were to preclude DOE from considering a petition; and (2) a determination would have already been made that the exempted lamp would not produce significant energy savings if subjected to standards, thereby meeting the criteria that the exclusion would not increase allowable energy use. (NEMA, No. 2.1 at p. 2-3)

After careful review of the relevant statutory provisions and these comments, DOE has concluded that Congress intended 42 U.S.C. 6291(30)(E) to provide a mechanism for granting relief from current and future lamp standards. In reaching this conclusion, DOE notes that it is possible to read 42 U.S.C. 6291(30)(E) and 42 U.S.C. 6295(o)(1) in harmony so as to give effect to both provisions. DOE would not be changing the level of the existing energy conservation standard, and for those units that would now be excluded from the definition of “incandescent lamp,” there would first have to be a determination that the standard would not result in a significant energy savings for those lamps. Rather than DOE exercising discretion to weaken energy conservation standards in violation of the anti-backsliding provision, DOE is giving effect to an express statutory provision under precisely the situation for which Congress provided a mechanism for resolution.

DOE also received comments from CA IOUs and Energy Efficiency Organizations that R20 short lamp noncompliance would be better addressed through the Requests for Adjustments provision (Section 504 of the Department of Energy Organization Act, Pub. L. 95-91; codified at 42 U.S.C. 7194). The Requests for Adjustments provision (also known as “exception relief”) allows a manufacturer to submit a hardship waiver to DOE's Office of Hearings and Appeals (OHA). OHA has a process to handle claims of “hardship, inequity, or unfair distribution of burdens” by making adjustments to regulations. Id. Specifically, the CA IOUs and the Energy Efficiency Organizations claim this process is better for the R20 short lamp situation because: (1) DOE can grant exceptions to certain manufacturers rather than a general exemption to the product; (2) DOE can grant exceptions for a certain period of time appropriate to the manufacturers' needs; and (3) DOE can avoid using its time and resources to carry out an additional rulemaking. (CA IOUs, No. 3.1 at p. 3; Energy Efficiency Organizations, No. 4.1 at p. 1, 4) NEEA further contended that filing a hardship petition with OHA would provide more appropriate relief for the manufacturer, but given that the OHA process allows a more specific remedy, NEEA argued that a blanket product exemption would be highly inappropriate. (NEEA, No. 5.1 at p. 1-2) In response, DOE has determined that this situation is not specific to a single manufacturer, but rather, it applies to an entire product type. Accordingly, OHA exception relief would not be an appropriate remedy for R20 short lamps, because exception relief cannot be used to alter a standard level across the board, even where it has been belatedly demonstrated that another level might be more appropriate. In such case, exception relief to specific manufacturers could preclude others from entering this market and ultimately reduce competition. Furthermore, OHA's authority to grant exception relief does not apply to energy conservation standards set by statute, but instead, it only applies to standards set pursuant to DOE's regulatory authority. The Secretary is legally required to implement the laws as enacted, so if the Secretary lacks authority to waive statutory requirements, the Secretary cannot delegate a greater power to OHA in terms of granting exception relief.

After reviewing NEMA's petition and responses to the petition, DOE has concluded that 42 U.S.C. 6291(30)(E) applies to products for which standards for fluorescent lamps and incandescent lamps are already in effect and that it grants DOE the authority to exclude by rule certain IRLs from coverage if they met the necessary statutory criteria for exclusion. Therefore, DOE has determined that the exemption of R20 short lamps must be evaluated based on energy savings and lamp application rather than through a petition for exception relief based upon hardship. For these reasons, DOE grants NEMA's petition to initiate a rulemaking to consider exclusion of R20 short lamps pursuant to 42 U.S.C. 6291(30)(E).

In its petition, NEMA also requested a stay of enforcement of standards for R20 short lamps pending the outcome of this rulemaking. Pentair, a manufacturer of spas, commented that its supplier has stopped supplying R20 short lamps in order to comply with the energy conservation standards, and the commenter warned that this supply stoppage will create significant hardship for both Pentair and its customers because there is no substitute for this lamp. (NEMA, No. 2.1 at p. 1)  6 Further, Pentair stated that Underwriters Laboratories specifies the use of R20 short lamps in luminaires for numerous spa products. Pentair asserted that without an equivalent replacement, its customers would be forced to replace the entire fixture in order to continue meeting local building codes that require certain wattage per square foot to ensure adequate and safe lighting levels. (NEMA, No. 2.1 at p. 1)

NEMA also warned that failure to exclude R20 short lamps will lead to their unavailability in the United States. 75 FR 80731, 80733 (Dec. 23, 2010). NEMA stated that such unavailability presents a potential marketplace problem for the public, pool and spa builders, and consumers, as they do not have any available substitutes. Further, Pentair noted that it had orders in excess of its inventory, a problem that would become worse with time. (NEMA, No. 2.1 at p. 3)

DOE has decided that given the confusion in the industry and harm likely to result in the interim, while this rulemaking is pending, DOE will not pursue enforcement action against manufacturers producing and/or selling R20 short lamps that do not comply with prescribed standards.

After reviewing NEMA's petition and comments on the petition, DOE has concluded it has the legal authority to grant exclusions for IRLs under 42 U.S.C. 6291(30)(E). DOE will conduct a rulemaking to consider excluding R20 short lamps from coverage under energy conservation standards pursuant to the requirements specified in 42 U.S.C. 6291(30)(E) and has granted a stay of enforcement pending the outcome of the rulemaking. Accordingly, while this rulemaking is pending, DOE will not pursue enforcement action against manufacturers producing and/or selling R20 short lamps that do not comply with prescribed standards.

DOE will undertake a rulemaking to consider exclusion from coverage under energy conservation for R20 short lamps pursuant to the requirements of 42 U.S.C. 6291(30)(E). Under this section, in order to exclude a fluorescent or incandescent lamp, the Secretary must make the determination, by rule, that standards for the lamp “would not result in significant energy savings because such lamp is designed for special applications or has special characteristics not available in reasonably substitutable lamp types.” Id. In its petition, NEMA asserted that a rulemaking to consider exclusion of R20 short lamps from standards coverage will conclude: (1) That energy conservation standards for this unique type of lamp will not result in significant energy savings; and (2) this type of lamp is designed for special applications or has special characteristics not available in reasonably substitutable lamp types.

Therefore, in the rulemaking, DOE will evaluate the market impact of excluding R20 short lamps from coverage, including the direct loss in energy savings, as well as the potential for migration of the lamps to other markets and the associated impacts on energy savings. DOE will also determine whether R20 short lamps truly have unique characteristics not available in reasonably substitutable lamp types. DOE will conduct a market and technology analysis to identify options that meet requirements of spa applications, including technologies to make R20 short lamps more energy efficient, as well as the availability of standard-compliant substitute lamps.

DOE will consult the relevant interested parties in the rulemaking process including manufacturers (both of lamps and of spas), consumers, energy conservation and environmental advocates, and any other interested members of the public. The rulemaking will address the comments DOE has already received or subsequently receives regarding whether or not R20 short lamps meet the statutory criteria for exclusion.

In the rulemaking, DOE will determine whether or not energy conservation standards for R20 short lamps result in significant energy savings. Energy Efficiency Organizations have commented that an exclusion under 42 U.S.C. 6291(30)(E) can only be granted if the standards would not result in significant energy savings either because the lamp is designed for special application or has special characteristics not available in reasonably substitutable lamp types. Subsequently, the Energy Efficiency Organizations contend that in its petition, NEMA does not make the case that it is the unique features of R20 short lamps and the unavailability of substitutes that will prevent the standards from generating significant energy savings. Instead, they contend that NEMA relies solely on the uniqueness of the 100W R20 short lamp as a basis for exclusion under 42 U.S.C. 6291(30)(E). (Energy Efficiency Organizations, No. 4.1 at p. 4)

In response, DOE does not believe that 42 U.S.C. 6291(30)(E) requires a lamp's lack of significant energy savings potential to be directly attributable to the special application or special characteristic itself. Instead, DOE believes that a more reasonable interpretation would also account for the fact that the lamps' use in special applications and special characteristics not available in substitute lamps may result in very low shipment volumes, which in turn may lead to a determination that significant energy savings would not result from application of energy conservation standards to such lamps.

In its petition, NEMA contended that due to the low market share and lower wattage of R20 short lamps, energy conservation standards will not result in significant energy savings. NEMA determined that sales of R20 short lamps represented significantly less than 0.1 percent of 2009 shipments of IRL covered by energy conservation standards. The petitioner noted that in the 2009 rulemaking for IRL standards, DOE determined that due to low market share, IRLs with rated wattages greater than 205 watts would not represent substantial potential energy savings and should, therefore, not be covered by standards. 75 FR 80731, 80733 (Dec. 23, 2010). Because the R20 short lamp market is even smaller, NEMA reasoned that these lamps similarly would not have a significant energy savings potential.

The CA IOUs disagreed with NEMA, stating that exempting R20 short lamps would put significant energy savings at risk, because the lamp has the potential to be used in other applications. (CA IOUs, No. 3.1 at p. 2) NEMA contended that market migration of unregulated R20 short lamps is improbable and that consumers would be unlikely to substitute unregulated R20 short lamps for other types of regulated residential lamps, arguing that R20 short lamps are: (1) Relatively expensive ($10-20) compared to other types of IRL used in residential applications; (2) marked for pool and spa applications, thereby deterring purchases for general lighting use; and (3) generally not found in stores where other lighting products for general residential applications are sold. 75 FR 80731, 80733 (Dec. 23, 2010).

However, the CA IOUs found that there were R20 short lamp types starting from $7.88, which is not much higher than the typical $5-9 price range of small diameter reflector lamps. (CA IOUs, No. 3.1 at p. 2) The CA IOUs also pointed out that the maximum overall length (MOL) of 3 5/8 inches is not unique to R20 short lamps, as there are many small diameter reflector lamps and some larger diameter reflector lamps (PAR30) that have an MOL of less than or equal to 3 5/8 inches. Therefore, the commenters argued that the MOL of R20 short lamps does not prevent it from being used in other fixtures. Additionally, the commenters argued that reflector lamps with larger MOLs can be substituted for short lamps. (CA IOUs, No. 3.1 at p. 2) The Energy Efficiency Organizations raised similar points about prices and MOL and added that other distinctive features of R20 short lamps, such as the wide beam spread or heat shields, would not prevent their use in applications that did not require these features. (Energy Efficiency Organizations, No. 4.1 at p. 3) The CA IOUs also commented that if production of the lamps were to increase, manufacturers could achieve economies of scale, which would bring down the price and further increase the chances that the R20 short lamps could serve as substitutes for other lamps covered by standards. (CA IOUs, No. 3.1 at p. 2)

NEEA also agreed with the CA IOUs' assessment of the potential for unregulated R20 short lamps to migrate to other markets and create a loophole in energy conservation standards. NEEA and the Energy Efficiency Organizations both argued that a similar situation occurred when bulged reflector (BR) lamps were excluded from EPACT 1992's IRL standards and subsequently went from being a relatively unknown product to comprising more than 40 percent of the market. (NEEA, 5.1 at p. 2-3)

DOE requests comments on the potential for unregulated R20 short lamps to be used as substitutes for other lamps covered by energy conservation standards. Specifically, DOE requests further information on whether or not the distinctive features, pricing, and spa-specific labeling and marketing of R20 short lamps would provide a sufficient deterrent to their use in other applications.

In the rulemaking, DOE will consider whether the R20 short lamp is designed for special applications or has special characteristics not available in reasonably substitutable lamp types. NEMA asserted that R20 short lamps are used for a unique specification in hot tub spas and that there are currently no substitute products on the market for this application. 75 FR 80731, 80733 (Dec. 23, 2010). Pentair, a spa manufacturer, agreed, noting that its underwater spa lights are often used in public pools and spas regulated by local building codes that specify a wattage-per-square-foot-of-water-surface-area ratio to ensure adequate and safe lighting levels. Pentair asserted that there is no reflector type lamp with a medium base socket and required equivalent wattage that can be substituted for existing installations of the effected model of lighting for Pentair spas. (NEMA, No. 2.1 at p. 1)  7 DOE requests comments on the availability of substitute lamps that would meet both energy conservation standards and relevant spa application requirements.

In its petition, NEMA also indicated that it may not be possible to make R20 short lamps compliant with standards. NEMA noted that limited fixture space in hot tub spas requires a “short” lamp with a MOL of 3 5/8 inches. However, the lamp must also have a wide beam spread to provide diffuse illumination. Further, the lamps must have a heat shield to protect against high temperatures damaging the cement that joins the base of the lamp to the glass envelope. 75 FR 80731, 80732 (Dec. 23, 2010). Current energy conservation standards for a 100W IRL require a minimum average lamp efficacy of 14 lumens per watt, while R20 short lamps produce 9 or 10 lumens per watt. NEMA stated that it is not possible to increase the lumen output without increasing the MOL, because a more-efficient filament would operate at a higher temperature which could cause the lamp to burst. NEMA further stated in its petition that a hotter-burning lamp in an underwater fixture could lead to other potential safety hazards. Additionally, a more-efficient filament could considerably shorten lamp life, which would be unacceptable in spa applications. Id.

However, the CA IOUs challenged NEMA's assertion that size and thermal constraints render it impossible to make R20 short lamps more efficient while also meeting spa application requirements. The CA IOUs contended that despite size and thermal limitations, there are commercially-available small diameter lamps that have high efficiency, long life, and wide beam spreads. Further, the CA IOUs noted that these lamps use single-ended and double-ended halogen burners that improve energy efficiency while still meeting size requirements of spa lamps and providing sufficient lumens. (CA IOUs, No. 3.1 at p. 3) The CA IOUs cited examples such as: (1) The Philips 40W Halogena Energy Saver, an R20 halogen lamp with a double-ended halogen burner, lamp life of 3,000 hours, 540 lumen output and wide (flood) beam spread; and (2) the Philips 70W Halogena Energy Saver with double-ended burner, lamp life of 3,000 hours, and 1600 lumen output. (CA IOUs, No. 3.1 at p. 2-3) The Energy Efficiency Organizations also cite the same examples. (Energy Efficiency Organizations, No. 4.1 at p. 3) The CA IOUs also gave the example of a PAR20  8 lamp, which typically does not have MOLs exceeding 3 5/8 inches, and does have a lamp life of 3,000 hours, a wide variety of beam spreads, and the ability to accommodate single-ended halogen burners that would improve efficiency. (CA IOUs, No. 3.1 at p. 2) NEEA concurred with the CA IOUs on this matter. (NEEA, 5.1 at p. 2) DOE requests comments on the technical feasibility of making R20 short lamps compliant with the energy conservation standards and also meeting relevant spa application requirements. In particular, DOE requests any technical data indicating that high temperatures would damage the cement that joins the base of the lamp to the glass envelope and/or the feasibility of increasing the lumen output without increasing the MOL using a more-efficient filament. DOE also requests comment on whether other technologies such as compact fluorescent lamp (CFL) or light-emitting diode (LED) could meet spa application requirements.

Although, DOE welcomes comments on all aspects of this rulemaking, DOE is particularly interested in receiving comments, information, and recommendations on the following issues for the purpose of determining whether R20 short lamps meet the statutory criteria for exclusion from coverage set forth under 42 U.S.C. 6291(30)(E):

1. DOE seeks comments on the potential for unregulated R20 short lamps to be used as substitutes for other lamps covered by energy conservation standards.

2. DOE seeks comments on whether or not the distinctive features, pricing, and spa-specific labeling and marketing of R20 short lamps provide a sufficient deterrent to their use in other applications;

3. DOE requests further information on the availability of substitute lamps that would meet both energy conservation standards and relevant spa application requirements, particularly whether CFLs or LEDs could serve as substitutes; and

4. DOE requests further information on the technical feasibility of making R20 short lamps compliant with the prescribed energy conservation standards and also meeting relevant spa application requirements. In particular, DOE is interested in any technical data indicating that high temperatures would damage the cement that joins the base of the lamp to the glass envelope and/or the feasibility of increasing the lumen output without increasing the MOL using a more-efficient filament.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0971; Directorate Identifier 2011-CE-030-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

The Civil Aviation Authority, which is the aviation authority for New Zealand, has issued AD DCA/FU24/180, dated July 28, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We estimate that this proposed AD will affect 1 product of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $0 per product.

Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $85, or $85 per product.

In addition, we estimate that any necessary follow-on actions would take about 6 work-hours and require parts costing $0, for a cost of $510 per product. We have no way of determining the number of products that may need these actions.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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

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. 21 U.S.C. 811(h); 21 CFR 1308.49. If proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling up to six months. 21 U.S.C. 811(h)(2). Where the necessary findings are made, a substance may be temporarily scheduled 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 section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) for the substance. 21 U.S.C. 811(h)(1). The Attorney General has delegated his authority under 21 U.S.C. 811 to the Administrator of DEA. 28 CFR 0.100.

Section 201(h)(4) of the CSA (21 U.S.C. 811(h)(4)) requires the Administrator to notify the Secretary of Health and Human Services of her intention to temporarily place a substance into schedule I of the CSA. 1 The Administrator has transmitted notice of her intent to place mephedrone, methylone, and MDPV in schedule I on a temporary basis to the Assistant Secretary by letter dated June 15, 2011. The Assistant Secretary responded to this notice by letter dated July 25, 2011, and advised that based on review by the Food and Drug Administration (FDA) there are currently no investigational new drug applications (INDs) or approved new drug applications (NDAs) for MDPV, mephedrone, or methylone. The Assistant Secretary also stated that the Department of Health and Human Services has no objection to the temporary placement of MDPV, mephedrone, and methylone into schedule I of the CSA. DEA has taken into consideration the Assistant Secretary's comments. As MDPV, mephedrone, and methylone are not currently listed in any schedule under the CSA, and as no exemptions or approvals are in effect for MDPV, mephedrone, and methylone under Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355), DEA believes that the conditions of 21 U.S.C. 811(h)(1) have been satisfied. Any additional comments submitted by the Assistant Secretary in response to this notification shall also be taken into consideration before a final order is published. 21 U.S.C. 811(h)(4).

To make a finding that placing a substance temporarily into schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA (21 U.S.C. 811(c)). These factors are as follows: The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(c)(4)-(6). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).

A substance meeting the statutory requirements for temporary scheduling (21 U.S.C. 811(h)(1)) may only be placed in schedule I. Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and lack accepted safety for use under medical supervision. Available data and information for mephedrone, methylone, and MDPV indicate that these three synthetic cathinones have a high potential for abuse, no currently accepted medical use in treatment in the United States, and lack accepted safety for use under medical supervision.

These synthetic cathinones are not currently listed in any schedule under the CSA. Synthetic cathinones are designer drugs of the phenethylamine class which are structurally and pharmacologically similar to amphetamine, 3,4-methylenedioxymethamphetamine (MDMA), cathinone and other related substances. The addition of a beta-keto (β-keto) substituent to the phenethylamine core structure produces a group of substances that now have cathinone as the core structure. These substances have been used as research chemicals. There is no evidence in the scientific literature that these substances have any legitimate non-research uses and the Assistant Secretary has advised that there are no exemptions or approvals in effect under section 505 (21 U.S.C. 355) of the Federal Food, Drug and Cosmetic Act. In other words, these synthetic cathinones have not been approved by the FDA for human consumption.

Synthetic cathinones, like amphetamine, cathinone, methcathinone, and methamphetamine, are central nervous system (CNS) stimulants. The three synthetic cathinones proposed for control, 4-methyl-N-methylcathinone (mephedrone), 3,4-methylenedioxy-N-methylcathinone (methylone), and 3,4-methylenedioxypyrovalerone (MDPV) cause sympathomimetic effects such as agitation, tachycardia, dilated pupils, hyperthermia, diaphoresis (profuse sweating), and hypertension. Because the pharmacological effects of synthetic cathinones are similar to those of methamphetamine, cathinone, methcathinone, and MDMA, the abuse of synthetic cathinones is also likely to be similar to these substances and potentially cause serious harm to the users.

Numerous retail products marketed under the guise of “bath salts” and “plant food” have been analyzed and mephedrone, methylone, and MDPV have been identified in varying mixture profiles and quantities in these products. Mephedrone, methylone, and MDPV are the most commonly encountered synthetic cathinones. These three substances represent more than 98% of the 1429 reported synthetic cathinones that have been seized by law enforcement, as reported to the National Forensic Laboratory Information System (NFLIS), a national repository of drug evidence analysis from forensic laboratories across the United States. Of all the reports of these substances recorded by NFLIS from January 2009 to June 2011, 791 reports (55%) were MDPV, 331 reports (23%) were mephedrone, and 279 reports (20%) were methylone. Thus, these three synthetic cathinones are the subject of this notice of intent. 2

The synthetic cathinones mephedrone, methylone, and MDPV have recently emerged on the United States' illicit drug market and are being perceived as being `legal' alternatives to cocaine, methamphetamine, and MDMA. Although synthetic cathinones are new to the United States' illicit drug market, they have been popular drugs of abuse in Europe since 2007. MDPV is a derivative of pyrovalerone, which is a psychoactive drug that was used to treat chronic lethargy and fatigue. Research in anti-depressant and anti-parkinson agents resulted in the development and patenting of methylone. Methylone, however, has not been approved for these purposes. There are no currently accepted medical uses in treatment in the United States for mephedrone, methylone, or MDPV.

Mephedrone, methylone, and MDPV are falsely marketed as “research chemicals,” “plant food,” or “bath salts.” They are sold at smoke shops, head shops, convenience stores, adult book stores, and gas stations. They can also be purchased on the Internet and mailed using the U.S. Postal Service or international mail services. The packages of products containing these synthetic cathinones usually have the warning “not for human consumption,” most likely in an effort to circumvent statutory restrictions for these substances. Despite disclaimers that the products are not intended for human consumption, retailers promote that routine urinalysis drug tests will not typically detect the presence of these synthetic cathinones. However, analytical methods for the detection of mephedrone, methylone, MDPV, and other synthetic cathinones have recently been developed for these substances.

Evidence indicates that mephedrone, methylone, and MDPV are being abused for their psychoactive properties. Drug surveys found that these and other synthetic cathinones are being used as recreational drugs and are used as alternatives to illicit stimulants like MDMA and cocaine. Accordingly, mephedrone, methylone, and MDPV have been identified in human urine samples that were obtained for routine drug screenings, they have been detected in samples from drivers suspected of driving under the influence, and they have been detected by drug courts during mandatory periodic drug screens. They have also been identified in biological specimens from individuals (some exhibiting symptoms of “extreme agitation” or “excited delirium”) who have been arrested for possession of a controlled substance, child endangerment, or homicide. They have been detected in samples from deceased whose causes of death were reported as drug-induced toxicity, multiple drug toxicity, or other causes (e.g., blunt force trauma from a vehicular collision or suicide).

Based on studies in the scientific literature, the marketing of products that contain mephedrone, methylone, and MDPV is geared towards teens and young adults. Accordingly, reports indicate that the main users of synthetic cathinones are young male adults. These substances are also used by mid-to-late adolescents and older adults. Many of these abusers of synthetic cathinones have a previous history of drug abuse.

According to drug surveys, the reported average amount of synthetic cathinones used per dose ranged from approximately 25 to 250 milligrams and the average amount used per session (i.e., repeated administration and binging) ranged from approximately 25 milligrams to five grams depending on the substance consumed, duration of intake, and route of administration. The most common routes of administration of these substances are nasal insufflation by snorting the powder and oral ingestion by swallowing capsules or tablets. Other reported methods of administration include injection, rectal administration, and “bombing” (wrapping a dose of powder in a paper wrap and swallowing). Synthetic cathinones have also been reported to be used in binges. Reasons cited for binging include to prolong the duration of effects, to satisfy a “craving,” or to satisfy a strong urge to re-dose.

According to information found in drug surveys, clinical case reports, and law enforcement reports, users have reported using products containing mephedrone, methylone, and MDPV with other synthetic cathinones ( e.g., butylone, fluoromethcathinone, 4-MEC, etc. ), pharmaceutical agents ( e.g., lidocaine, caffeine, benzocaine, etc. ), or other recreational substances ( e.g., amphetamine, MDMA, cocaine, gamma-butyrolactone (GBL), kratom, N,N-benzylpiperazine (BZP), and 1-(3-trifluoromethylphenyl)-piperazine (TFMPP)). Chemical analyses of seized and purchased synthetic cathinone products indicate that some products contain multiple substances. Furthermore, investigative toxicology reports of drug screens in which more than one substance was detected indicate that users have ingested products composed of drug combinations ( e.g., a tablet composed of MDPV and BZP) or multiple drug products ( e.g., a MDPV powder product and a MDMA tablet).

The popularity of synthetic cathinones as recreational drugs has increased since they first appeared on the United States' illicit drug market. According to forensic laboratory reports, the first appearance of these synthetic cathinones in the United States occurred in 2009. In 2009, NFLIS registered 15 exhibits from eight states containing these three synthetic cathinones. In 2010, there were 560 reports from 29 states related to these substances registered in NFLIS and in the first two quarters of 2011 (January to June 2011) there were 391.

Based on reports to DEA from law enforcement and public health officials, synthetic cathinones are becoming increasingly prevalent and abused throughout the United States. At just one United States point of entry, the U.S. Customs and Border Protection (CBP) has encountered at least 96 shipments containing primarily mephedrone, methylone, and MDPV, as well as other synthetic cathinones like 4-MEC, butylone, fluoromethcathinone, and dimethylcathinone. Most of these shipments originated in China or India and were being shipped to destinations throughout the United States such as Arizona, Alaska, Hawaii, Kansas, Louisiana, Oklahoma, Oregon, Pennsylvania, Missouri, Virginia, Washington, and West Virginia. The American Association of Poison Control Centers, a non-profit, national organization that represents the poison control centers of the United States, reported that in 2010, poison control centers took 303 calls about synthetic cathinones. However, in just the first seven months of 2011, poison control centers have already received 4,137 calls relating to these products. These calls were received in poison control centers representing at least 47 states and the District of Columbia. Individual state poison control centers have also reported an increase in the number of calls regarding “bath salts” from 2009 to 2011.

Concerns over the abuse of these and other synthetic cathinones have prompted many states to control these substances. As of July 15, 2011, at least 33 states have emergency scheduled or enacted legislation placing regulatory controls on some or many of the synthetic cathinones. These states include Alabama, Arkansas, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Several countries including all members of the European Union have also placed controls on the possession and/or sale of one or more of these substances. Moreover, the use of synthetic cathinones by members of the U.S. Armed Forces is prohibited.

The risks to the public health associated with the abuse of mephedrone, methylone, and MDPV relate to acute and long term public health and safety problems. These synthetic cathinones have become a serious drug abuse threat as there have been reports of emergency room admissions and deaths associated with the abuse of these substances.

Clinical case reports indicate that these synthetic cathinones produce a number of stimulant-like adverse effects such as palpitation, seizure, vomiting, sweating, headache, discoloration of the skin, hypertension, and hyper-reflexia. Adverse effects associated with consumption of these drugs as reported by abusers include nose-bleeds, bruxism (teeth grinding), paranoia, hot flashes, dilated pupils, blurred vision, dry mouth/thirst, palpitations, muscular tension in the jaw and limbs, headache, agitation, anxiety, tremor, and fever or sweating. Consequently, numerous individuals have presented at emergency departments in response to exposure incidents and several cases of acute toxicity have been reported for the ingestion of mephedrone, methylone, or MDPV. In addition, case reports have shown that the abuse of synthetic cathinones can lead to psychological dependence like that reported for other stimulant drugs.

According to clinical case reports, investigative toxicological reports, and autopsy reports, mephedrone, methylone, and MDPV have been implicated in drug induced overdose deaths. In at least three reported deaths, one of these synthetic cathinones was ruled as the cause of death. Other deaths involved individuals under the influence of these synthetic cathinones who acted violently and unpredictably in causing harm to themselves or others. There have also been reports in the scientific literature of deaths caused by individuals who were driving under the influence of these synthetic cathinones.

A number of synthetic cathinones and their products, as identified by CBP and reported in the scientific literature, appear to originate from foreign sources. The manufacturers and retailers who make and sell these products do not fully disclose the product ingredients including the active ingredients or the health risks and potential hazards associated with these products. This poses significant risk to abusers who may not know what they are purchasing or the risk associated with the use of those products.

Available evidence on the overall health and social risks of mephedrone, methylone, and MDPV indicates that these substances can cause acute health problems, can potentially lead to dependency, or can cause death. The abuse of synthetic cathinones has been characterized by both acute and long term public health and safety problems and has resulted in deaths.

Based on the above data and information, the continued uncontrolled manufacture, distribution, importation, exportation, and abuse of mephedrone, methylone, and MDPV pose an imminent hazard to the public safety. DEA is not aware of any recognized therapeutic uses of these synthetic cathinones in the United States. A substance meeting the statutory requirements for temporary scheduling (21 U.S.C. 811(h)(1)) may only be placed in schedule I. Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and lack accepted safety for use under medical supervision. Available data and information for mephedrone, methylone, and MDPV indicate that these three synthetic cathinones have a high potential for abuse, no currently accepted medical use in treatment in the United States, and lack accepted safety for use under medical supervision.

This notice of intent initiates expedited temporary scheduling action and provides the 30-day notice pursuant to section 201(h) of the CSA (21 U.S.C. 811(h)). In accordance with the provisions of section 201(h) of the CSA (21 U.S.C. 811(h)), the Administrator has considered available data and information and has set forth herein the grounds for her determination that it is necessary to temporarily schedule three synthetic cathinones, 4-methyl-N-methylcathinone (mephedrone), 3,4-methylenedioxy-N-methylcathinone (methylone), and 3,4-methylenedioxypyrovalerone (MDPV) in Schedule I of the CSA to avoid an imminent hazard to the public safety.

Because the Administrator hereby finds that it is necessary to temporarily place these synthetic cathinones into Schedule I to avoid an imminent hazard to the public safety, any subsequent final order temporarily scheduling these substances will be effective on the date of publication in the Federal Register , and will be in effect for a period of up to 18 months pending completion of the permanent or regular scheduling process. It is the intention of the Administrator to issue such a final order as soon as possible after the expiration of 30 days from the date of publication of this notice. Mephedrone, methylone, and MDPV will then be subject to the regulatory controls and administrative, civil and criminal sanctions applicable to the manufacture, distribution, possession, importing and exporting of a Schedule I controlled substance under the CSA.

Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth specific criteria for scheduling a drug or other substance. While temporary scheduling orders are not subject to judicial review (21 U.S.C. 811(h)(6)), the regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions which conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877.

Under the authority vested in the Attorney General by Section 201(h) of the CSA (21 U.S.C. 811(h)), and delegated to the Administrator of the DEA by Department of Justice regulations (28 CFR 0.100), the Administrator hereby intends to order that 21 CFR Part 1308 be amended as follows:

This rulemaking is part of the series of rulemakings initiated by the Postal Regulatory Commission (Commission) to fulfill its responsibilities under the Postal Accountability and Enhancement Act (PAEA), Public Law 109-435, 120 Stat. 3198 (2006). The proposed rules described herein would establish reporting requirements for the measurements of level of service afforded by the Postal Service in connection with Stamp Fulfillment Services (SFS). The reporting of level of service is required by 39 U.S.C. 3652(a)(2)(B)(i) as part of the Postal Service's annual report to the Commission and supporting documentation. This is a necessary part of the Commission's implementation of a modern system of rate regulation for market dominant products that ensures service is not impaired as a result of the greater flexibility provided to the Postal Service under the PAEA in light of the price cap requirements. See 39 U.S.C. 3622 and 3651.

SFS provides the fulfillment of stamp and product orders received by mail, phone, fax, or Internet at the Postal Service's SFS center in Kansas City, Missouri. Orders can include stamps, stamped cards, envelopes, stationery, and other philatelic items. A fee is charged for order processing and handling.

On July 13, 2010, the Commission added SFS to the market dominant product list pursuant to a Postal Service request. 1 On June 16, 2011, the Commission granted a Postal Service request for a temporary waiver from reporting service performance for SFS until the filing date for the 2011 Annual Compliance Report. The Commission further asked the Postal Service to either file a request for a semi-permanent exception from reporting or begin the consultation process for establishing service standards (and measurement systems) prior to August 1, 2011. 2

By letter dated July 29, 2011, the Postal Service informed the Commission of its intent to institute an internal measurement system for SFS and asked for Commission comment. 3 The Postal Service proposed service standards, measurement methodologies, and reporting requirements. The Postal Service indicated that it will formalize its proposed service standards through a Federal Register notice.

On August 25, 2011, the Commission responded to the Postal Service request for comment. 4 The Commission concurred with the measurement approach that the Postal Service proposed and indicated that the Commission would initiate a rulemaking to make the Commission's reporting rules consistent with the Postal Service's reporting proposals.

The Postal Service proposes to measure the time from SFS order entry to the time a SFS order is placed on a mail truck manifest for entry into the mailstream. The transit time once an order is entered into the mailstream to delivery is not included as part of the SFS measurement.

A measurement starts when an order is entered into the National Customer Management System (NCMS). NCMS manages SFS inventory, general ledger, order history, and customer accounts.

A measurement ends when the order is logically closed out in the Automated Fulfillment Equipment System (AFES). 5 The AFES system interacts with NCMS and is utilized to fulfill orders.

The Postal Service's proposed service standards vary depending upon how a customer's order was received. 6 The Postal Service proposes the following three service standards.

• Internet Orders: Non-Philatelic/Non-Custom Less than or equal to 2 business days.

• Business Level Orders: Less than or equal to 5 business days.

• Philatelic/Custom and all Other Order Sources: Less than or equal to 10 business days.

For each of the three proposed service standards, the Postal Service proposes a service goal or target of achieving each service standard at least 90 percent of the time.

The Postal Service proposes to report the percentage of time that SFS meets or exceeds the applicable proposed service standard. The Postal Service also proposes to report service variances. Service variances will report the total percentage of orders fulfilled within the applicable service standard, plus the percentage that are fulfilled 1, 2, or 3 days late. Reporting is to be disaggregated by how a customer's order was received. Percentage on time and service variance reporting are to be provided to the Commission both on a quarterly and on an annual basis.

The Commission proposes to modify section 3055.65 to include a special reporting requirement for SFS. Section 3055.65 specifies the requirements for the periodic reporting (quarterly) of service performance achievements for special services, which includes SFS. 7

The special reporting requirement specifies that the Postal Service will report: (1) SFS on-time service performance (as a percentage rounded to one decimal place); and (2) SFS service variance (as a percentage rounded to one decimal place) for orders fulfilled within +1 day, +2 days, and +3 days of their applicable service standard.

Both items shall be disaggregated by customer order entry method. The Postal Service currently proposes three customer order entry methods: (1) Internet Orders: Non-Philatelic/Non-Custom; (2) Business Level Orders; and (3) Philatelic/Custom and all Other Order Sources. By generically referring to the three proposed methods as “customer order entry method,” the Postal Service is provided flexibility to propose other methods to the Commission for future implementation without requiring a rule change.

Pursuant to 39 U.S.C. 505, James F. Callow is designated as the Public Representatives in this proceeding to represent the interests of the general public.

Interested persons are invited to comment on the rules proposed in this rulemaking. Comments are due no later than 20 days after publication of this order in the Federal Register . Reply comments are due no later than 30 days after publication of this order in the Federal Register .

It is ordered:

1. The Commission proposes to amend its rules of practice and procedure by modifying the periodic reporting of service performance achievements for special services found in 39 CFR 3055.65.

2. Docket No. RM2011-14 is established to consider the above changes to the Commission's rules of practice and procedure.

3. Interested persons may file initial comments no later than 20 days after publication of this order in the Federal Register .

4. Interested persons may file reply comments no later than 30 days after publication of this order in the Federal Register .

5. Pursuant to 39 U.S.C. 505, James F. Callow is designated as the Public Representative in this proceeding to represent the interests of the general public.

6. The Secretary shall arrange for publication of this order in the Federal Register .

For the reasons discussed in the preamble, the Postal Regulatory Commission proposes to amend chapter III of title 39 of the Code of Federal Regulations as follows:

This proposal addresses the following local rule: Yolo-Solano Air Quality Management District Rule 2.41, Expandable Polystyrene Manufacturing Operations. In the Rules and Regulations section of this Federal Register , we are approving this local rule in a direct final action without prior proposal because we believe this SIP revision is not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.

This document extends the public comment period established in the Federal Register of July 12, 2011 (76 FR 40850) (FRL-8877-8). In that document, EPA proposed a SNUR for 14 glymes, designated proposed significant new uses for the 14 glymes, and asked for public comment on several topics. EPA requested comment on whether any of the chemical substances included in the identified glyme category are sufficiently dissimilar from the rest such that they should be removed from the category, or whether any additional chemical substances are sufficiently similar such that they should be added to the category. Comments were also requested on whether any of the additional unconfirmed uses listed in the proposed rule are actual ongoing uses in a consumer product, and whether there are any other ongoing uses in a consumer product of the other chemicals listed in the SNUR. EPA is hereby extending the comment period, which was set to end on September 12, 2011, to October 12, 2011.

To submit comments, or access the docket, please follow the detailed instructions as provided under ADDRESSES in the July 12, 2011 Federal Register document. If you have questions, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

The purpose of the hearing is to receive oral comments in response to a notice of proposed rulemaking (NPRM) proposing regulations that would require certain railroads to implement systems for telephonic notification of unsafe conditions at highway-rail and pathway grade crossings. See 76 FR 11992-12012 (March 4, 2011). Interested parties are invited to present oral statements and to proffer information and views at the hearing. The hearing will be informal and will be conducted by a representative designated by FRA in accordance with FRA's Rules of Practice (49 CFR 211.25). The hearing will be a non-adversarial proceeding; therefore, there will be no cross examination of persons presenting statements or proffering evidence. An FRA representative will make an opening statement outlining the scope of the hearing. After all initial statements have been completed; those persons wishing to make a brief rebuttal will be given the opportunity to do so in the same order in which the initial statements were made. Additional procedures, as necessary for the conduct of the hearing, will be announced at the hearing. A transcript of the discussions will be made part of the public docket in this proceeding.

Public Participation Procedures. Any person wishing to participate in the public hearing should notify the Docket Clerk by mail or at the address or fax number provided in the Attendance section of this notice at least five working days prior to the date of the hearing and submit three copies of the oral statement that he or she intends to make at the proceeding. The notification should identify the party the person represents, the particular subject(s) the person plans to address, and the time requested. The notification should also provide the Docket Clerk with the participant's mailing address and other contact information. FRA reserves the right to limit participation in the hearing of persons who fail to provide such notification. FRA reserves the right to limit the duration of presentations if necessary to afford all persons with the opportunity to speak.

In section 205 of the Rail Safety Improvement Act of 2008, Public Law 110-432, 122 Stat. 4872 (Oct. 16, 2008) (codified at 49 U.S.C. 20152) (hereinafter RSIA), Congress directed the Secretary of Transportation (Secretary) to issue a regulation, requiring railroads to establish a telephonic notification system for the public to report unsafe conditions at highway-rail and pathway grade crossings. While the statute vests certain responsibilities with the Secretary, those responsibilities have been delegated to the FRA Administrator. See 49 CFR 1.49(oo); 74 FR 26981 (June 5, 2009); see also 49 U.S.C. 103(g).

In an NPRM issued on March 4, 2011, FRA proposed various amendments to its regulations on grade crossing safety. The primary amendments proposed would require a railroad that dispatches a train through a public or private highway-rail or pathway grade crossing to establish and maintain a system that allows a member of the public to call the railroad and report an emergency or other unsafe condition at the crossing. Upon receiving such a report, the railroad may be required to warn all trains authorized to operate through the crossing of the reported unsafe condition, inform local law enforcement of the reported unsafe condition, and must either investigate the report itself or request that the railroad with maintenance responsibility for the crossing investigate the report. If the report is substantiated, the railroad with maintenance responsibility for the crossing would be required to take certain actions to remedy the condition found. The purpose of the hearing is to receive oral comments in response to the requirements related to a telephonic notification system as proposed in the NPRM.

FRA encourages all interested persons to participate in the hearing, at the addresse noted above. We encourage participants wishing to make oral statements to plan on attending the entire hearing, since FRA may not be able to accommodate competing requests to appear at specific times.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

(2) Any information on the biological or ecological requirements of the species, and ongoing conservation measures for the species and its habitat.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and regulations that may be addressing those threats.

(4) Current or planned activities in the areas occupied by the species and possible impacts of these activities on this species.

(5) Additional information regarding the threats in the five listing factors:

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

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

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; and

(e) other natural or manmade factors affecting its continued existence.

(6) What physical or biological features are essential to the conservation of the species.

(7) The reasons why areas should or should not be designated as critical habitat as provided by section 4 of the Act (16 U.S.C. 1531, et seq. ), including the possible risks or benefits of designating critical habitat, including vandalism, Phytophthora sp. being brought in by hikers and recreationists, collection of seeds and cuttings, and any other risks associated with publication of maps designating any area on which this plant may be located, now or in the future, as critical habitat.

(8) Specific information on:

(a) The amount and distribution of habitat for the Arctostaphylos franciscana;

(b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of this species, should be included in a critical habitat designation and why;

(c) Special management considerations or protection that may be needed in critical habitat areas, including managing for the potential effects of climate change; and

(d) What areas not occupied at the time of listing are essential for the conservation of this species and why.

(9) Information on the projected and reasonably likely impacts of changing environmental conditions resulting from climate change on Arctostaphylos franciscana and its habitat.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office 2800 Cottage Way, Room W-2605, Sacramento, California 95825 (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(3)(A) of the Act requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information that listing a species may be warranted, we make a finding within 12 months of the date of receipt of the petition on whether the petitioned action is: (a) Not warranted; (b) warranted; or (c) warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether any species is threatened or endangered, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. In this rule, we have determined that the petitioned action to list Arctostaphylos franciscana is warranted, and we are proceeding with publishing a proposed rule to list the species.

On December 23, 2009, we received a petition dated December 14, 2009, from the Wild Equity Institute, the Center for Biological Diversity, and the California Native Plant Society, requesting that Arctostaphylos franciscana be listed as endangered on an emergency basis under the Act and that critical habitat be designated. Included in the petition was supporting information regarding the species' taxonomy and ecology, historical and current distribution, present status, and actual and potential causes of decline. On January 26, 2010, we acknowledged the receipt of the petition in a letter to Wild Equity Institute. In that letter we responded that we had reviewed the information presented in the petition and determined that issuing an emergency rule temporarily listing the species as per section 4(b)(7) of the Act was not warranted. Our rationale for this determination was that, although only a single plant of this species remained in the wild, the individual had recently been transplanted to a new location on Federal land.

The transplanted plant is considered to be the single remaining plant in the wild, despite having been transplanted on the Presidio of San Francisco (the Presidio), a unit of the National Park Service's system, on the San Francisco peninsula. Additionally, a conservation plan (Chasse et al., 2009, pp. 1-44) and associated Memorandum of Agreement (MOA) (referred to herein as California Department of Transportation (Caltrans) et al. 2009) signed by five Federal and State wildlife and land management agencies (conservation partners), successfully addressed the concerns raised by the petition to the extent that none of those concerns constituted an “emergency posing a significant risk to the well-being of the species” (50 CFR 424.20(a)). The Federal agencies participating in these efforts were the National Park Service (NPS) and the Service. The State of California was represented by Caltrans and the California Department of Fish and Game (CDFG). The Presidio Trust, a wholly owned government corporation that jointly manages the Presidio with the NPS, also participated (71 FR 10608; March 2, 2006; NPS 2006).

The original habitat of the plant was threatened by the ongoing redevelopment of Doyle Drive, but that threat was removed by the translocation of the plant to a new location. Potential immediate threats applicable to the new location, including the danger that the plant might not survive the move and transplantation, were addressed by provisions in the conservation plan for collecting and propagating rooted clones, seeds, and cuttings from the original plant. The conservation plan provides for the long-term propagation, and eventual reestablishment in wild populations, of all remaining genetic lines, including those from the surviving wild plant and from individuals surviving in botanical gardens. It also includes long-term monitoring provisions. While these provisions did not remove the need for further review of the species' status, they appeared to be effective for protecting the species in the short term. We also indicated that we would make an initial finding in Fiscal Year 2010 regarding whether the petition presented substantial information to indicate that listing may be warranted. The 90-day finding was published on August 10, 2010 (75 FR 48294). This notice constitutes the 12-month finding on the December 23, 2009, petition to list Arctostaphylos franciscana as endangered.

Arctostaphylos franciscana was originally proposed for listing as an endangered species under the Act in 1976 (41 FR 24524; June 16, 1976). In 1980, it was included in the list of Category 1 candidates for listing, as one of the taxa retaining a high priority for addition to the list subject to confirmation of extant populations. At the time, the species was thought to be extinct in the wild although known to be extant in cultivation (45 FR 82480; December 15, 1980). It is included as a “species of concern” in the Recovery Plan for Coastal Plants of the Northern San Francisco Peninsula (Service 2003, p. 95). In October 2009, 62 years after the loss of the last known wild plants, one individual A. franciscana plant was located in the wild on the Presidio. The Presidio is under joint management by the Golden Gate National Recreation Area (GGNRA), a part of the NPS, and by the Presidio Trust. The A. franciscana plant is located in the portion of the Presidio that is managed by the Presidio Trust. The plant is considered to be wild because it has been moved to an undeveloped area of the Presidio that is managed as natural habitat. Although the plant is currently receiving care associated with its transplantation, it is not receiving the level of protection, water, and nutrients that plants in a botanical garden may receive.

The Arctostaphylos franciscana plants that exist in cultivation fall into three categories: (a) Cuttings and rooted specimens that were collected from the Laurel Hill Cemetery and transplanted to various managed botanical gardens in San Francisco, Berkeley, and Claremont prior to 1947; (b) specimens currently being propagated in greenhouses from cuttings and layers taken from the wild plant in 2010; and (c) specimens of unknown origin that are sold in the nursery trade or have been transplanted into home gardens. We consider the single wild plant and plants identified in (a) and (b) above to be the listable entity under the Act. Our rationale for not including plants identified in item (c) above is outlined below.

The Arctostaphylos franciscana plants found in botanical gardens may represent from one to six genetically distinct plants, other than the single wild plant (Vasey 2011b, pp. 2, 3; Chasse 2011a, p. 1; Chasse 2011b, p. 1; Chasse et al. 2009, p. 7) and may contribute genetic material in the form of cuttings for efforts to expand the number of wild plants. The botanical garden plants are not considered part of the wild population and, therefore, are not being addressed in this 12-month finding and proposed rule although they will be considered to be listed if this proposed rule becomes final. The cuttings and layers that were collected from the wild plant currently being propagated in greenhouses will be used to establish additional populations of the species by being planted with plants propagated from the botanical garden A. franciscana specimens. We have concluded that the third category of plants, those cultivated for private or commercial uses, will not aid in the conservation or the recovery of the species in the wild because cultivated plants may be hybrids and bred for landscape use and thus offer minimal conservation contribution.

Arctostaphylos franciscana is a low, spreading-to-ascending evergreen shrub in the heath family (Ericaceae) that may reach 0.6 to 0.9 meters (m) (2 to 3 feet (ft)) in height when mature (Chasse et al. 2009, p. 5). Its leaves are about 1.5 to 2 centimeters (cm) (0.59 to 0.79 inches (in)) long, are isofacial (have the same type of surface on both sides), and are oblanceolate (longer than they are wide and wider towards the tip) (Eastwood 1905, p. 201; Chasse et al. 2009, p. 39). Its mahogany brown fruits are about 6 to 8 millimeters (mm) (0.24 to 0.32 in) wide, while its urn-shaped flowers measure about 5 to 7 mm (0.2 to 0.28 in) long (Wallace 1993, p. 552; Service 2003, p. 57).

A closely related species, Arctostaphylos montana ssp. ravenii (Raven's manzanita), listed as federally endangered, looks similar but has a more prostrate growth habit, more rounded leaves, smaller and less reddish fruits, and smaller and more spherical flowers (Service 2003, pp. 55, 57). Another somewhat similar appearing species, though not as closely related, is A. uva-ursi (bearberry), which can be distinguished by its lack of isofacial leaves (Chasse et al. 2009, p. 39).

In the wild, Arctostaphylos franciscana is an obligate-seeding species (it reproduces primarily from seed after a fire or other disturbance rather than from burls) (Vasey 2010, p. 1). Arctostaphylos species are members of the chaparral plant community, which have a variety of triggers for seed germination including heat, smoke, and light (Keeley 1987, p. 434). The germination requirements for A. franciscana have not yet been studied; however, other Arctostaphylos species have germinated after being exposed to charate (ground charred wood) (Keeley 1987, pp. 435, 440).

The seeds of Arctostaphylos are dispersed primarily by mammals, including coyotes, foxes, and rodents (T. Parker pers. comm., 2011; Vasey 2011a, p. 1). Animals such as coyotes and foxes eat the Arctostaphylos fruit and may travel long distances before depositing their scat. Any undigested fruit left in the scat can then be harvested by rodents and either eaten or buried. Parker (2010b, p. 1) found that 70 percent of the fruits buried by rodents were located deeper than 2 centimeters (cm) (0.78 inch (in)), which is the maximum soil depth at which seeds are typically killed by wildfire.

At one point Arctostaphylos franciscana and A. montana ssp. ravenii, along with A. montana ssp. montana (Mount Tamalpais manzanita), were considered to be subspecies of A. hookeri (Hooker's manzanita). However, recent taxonomic revisions have established A. montana ssp. ravenii and A. franciscana as separate species. These revisions have been based primarily on genetic comparisons, including the fact that A. franciscana is diploid (with 13 pairs of chromosomes) while A. montana ssp. ravenii is tetraploid (with 26 chromosome pairs) (Service 2003, p. 95; Parker et al. 2007, pp. 149, 150; Chasse et al. 2009, p. 6).

Known historical occurrences and collections of Arctostaphylos franciscana are from serpentine maritime chaparral, a plant community dominated by Arctostaphylos (manzanita) and Ceanothus (California lilac) species, on the San Francisco Peninsula. This area is part of a region that Willis Linn Jepson named the Franciscan Area, one of 10 areas that he considered to have the highest concentration of endemic plant species in California (Jepson 1925, pp. 11-14). An endemic species is one that is native to and restricted to a particular geographical area. Native habitats have been largely converted to urban areas of the City of San Francisco and habitat that might support A. franciscana is now mostly lost to development (Chasse 2010, p. 2; Gluesenkamp 2010, p. 7).

Chasse (2009, pp. 6, 7) has noted that information on the plant community that historically included Arctostaphylos franciscana is largely missing from the literature. Early records describe the species as growing “on rocky ground” (Eastwood 1905, p. 202), on “bare, stony bluff” (Brandegee 1908, as cited in Chasse 2009, p. 6) and with coast live oak ( Quercus agrifolia ), coast blue blossom ( Ceanothus thyrsiflorus ), and coyote brush ( Baccharis pilularis ) (Wieslander 1938, cited in Service 2003, p. 95). Arctostaphylos franciscana was also observed “forming flat masses over serpentine outcroppings and humus-filled gravel and flopping down over the sides of gray and chrome rocks. Ericameria, Baccharis, Ferns, Buckwheats, and Golden Yarrow grow among it; and over it stand Toyons and Live Oaks.” Additionally, A. montana ssp. ravenii was found at nearly all A. franciscana locations. These observations, along with the geology and climate of historical sites, indicate that the species' community likely consisted of a mosaic of coastal scrub, barren serpentine maritime chaparral, perennial grassland, with occasional woodland of coast live oak and toyon shrubs and small trees (Chasse 2009, pp. 6, 7).

Parker (2007, pp. 8-11) examined the prehistoric distribution of Arctostaphylos in California and the geologic changes that helped lead to the number and location of Arctostaphylos species present today. Arctostaphylos evolved at least 15 million years ago during the Miocene epoch, corresponding with an earlier period of global warming; however, only during the last 1.5 million years have large numbers of new fossil types of the genus appeared. Currently there are at least 95 species and subspecies of Arctostaphylos within California. The large number of species is thought to be a response to significant changes in climate and physical geography that occurred approximately 1.5 million years ago. Tectonic changes in the landscape resulted in a diversity of new niches that selected for new species. Additionally, glacial advances and retreats during the last 2 million years have impacted the distribution of plants as well as created two possible paths of Arctostaphylos evolution.

One potential path is that populations of Arctostaphylos species moved in response to climatic changes but also left behind remnant populations of formerly more widespread species that persisted in isolated areas. Secondly, new species could have resulted from hybridization between rapidly migrating species and the remnant populations of other Arctostaphylos species. The San Francisco Bay area was a forested river valley during the last glacial period. At the end of the last glacial period, the climate became warmer and drier, and conditions became more favorable for Arctostaphylos. The area from San Francisco Bay to Monterey now contains 42 species or subspecies of Arctostaphylos, 32 of which are narrow endemics. Researchers have accepted that the obligate-seeder life history also promotes a more rapid rate of speciation in contrast to the vegetative regeneration of burl-sprouting species (Wells 1969, p. 264), which is evidenced by the fact that nearly all of the 32 narrow endemics in the San Francisco Bay to Monterey area are obligate-seeders.

Arctostaphylos franciscana is considered to be endemic to the San Francisco peninsula, California, and historically occurred in areas with serpentine soils and bedrock outcrops, greenstone, and mixed Franciscan rock, typically growing in mixed populations with A. montana ssp. ravenii (Service 2003, pp. 95, 96; Chasse et al. 2009, p. 6). The Doyle Drive site was comprised of disturbed soil over serpentinite (Chasse et al. 2009, p. 3). Serpentine soil restricts the growth of many plants due to its high nickel and magnesium concentrations, and thus tends to support unique plant communities (Brooks 1987, pp. 19, 53; Service 2003, p. 16) because relatively few plant species can tolerate such soil conditions. Such conditions generally result in semibarren soil and a lack of competing plants that benefits serpentine-tolerant plants such as A. franciscana (Bakker 1984, p. 79).

The coastal upland habitat of Arctostaphylos franciscana is influenced by cool, humid conditions and frequent summer fog. The serpentine chaparral plant community, of which A. franciscana is a part, may have been present historically in the southeastern portion of the San Francisco area (for example, in Potrero Hill, Bayview Hill) but the cumulative effects of burning by native Americans, grazing during the Spanish/Mexican period and later, more grazing and gathering of firewood during the U.S. military period may have converted the maritime chaparral to grassland or depauperate coastal scrub (Chasse 2010, p. 2). Prior to 1947, A. franciscana was known from three locations: the Masonic and Laurel Hill Cemeteries in San Francisco's Richmond district, and Mount Davidson in the south-central part of San Francisco (Service 2003, pp. 16, 62, 95; Chasse et al. 2009, p. 4). Unconfirmed sightings were also noted at a possible fourth location near Laguna and Haight Streets. By 1947, the Masonic and Laurel Hill Cemetery sites were removed and the grounds destroyed in preparation for commercial and urban development (Chasse et al. 2009, p. 7). The Mount Davidson and the Laguna and Haight Streets locations were lost to urbanization as well. Until October 2009, A. franciscana had not been seen in the wild since 1947 (Chasse et al. 2009, pp. 3, 7), although no systematic surveys are known to have taken place to search for potential remaining individuals (Chasse 2010, p. 1).

Between 1930 and 1947, prior to the loss of the wild plants, botanists collected cuttings and rooted specimens from confirmed wild Arctostaphylos franciscana plants representing possibly one to six distinct individuals, and propagated them in botanical gardens (Vasey 2011b, p. 2; Chasse 2011a, p. 1; Chasse 2011b, p. 1; Service 2003, p. 96; Chasse et al. 2009, p. 7). The number of distinct individuals depends on whether more than one of the botanical garden specimens were started from cuttings of the same individual (which would mean multiple plants would have identical genotypes) or whether all the specimens originated from separate plants (in which case all the specimens would have different genotypes) (Vasey 2011b, pp. 2, 3; Chasse 2011a, p. 1; Chasse 2011b, p. 1). Genotype is defined as the genetic constitution of an individual.

Accession records for the botanical garden specimens indicate that some specimens collected and planted prior to 1947 did not survive and that others are duplicates of original collections leaving only three specimens confirmed to have been original plants transplanted from Laurel Hill (Chasse 2011b, p. 1). Further genetic work will verify whether plants with differing morphological features prove to be additional A. franciscana individuals. Although some of the botanical garden specimens may have different genotypes, which is the result of sexual reproduction (sprouting from seed) rather than clonal reproduction, all of the botanical garden specimens are currently considered to be A. franciscana until further genetic work can be conducted. The number of existing distinct individuals cannot currently be determined because a suitable genetic sampling technique has not yet been developed (Chasse 2011a, p. 1). Modern collections of this plant at East Bay Regional Park District's Botanical Garden at Tilden Regional Park, Strybing Arboretum, Rancho Santa Ana Botanic Garden, Claremont, and UC Berkeley Botanical Garden include some of the original specimens from Laurel Hill, as well as specimens propagated vegetatively after the species was thought to have been extinct in the wild (Chasse et al. 2009, pp. 6-8).

In October 2009, an ecologist identified a plant growing in a concrete-bound median strip along Doyle Drive in the Presidio as Arctostaphylos franciscana (Chasse et al. 2009 pp. 3, 4; Gluesenkamp 2010, p. 7). The plant's location was directly in the footprint of a roadway improvement project designed to upgrade the seismic and structural integrity of the south access to the Golden Gate Bridge (Caltrans et al. 2009, p. 1; Chasse et al. 2009, p. 10). The identification of the plant as A. franciscana has since been confirmed with 95 percent confidence based on morphological characteristics (Chasse et al. 2009 pp. 3, 4; Vasey and Parker 2010, pp. 1, 5). Additional tests of ploidy level indicate that the plant is diploid, consistent with A. franciscana (Vasey and Parker 2010, p. 6). Molecular genetic data also indicate that the plant is A. franciscana (Parker 2010a). Based on the best available scientific information, we consider the individual found along Doyle Drive in October 2009 to be A. franciscana (Vasey and Parker 2010, pp. 1, 5-7

Several agencies, including the Service, established an MOA and conservation plan for the species (see Previous Federal Actions section above). The conservation partners concluded that leaving the plant undisturbed at its original site would compromise public safety and cultural resources by the potential curtailment or redesign of the roadway improvement project (Chasse et al. 2009, pp. 9, 10).

The conservation plan evaluated potential translocation sites, established procedures for preparation of the new site and for the translocation itself, and called for management and monitoring (both short- and long-term) of the translocated plant and all newly propagated plants, with the goal of eventually establishing self-sustaining populations of the species in the wild (Chasse et al. 2009, pp. 23-27, 29-30). Following recommendations in the conservation plan, the Arctostaphylos franciscana plant was moved successfully to a new site within the Presidio in January 2010. Subsequent monitoring reports indicate the translocated plant continues to do well at its new location (Yam 2010, pp. 1, 3-14, Young 2010a, p. 1).

Cuttings from the plant, both from nonrooted stems and from layering stems (stems that have rooted at their leaf nodes), were taken for vegetative propagation prior to its translocation in January 2010 (Chasse et al. 2009, pp. 10-16, 40-42, Young 2010a, p. 1). This material was distributed to seven locations including UC Berkeley Botanic Garden, Regional Parks Botanic Garden, UC Santa Cruz Botanical Garden, San Francisco Botanical Garden, Cal Flora Nursery, Presidio Nursery, and the Presidio Trust Forester (Young, 2011). A total of 1,346 seeds were collected in July and August, 2010, from the plant (Young 2010a, p. 1; Frey 2010, p. 1).

The plan calls for eventual propagation of seeds (including seeds collected from the soil around the plant's original location), and for genetic testing of resulting plants. Seeds fertilized in the wild could result from cross-pollination by pollen from another individual Arctostaphylos franciscana or a closely related species and would produce a genetically unique individual (Chasse et al. 2009, p. 13). Additionally, because the roots of most Arctostaphylos individuals establish a mutually beneficial association with species of mycorrhizal fungi living in the soil, the conservation plan established means by which the soil for propagating cuttings and seeds should be inoculated with spores from such fungi (Chasse et al. 2009, p. 9). Propagation of A. franciscana seed and inoculation of seeds and cuttings by mycorrhizal fungi have not yet occurred. Soil surrounding the wild plant is being examined for presence of a seedbank but no A. franciscana seed has yet been found (Young 2011, p. 1). Propagation methods for A. franciscana seed will be developed using seed of a surrogate species, A. montana ssp. montana, which was collected from Mount Tamalpais in 2010 (Young 2011, p. 1). Outplanting of two rooted A. franciscana cuttings took place at the UC Santa Cruz Arboretum in January 2011 (Kriegar 2011, unpaginated)

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

In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to that factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat and, during our review, we attempt to determine how significant a threat it is. The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined in the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that these factors are operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the Act.

All known habitat originally occupied by Arctostaphylos franciscana has been lost to urban development (Chasse et al . 2009, pp. 4, 7). The range of the species is now limited to a single transplanted plant on the Presidio. In January 2010, after the newly discovered wild plant was moved to the Presidio, the plant's habitat at Doyle Drive was destroyed as part of a Caltrans highway improvement project. The loss of the plant's native serpentine chaparral habitat to development and the curtailment of the species' range restrict the species' current and future ability to naturally reproduce and expand its range.

The remaining area of potential habitat for the species on the San Francisco peninsula has not yet been determined but is very limited as a result of past urban development. Although areas of greenstone or serpentine soils remain on the peninsula, the residual effects of urbanization (primarily habitat fragmentation and degradation) have resulted in reducing the remaining greenstone/serpentine soils into areas of about 0.4 hectare (ha) (1 acre (ac)) or less in size with some up to 2.4 ha (6 ac). These small remnant areas may no longer be suitable for reestablishment of A. franciscana due to factors such as dominance by other plant species (Chasse pers. comm., 2011). Currently, these small, isolated parcels are subject to “edge effects” such as increased invasion of weed species that would compete with A. franciscana for limited resources (water, nutrients, space).

Small isolated parcels have also been shown to be dryer than larger parcels and the habitat on these smaller parcels has become desiccated due to lack of surrounding vegetation, thus potentially leading to increased plant stress (Murcia 1995, p. 58). Urban barriers such as streets and buildings have been found to impose a high degree of isolation on chaparral species and to result in trends for decreased numbers of native plant species and concurrent increased numbers of nonnative plant species in habitat fragments over time (Soule et al. 1992, pp. 41-43); Alberts et al. (unpubl.) as cited in Soule et al. 1992, p. 41). These effects of the urbanization of the San Francisco peninsula are expected to continue to affect these remnant parcels into the future and to pose a threat to establishment of additional A. franciscana.

Additionally, nitrogen deposition poses a current and continuing threat to remnant habitat that might otherwise be found to be suitable for Arctostaphylos franciscana . Weiss and Luth (2003, p. 1) have conducted research on the effects of nitrogen deposition in a serpentine grassland south of the San Franciscan peninsula, which has bearing on threats to A. franciscana . Weiss and Luth found that nitrogen deposition from automobiles on Highway 280 was responsible for higher nitrogen levels in the soil within 400 m (1,312 ft) on the west side and 100 m (328 ft) on the east side of the roadway. Grass cover was higher in these areas. Native species within this zone are thought to be at long-term risk from invasions of nitrogen-loving grasses and other weedy plant species. The entire northern San Francisco peninsula, with the exception of the Presidio and Golden Gate Park, has been urbanized, and four major highways travel across the peninsula (Highways 1, 101, 280, and 480). Urban areas and roadways are a continuous source of nitrogen deposition from automobiles, trucks, and industrial and home heating (Weiss 1999, p. 1477). Invasions of nitrogen-loving plants into nitrogen-limited grasslands and shrublands appears to be a common response to atmospheric nitrogen deposition (Weiss and Luth 2003, p. 1) and may partly explain why the ecosystem that existed on the San Francisco peninsula has been so altered.

The one remaining wild plant is subject to multiple threats. The Presidio Trust's Vegetation Management Plan provides for the protection and management of rare plants on the Presidio (further discussed in Factor D ). However, in some cases when the Trust has acted as a project proponent on the Presidio, direct project impacts to federally listed species and their habitat have resulted. For example, actions by the Presidio Trust and NPS related to management and remediation of former Army landfills on the Presidio have impacted federally listed plant species, including the Lessingia germanorum (San Francisco lessingia), and their habitat. Remediation of a large landfill near the transplanted Arctostaphylos franciscana plant is ongoing (M. Frey, pers. comm., 2011a) and has the potential to impact the plant and its habitat due to their close proximity to the remediation site. The remaining remediation activities involve the use of heavy equipment to complete final recontouring and to bring in soil to the site, followed by installation of plants, and restoration of original habitat features at the landfill (Presidio Trust 2011a, p. 2, M. Frey, pers. comm., 2011b).

We are not aware of any specific proposals by the Presidio Trust for other activities in or near the habitat of the remaining wild A. franciscana plant. However, the Presidio Trust Act contains a sunset clause that could result in the transfer of Presidio holdings to the General Services Administration for disbursement, if the Trust operations are not self-sufficient by 2013. The Presidio Trust Act is discussed under Factor D below; however, the potential that lands could be transferred and become available for development presents a threat that additional habitat loss could occur within the foreseeable future.

Based on the best scientific and commercial information available, we consider the present or threatened destruction, modification, or curtailment of the species habitat or range to be a high-magnitude and ongoing (imminent) threat to the wild population of Arctostaphylos franciscana. The current fragmented and degraded condition of most remaining serpentine/greenstone soil habitat on the San Francisco peninsula threatens the ability of the species to expand its range. The threats of possible development and change in management of the habitat may further limit the species' propagation and expansion, and could potentially threaten the only remaining wild plant in the foreseeable future.

Overutilization of the species is possible due to the popularity of Arctostaphylos franciscana for landscape use, as evidenced by the widespread use of cultivars of this species in the commercial nursery trade. Arctostaphylos franciscana is specifically recommended for use in erosion control on steep slopes (Theodore Payne Foundation 2009, p. 1; Sierra Club 2011, p. 1).

The attention and media coverage generated by the discovery of a species thought to be extinct may result in efforts by the public to visit the plant and possibly collect cuttings or seed. Although the location of the transplanted plant has not been disclosed, it was planted in a heavily used area in the Presidio near common-use trails with unrestricted access by the public. The Presidio is a National Park and is part of the Golden Gate National Recreation Area; the Presidio is open to the public 24 hours a day, every day of the week and receives 5 million visitors annually. Because of the Presidio's proximity to the City of San Francisco and because the Park has no entrance fees and contains restaurants, trails, and businesses that can be accessed by car, foot, or public transport, it receives heavy use. The Presidio Trust and NPS are making serious efforts not to disclose the location of the translocated plant. The Presidio Trust and NPS are concerned that public knowledge of the plant's location would lead to authorized and unauthorized group tours by plant enthusiasts that would overwhelm the Arctostaphylos franciscana and compact the soil (T. Thomas, pers. comm., 2011).

No damage to the plant has been observed to date; however, trampling or the taking of cuttings could occur if the identification and location of the plant become known. Similarly, another extremely rare plant, Arctostaphylos montana ssp. ravenii is also located on the Presidio. Its location has not been revealed to the public by NPS in order to protect the plant from vandalism although it was federally listed as endangered in 1979.

Based on the best scientific and commercial information available, we consider the overutilization for commercial and recreational purposes to be a high-magnitude and ongoing (imminent) threat to wild Arctostaphylos franciscana plants. Although captively propagated A. franciscana are available to residents for use in private gardens, collection of wild individuals is a threat to the species, and we expect it may be a threat in the foreseeable future, particularly if the location of the plant becomes known to the public.

Transplantation of the single wild Arctostaphylos franciscana plant may have caused stress to the plant, and thereby made the plant more susceptible to predation and disease. In this case, stress and root damage may result from a number of sources including compaction of soil from foot traffic around the plant (Hammitt and Cole 1998, p. 52), too little or too much water, and improper planting depth. A fungal infection called twig blight is also a potential concern, particularly during wet years (Service 2003, p. 69). Some twig blight was observed in the wild plant during winter of 2009-2010, but it subsided during the dry summer months (Chasse 2010, p. 2).

The soil-borne pathogen, Phytophthora cinnamomi, has long been known as a world-wide threat to commercial and ornamental plants. Phytophthora cinnamomi is a fungus-like organism most closely related to diatoms and kelp (Kingdom Stramenopila) rather than to the true fungi (Kingdom Fungi or Eumycota). It is an introduced exotic pathogen in North America whose native range is unknown, but is suspected to be southeast Asia. Human-related activities, including the international plant trade have facilitated spread of P. cinnamomi into many habitats worldwide (Swiecki et al. in press, p. 3). Phytophthora cinnamomi was introduced to California early in the 20th century and recently has been identified as a serious threat to the State's native plants and their habitats (Swiecki et al. in press, p. 3).

Phytophthora cinnamomi has been the cause of the decline and death of rare Arctostaphylos species, including the federally threatened A. pallida (pallid manzanita) in the Oakland Hills of the East San Francisco Bay region, and federally threatened A. myrtifolia (Ione manzanita) near Ione in the Sierra Nevada foothills, and of other woody native species in the San Francisco Bay area (Swiecki et al. in press, pp. 3-5). This organism causes root decay but can also kill above-ground portions of some plants (Swiecki et al. in press, p. 3). Phytophthora cinnamomi is persistent in soil, and once introduced to native habitat, it cannot be eradicated (Swiecki et al. in press, p. 3). Phytophthora cinnamomi is transmitted by contaminated shoes, tools, and infested soil clinging to tires, and by using contaminated nursery stock, including native plant stock. Many areas showing plant mortality caused by P. cinnamomi are associated with hiking trails, landscaping with ornamental plants, and, in one case at the Apricum Hill Preserve, with use by visitors including researchers, agency personnel, and students (Swiecki et al. in press, p. 4).

This pathogen poses a significant threat in the foreseeable future to A. franciscana through the potential for infestation by the public and by staff who regularly work with the plant. It is not possible to predict when the pathogen might infect the single plant since the disease is generally transmitted directly or indirectly by humans or human activity. The pathogen could be introduced from soil on contaminated shoes and tools, or from cuttings of A. franciscana plants that are currently being grown in a number of nurseries in the San Francisco Bay area that could become contaminated. Swiecki et al. (in press, p. 6) tested A. menziesii plants purchased from four nurseries and found them to be infested with four Phytophthora species that cause root infections or stem cankers, including P. cinnamomi. Crown rot, which is caused by P. cinnamomi, is known to occur in A. myrtifolia and A. viscida (Swiecki et al. in press, p. 3), and is a concern when outplanting nursery-grown plants to wild locations (Chasse et al. 2009, p. 17). However, crown rot has not been observed in the wild plant (Chasse 2010, p. 2).

Arctostaphylos franciscana cuttings are proposed to be planted with the transplanted A. franciscana to facilitate cross-pollination of the different genotypes. Should the wild plant become contaminated with P. cinnamomi, the result would be the decline and death of the wild plant and the permanent contamination of the soil and seedbank beneath the plant. Any seedlings that germinate from this seedbank would also very likely be contaminated and not survive. Any cuttings that become contaminated will also die of the pathogen. The Golden Gate National Parks Conservancy staff in charge of propagation and care of A. franciscana cuttings are aware of the threat of contamination and rigorously follow clean procedures to prevent infection to the cuttings or the wild plant; however, a risk of contamination continues to exist because current fungicides do not eradicate 100 percent of Phytophthora spores (Young 2010b, p. 1). The cuttings and layers have been dispersed to seven different locations and growers, which, while decreasing the risk of complete loss of plant material, also increases the risk of exposure to disease.

After being transplanted, the wild plant became severely infested with the larvae of a native leaf roller moth ( Argyrotaenia franciscana ) (Estelle 2010, p. 1). Treatment for the infestation was hand removal of the larvae and all infected leaves, which resulted in the removal of some of the new growth on the plant (Young 2010a, p. 1; Estelle 2010, p. 1). A parasitic wasp emerged from one leaf roller moth larva that had been captured, indicating that the moth has natural enemies (M. Frey 2010, p. 2). The moth has not been known to kill plants and does not appear to be a serious threat at this time; however, the moth species was found to have five overlapping generations in a year (Estelle 2010, p. 1), so monthly removal of moth larvae and pupae is planned (Frey 2010, p. 2). The leaf roller moth infestation in early 2010 did not permanently damage the plant; new growth has been observed, and the plant began blooming in November 2010 (Frey 2010, p. 2).

We conclude that the best scientific and commercial information available indicates that Arctostaphylos franciscana is threatened by disease and predation. We consider predation to be a relatively minor (low magnitude) but ongoing (imminent) threat to the wild population of the species. Although the leaf roller moth has not been known to kill Arctostaphylos species, the moth produces five overlapping generations per year and severely damaged the leaves in 2010. We consider infection of the plant by P. cinnamomi to be a high-magnitude and ongoing (imminent) threat to A. franciscana because only one plant occurs in the wild and the disease is easily and quickly spread by multiple vectors.

Regulatory mechanisms protecting Arctostaphylos franciscana derive primarily from the location of the single known wild plant on Golden Gate National Recreation Area lands on the Presidio, which are administered by the Presidio Trust. The Presidio Trust was established by the Presidio Trust Act of 1996 to manage the leasing, maintenance, rehabilitation, repair, and improvement of property within the Presidio (Presidio Trust Act, as amended, Section 104(a)). The Presidio Trust is directed to preserve the natural, scenic, cultural, and recreational resources on the Presidio, but also is directed to ensure that the Presidio becomes financially self-sufficient by 2013 (Presidio Trust 2002, pp. 1, 2, 12). The Presidio Trust Act directed that the Presidio Trust design a management program to reduce expenditures of the NPS and increase revenues to the Federal Government to the maximum extent possible (Presidio Trust Act, pp. 5, 6). The Presidio Trust Management Plan was published in May 2002.

Federal regulations at the Presidio, which offer some protection to Arctostaphylos franciscana, include regulations that prohibit disturbing, injuring, removing, possessing, digging, defacing, or destroying from its natural state, any plant or parts thereof. Unauthorized introduction of plants and plant seeds is also prohibited, offering limited protection against invasive nonnative species. Additional regulations require that special events be permitted by the Trust, and provide for restricting visitor use to address resource conflicts (36 CFR, part 1002).

The Presidio Trust and the NPS have developed a Vegetation Management Plan for the Presidio. For special status plants, the plan provides an objective to preserve and enhance rare plant habitats by evaluating species-specific habitat needs and giving high priority to actions that preserve and enhance those habitats (Presidio Trust 2001, Chapter 3, unpaginated).

Future management of the Presidio, and of Arctostaphylos franciscana and its habitat, are uncertain because of differences in the missions of the Presidio Trust and NPS. The Presidio Trust is a new model for National Park management in that the Trust is directed to preserve the natural, scenic, cultural, and recreational resources on the Presidio, and at the same time ensure that the Presidio becomes financially self-sufficient by 2013 (Presidio Trust 2002, pp. 1, 12), which means that generation of revenue is a consideration for its activities as well as resource protection. The cost of operation and care are higher for this park than for most National Parks because of the Presidio's large number of structures and cultivated landscapes (Presidio Trust 2011, unpaginated). In 2002, the Trust adopted a management program designed to reduce expenditures of the NPS and to increase revenues to the Federal Government to the maximum extent possible (Presidio Trust 2002, p. 1; Presidio Trust Act, as amended 2001, p. 6). The mission of NPS on the Presidio as stated in the Golden Gate National Recreation Area Act (16 U.S.C. 460bb), although similar to the Presidio Trust Act regarding the protection of natural, historic, scenic, and recreational values, does not include the mandate to ensure that the Presidio becomes financially self-sufficient.

The future status of the Presidio as National Park land is uncertain, as explained in the Presidio Trust Act, Section 104(o) Reversion, which states: If, at the expiration of 15 years, the Trust has not accomplished the goals and objectives of the plan required in section 105(b) of the Presidio Trust Act, then all property under the administrative jurisdiction of the Trust pursuant to section 103(b) of this Act shall be transferred to the Administrator of the General Services Administration to be disposed of in accordance with the procedures outlined in the Defense Authorization Act of 1990 (104 Stat. 1809) and any real property so transferred shall be deleted from the boundary of the Golden Gate National Recreation Area. In the event of such transfer, the terms and conditions of all agreements and loans regarding such lands and facilities entered into by the Trust shall be binding on any successor in interest (Presidio Trust Act, Section 104(o), p. 9). This clause indicates that lands currently considered National Parks lands could be disbursed to the private sector and subject to development within the near future.

The Presidio Trust is subject to section 7 consultation under the Act, which would confer protections to the plant should it be listed under the Act. For example, actions by the Presidio Trust and NPS related to management and remediation of former Army landfills on the Presidio have impacted federally listed plant species including the federally endangered Lessingia germanorum (San Francisco lessingia) and federally endangered Clarkia franciscana (Presidio clarkia). Because those plant species are federally listed, the Presidio Trust has consulted with the Service to minimize such impacts. Arctostaphylos franciscana does not currently have these protections.

The species is not listed under the California Endangered Species Act. The conservation plan and MOA are not regulatory in nature, and are not legally enforceable by third parties (Caltrans 2009, p. 8; Chasse et al. 2009, p. 3), limiting their usefulness in enforcing protections for the plant. Although general protections are provided for plants on National Parks, existing regulatory mechanisms are inadequate to protect the last known wild specimen of Arctostaphylos franciscana, or any other such wild specimens that may be established or found to exist.

Based on the best scientific and commercial information available, we consider the inadequacy of existing regulatory mechanisms to be a threat of moderate-to-low magnitude to the species. We expect this threat to continue into the future unless the species is listed under the Act, and thus we consider the threat to be ongoing (imminent).

Potential threats to the species include changes in environmental conditions resulting from climate change, trampling, or disturbance by people visiting the Presidio, change in fire frequency, loss of genetic diversity, and stochastic (chance) events.

Changes in environmental conditions resulting from climate change may cause presently suitable habitat to become unsuitable for endemic California plants in general, due to projected changes in temperature and rainfall (Loarie et al. 2008, pp. 1-2). A U.S. Geological Survey (USGS) study in National Park lands in northern California and Oregon is being conducted to examine trends in climate, ocean conditions, and other features (Madej et al. 2010, p. 7). In these National Park lands, variation in abiotic factors (for example, precipitation, fog, and air and ocean temperatures) regulates many ecological processes, including the distribution of vegetation and frequency of disturbance from fires, floods, landslides, and pest species. The preliminary results of the USGS study show an increase in average maximum summer air temperatures at Golden Gate National Recreation Area, located near the Presidio, and a reduction statewide in fog frequency (Madej et al. 2010, p 24; Johnstone and Dawson, 2010, p. 4535).

Summer fog is important to upland coastal vegetation and partly determines the distribution of coastal species (Johnstone and Dawson 2010, p. 4533). Besides serpentine soil and cool air temperatures, (Parker 2010c, p. 1), summer fog is one of the primary habitat requirements for Arctostaphylos franciscana (Vasey 2010, p. 1). Summer fog results from the presence of two phenomena that may be affected by changes in environmental conditions resulting from climate change: Upwelling of cold, coastal ocean water and a temperature inversion of hot air flowing toward the ocean over a cool, humid marine air layer below (Vasey 2010, p. 1; Johnstone and Dawson 2010, p. 4533). Fog reduces sunlight and air temperature, and raises humidity. Summer fog provides a source of water for plants, including Arctostaphylos species, by condensing in the plant canopy and falling directly as water to the soil and being taken up by the plant's roots or by being taken up directly by leaves (Johnstone and Dawson 2010, p. 4533; Vasey 2010, p.1).

Fog frequency is highest in north and central California and declines in Oregon and Southern California. Mean fog frequency in the California region, quantified by cloud ceiling height measured at airports, has decreased since 1951 (Johnstone and Dawson 2010; p. 4535). Research by Vasey suggests that most coastal endemic Arctostaphylos species are more vulnerable to drought stress than those found in interior California and could be threatened by a decrease in coastal summer fog (Vasey 2010, p. 1). Vasey has found that obligately seeding Arctostaphylos species, such as A. franciscana, are better hydrated in areas that receive fog. He also found that obligately seeding species are more vulnerable to vascular cavitation (air bubbles forming in water vessels in the plant) when the rate of evapotranspiration of water through the leaves becomes too great (Vasey 2010, p. 1). This disruption of water flow can lead to branch death and possible death of the entire plant (Vasey 2010, p. 1).

Reduced soil moisture from loss of summer fog may also result in a reduction of seed germination and seedling survival. Additionally, the ability of A. franciscana to track future climate changes by establishing new plants in new habitat may be limited because of its association with serpentine and greenstone bedrock outcrops (Service 2003, pp. 95, 96) and because remaining soils derived from serpentine and greenstone bedrock on the peninsula are limited in area and largely fragmented (Chasse 2010, p. 1). If the trend towards a warmer, drier climate continues as shown in data from Madej et al. (2010, p. 24) and Johnstone and Dawson (2010, p. 4535), the climate may become too warm or dry to support A. franciscana. Natural movement of the species by seed dispersal to reach cooler, moister areas to the north would be blocked by barriers such as the San Francisco Bay.

Fire, in addition to soil type and climate, plays an important role in the determination of plant distribution (Keeley 2007, p. 19). The chaparral plant community, of which Arctostaphylos is an important member, is adapted to specific fire regimes that vary in different areas in California. In the San Francisco East Bay region, the current fire rotation interval is estimated at about 100 years (Keeley 2007, p. 20). Factors that affect the fire frequency in the San Francisco Bay area are a short fire season, moist climate, the local human population density, and changes in human behavior. Due to prevailing ocean winds and frequent fogs, the average relative humidity along the coast is moderate to high throughout the year. The exceptions typically occur in the fall, when changing prevailing weather patterns allow dry northeasterly winds from the State's interior to reduce humidity in the coastal area to around 20 percent, thereby creating dry and windy conditions that typify high fire danger (GGNRA 2005, pp. 136, 140).

Fire frequency in the San Francisco Bay area has varied substantially in the last several thousand years. Not only have fire regimes changed with changing climate, fire regimes have changed as patterns of human utilization of the landscape have changed. Disturbances by fire occurred at long intervals in the pre-human period, then at shorter intervals during the late Native American and Spanish-Mexican period, at moderate intervals during the European settlement period, and have generally returned to long intervals in the modern period (GGNRA 2005, pp. 144-147). The natural fire regime has been heavily altered by the urbanization of San Francisco and the fragmentation of remaining undeveloped lands. The City of San Francisco is essentially built out, with the exception of small isolated parcels and undeveloped hilltops. Lands administered by the NPS and the Presidio Trust are surrounded by other land uses and close to the wildland-urban boundary where landscape plants and nonnative plants contribute to vegetative buildup (GGNRA 2005, pp. 130-131) that can increase fire danger. In addition, fire suppression has been prevalent during the last 100 years. This altered fire regime has led to an increase in crown and surface fuels, contributing to high-intensity fires (GGNRA 2005, p. 147). These administered lands could eventually be identified as suitable for outplanting Arctostaphylos franciscana seedlings, but the specific habitat characteristics for the species are not known at this time.

Two opposing types of changes in fire frequency can threaten Arctostaphylos franciscana. First, “senescence risk” occurs when too little fire leads to the loss of a species that is dependent on fire for regeneration from seeds or sprouts. The second is “immaturity risk,” which is a threat especially to obligate-seeding species. In this case, wildfires that occur too frequently will kill plants before they can reach reproductive maturity and produce seed (Keeley 2007, p. 18). Wildfire can substantially reduce the number of live seeds in the soil (Odion and Tyler 2002, p. 1). Odion and Tyler (2002 p. 1) found that a controlled burn in a 40-year-old stand of A. morroensis (Morro manzanita) substantially reduced the seedbank to 33 percent of that which had accumulated in the soil since the previous burn 40 years earlier. Three years after the burn, the new population of A. morroensis that had germinated from the seedbank was less than half the size of the original population (Odion and Tyler 2002, p. 1). Odion and Tyler (2002 p. 2) concluded that if viable seed densities in the soil are too low because fires are too frequent to allow seeds to accumulate in the soil, the population may risk extinction.

The fire return interval for this general area, and, therefore, for this species, is currently approximately 100 to 125 years (T. Parker pers. comm., 2011, Vasey 2011a, p. 1). The long fire return interval is not thought to be a threat to the mature Arctostaphylos franciscana plant at the Presidio or to future seedlings that are likely to be outplanted in the future as a result of efforts by the NPS and the Presidio Trust. Infrequent fire would allow the mature plant at the Presidio to produce seed to build up a sufficiently large seedbank to withstand seed loss from wildfire, and would allow the growth of outplantings. However, if fire continues to be excluded from these areas and the fire return interval greatly exceeds the natural return interval, over time the loss of fire may also result in the loss of the mature plant and individual outplanted seedlings due to competition by plants, including nonnative plants, that could encroach upon the manzanita.

Other aspects of the altered fire regime within the remaining undeveloped lands of San Francisco pose greater threats to the species. Alteration of the fire regime has led to an increase in crown and surface fuels in some areas, leading NPS fire planners to conclude that it is difficult to predict where the changed fire regime will ultimately lead, given the trend to warmer and drier climate conditions (Madej et al. 2010, p. 24; Johnstone and Dawson, 2010, p. 4535), and the climatic correlation with fire frequency (GGNRA 2005, pp. 147, 148). In the past, large fires have occurred within areas that are typically subject to maritime climatic conditions. Such fires include the 1923 Berkeley Fire; the October 1991 Oakland Fire (Keeley 2005, p. 286) that burned 607 ha (1,500 ac); the October 1995 fire at Point Reyes National Seashore that burned 4,999 ha (12,354 ac) (GGNRA 2005, p. 151); and the 1,133-ha (2,800-ac) 2009 Lockheed Fire north of the City of Santa Cruz (The Associated Press 2009). On the Presidio, fire history data show that 17 fires occurred between 2000 and 2009, with no fires in some years and as many as 5 fires in other years. All fires were contained at 0.04 ha (0.1 ac) or less (A. Forrestel, pers. comm., 2011a, 2011b). In the same period, approximately four wildfires occurred in the Marin Headlands, directly to the north of the Presidio across the Golden Gate, while recent fire history records for all areas of the GGNRA show the potential for larger wildfires in the maritime zone (GGNRA 2005, pp. 150-155).

Although the Presidio is located within a highly urbanized setting, substantial areas of open space within the Presidio itself and within the adjacent GGNRA lands harbor an interspersed mixture of vegetative types, including native vegetation, landscaped grounds, and forest (GGNRA 2005, pp. 190-199; Presidio Trust 2011, unpaginated). Grasslands are now dominated by nonnative annual grasses and forbs, which burn with greater intensity and have a more rapid rate of spread (GGNRA 2005, p. 192). A fire model prepared by the GGNRA indicates that areas managed by the GGNRA on the western and southwestern borders of Presidio Trust lands present a moderate and moderate-high fire hazard (GGNRA 2005, p. E-7). As a result of the altered fire regime, infrequent fires may burn larger and hotter than previously occurred, potentially increasing the loss of seedbanks when such fires do occur. As a result of the altered fire regime, the incidence of wildfire may also increase, which would be detrimental to Arctostaphylos franciscana by killing mature plants, seedlings, and seeds in the seedbank. In obligate-seeding species, such as A. franciscana, fire normally kills the adult plants, which are then replaced by plants that germinate from seed in the soil seedbank after the fire. A wildfire that would kill the single wild A. franciscana would be an especially serious threat to the future of the species because no A. franciscana seedbank has been found in soil collected from the area beneath the wild plant (Young 2011, p. 1).

Trampling by people could impact the wild plant, and its offspring, or any herbarium-raised plants that are restored to the wild, if they are placed in areas subject to regular foot traffic. The translocated wild plant has been planted in an active native plant management area that receives heavy public use; however, it is protected by a cable and post fence from public access and is monitored (Chasse et al. 2009, pp. 20-28). The post and cable fence was placed along an adjacent trail so that people do not enter the immediate area around the plant. The fence currently appears to be working well (Young 2010a, p. 1); however, a single trampling event could result in damage or the death of the wild plant. As noted under Factor B, the Presidio Trust and NPS have made continuous efforts not to reveal the location of Arctostaphylos franciscana. They are concerned that public knowledge of the A. franciscana location would attract large numbers of plant enthusiasts who may damage the A. franciscana and compact the soil (T. Thomas, pers. comm., 2011).

Roots grow into soil to maintain stability and to extract water and nutrients; however, soil compaction from trampling increases the resistance of the soil to root penetration and thus diminishes the plant's ability to extract sufficient water and nutrients. Soil compaction also reduces water infiltration rates from rainfall and reduces soil aeration by collapsing the larger pores in the soil. Reduced soil oxygen levels from loss of soil pores also can reduce root growth, which further reduces water and nutrient uptake (Hammitt and Cole 1998, p. 52). Soil compaction also inhibits seed germination and establishment of new plants. Smooth, dense soil makes it difficult for the radicle (the seedling's primary root) to penetrate the soil for stability, water, and nutrients (Hammitt and Cole 1998, p. 52). Trampling has also been found to cause considerable damage to mycorrhizal fungi in seedling roots (Waltert et al. 2002, p. 1). As noted in the Distribution and Habitat section, most Arctostaphylos species form strong symbiotic associations with soil mycorrhizal fungi, which form an external sheath surrounding the plant's roots; all water and nutrients pass through this sheath to the plant's roots rather than directly from the soil to the plant's roots (Chasse 2009, p. 12). Damage from trampling will not only impact the wild plant by reducing its ability to take up water and nutrients, but will also reduce the ability of any seedlings germinating near the wild plant to survive.

The location of the Arctostaphylos franciscana plant within the Presidio is near common-use trails and an area that is available for rent for private and public events. Threats to A. franciscana include damage from vandalism and interested visitors. Vandalism to trees was reported in the Presidio in the early 2000's (T. Thomas pers. comm. 2011). Severe vandalism was observed in Golden Gate Park, located approximately 1.5 mi (2.4 km) south of the Presidio, in summer 2010 where more than 40 trees and 30 rose bushes were killed by unknown persons for unknown reasons (King 2010, unpaginated, Gordon 2010, unpaginated). The post and cable fence protecting A. franciscana in the Presidio is approximately 30 ft (9.1 m) from the plant and is not constructed to completely exclude visitors.

Any new population starting from the single wild plant is likely to have reduced genetic variation compared to historical populations. The generation with the smallest number of individuals has the greatest effect on the genetic variation of subsequent generations. Even if the number of plants is expanded, it may not reverse the previous genetic loss known as the “bottleneck effect” (Allendorf and Luikart 2007, p. 158). Bottlenecks generally have a greater and more lasting effect on the loss of genetic variation in species that have slow growth rates (long-lived species with few offspring) (Allendorf and Luikart 2007, p. 133). The age of the single wild A. franciscana plant is estimated at 60 years, and no other A. franciscana plants or seedlings were found associated with the wild plant.

Reduced genetic variation may result in the plant's offspring not being able to adapt to changes in habitat such as those noted above in the discussion on climate change (decrease in fog and increase in temperature), or loss of pollinators (see pollinator discussion below). Arctostaphylos franciscana may be capable of self-pollination. In general, self-pollination results in a decrease in genetic variation in the offspring of a plant (Allendorf and Luikart, 2007, p. 123); therefore, a loss of genetic variation is expected if A. franciscana is dependent on self-pollination to produce seed. In a study on the effects of habitat fragmentation on a non-self-pollinating plant (Lennartsson 2002, pp. 3065, 3066, 3068), the author found that fragmented populations exhibited dramatically reduced seed set and population viability, both caused by a reduction in number of pollinators. Threats associated with reduced seed production are discussed further in the following section on Stochastic Events and Small Population Size.

Chance events constitute a serious threat to the species. Because the known population of Arctostaphylos franciscana in the wild is currently limited to a single plant, the species is extremely vulnerable to stochastic events—normal but damaging environmental perturbations and catastrophes such as droughts, storm damage, and fires, from which large, wide-ranging populations can generally recover, but which may lead to extirpation of small, isolated populations (Gilpin and Soule 1986, pp. 25-31). Suitable pollinators may be critical for seed production for this obligately seeding species. If pollinators are not present or are in insufficient numbers, viable seeds may not be produced to develop and maintain the seedbank. Pollinators have been observed on the wild plant; however, no surveys have yet taken place to identify the most important pollinators. The most frequent pollinators seen have been bees and bumblebees; however, hummingbirds and butterflies have also been seen visiting the A. franciscana flowers, likely because few other plants are blooming during the winter months when A. franciscana blooms (M. Vasey, pers. comm. 2010). Although the loss of the seed produced in a single year would not likely lead to the extirpation of the species, a continued reduction of the seed crop or dependence on self-pollination would reduce the seedbank, the genetic variation, and the potential for expansion of the population.

The wild plant is also threatened by the Allee effect, which is a decline in population growth rate due to declining plant density (Akçakaya et al. 1999, p. 86). For the wild plant, the Allee effect may result from a lack of other available Arctostaphylos franciscana plants with which to cross-pollinate and produce viable seed. The wild plant is the single remaining individual of its species in the wild and is currently dependent on its potential ability to self-pollinate, which may be limited, and the efforts of researchers and Presidio staff to provide additional plants of different genotypes from botanical garden specimens (if they are proven to be A. franciscana ) to cross-pollinate with the wild plant to produce new plants and populations.

Cultivars of Arctostaphylos franciscana are used in the commercial nursery trade. The cultivars are likely descended from some of the last wild A. franciscana plants known to exist in the 1940s and are located in at least four botanical gardens (Chasse et al. 2009, pp. 7, 8). Since hybridization between diploid species of manzanita is well recognized (Chasse et al. 2009, p. 5), there is a good chance that many of these commercially available specimens have resulted from hybridization. Because of the threat of cross-pollination from hybrids or other species (Allendorf et al. 2001, pp. 613, 618-621), any propagation or reintroduction programs for A. franciscana must account for subsequent contamination and swamping of the A. franciscana gene pool. The conservation plan does take this into account by recommending that future outplantings of nursery-raised plants avoid areas that could facilitate cross-pollination (Chasse et al. 2009, p. 31). Appropriate outplanting areas will be determined by A. franciscana experts in conjunction with the NPS, the Presidio Trust, and the Golden Gate National Parks Conservancy (Chasse et al. 2009, p. 31). Although cross-pollination of the wild plant with hybrids is possible, we do not know the magnitude of this threat.

We conclude that the best scientific and commercial information available indicate that A. franciscana is threatened by other natural or manmade factors affecting its continued existence, and that these factors include changes in environmental conditions resulting from climate change, change in fire frequency, trampling, vandalism, loss of genetic diversity, loss of pollinators, stochastic events, effects of small population size, and hybridization. Cumulatively, we consider these threats to be of high magnitude and imminent.

As required by the Act, we conducted a review of the status of the species and considered the five factors in assessing whether Arctostaphylos franciscana is endangered or threatened throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the A. franciscana. We reviewed the petition, information available in our files, and other available published and unpublished information, and we consulted with A. franciscana experts and other Federal and State agencies.

This status review identified threats to Arctostaphylos franciscana attributable to each of the five listing factors identified in section 4(a)(1) of the Act. The primary threat to A. franciscana is from the present or threatened destruction, modification, or curtailment of the species' habitat or range ( Factor A ). All original occupied habitat of the species has been lost, and its current range has been reduced to a single location supporting a single A. franciscana plant. The last wild plant was moved from its habitat, which was subsequently destroyed during a highway construction project, and transplanted to the Presidio in San Francisco. Remaining potential habitat for the species on the San Francisco peninsula has not yet been determined or surveyed. It is unknown whether there is sufficient suitable habitat to support a viable population of the species. Although greenstone and serpentine soils remain on the peninsula, the majority of this land has been fragmented into areas of 0.40 ha (1 ac) with a few approximately 2.4 ha (6 ac) in size. Additionally, potential disparity in the mission of the Presidio Trust and NPS and the possible transfer of Presidio lands to the General Services Administration and the private sector may result in potential future loss or modification of the plant and its habitat.

Overutilization ( Factor B ) is a threat because the current known wild population consists of one individual plant, and manzanita plants are popular for landscaping and other horticultural purposes. Arctostaphylos franciscana is thus highly vulnerable to removal from the wild as a result of collection or damage from people collecting cuttings or seeds.

The species is threatened to a lesser degree by disease and predation ( Factor C ). Stress from transplanting of the wild plant may have weakened the plant and made it more susceptible to disease and predation. The plant was heavily infested with a native leaf roller moth after being transplanted; however, the caterpillars and damaged foliage were removed, and the plant has produced new foliage and flowers. Twig blight, a fungal infection, was observed on the plant during the winter of 2009-2010, but the infection subsided during the dry season. A serious and lethal problem among Arctostaphylos species in the wild and in the native plant nursery trade is the pathogen Phytophthora cinnamomi, which cannot be controlled once introduced to a plant or habitat. Many of the A. franciscana cuttings are being grown in commercial or university nurseries for outplanting with the wild plant. Although the use of clean propagation techniques has been requested by the staff in charge of the project, the risk of infection of the cuttings and wild plant by P. cinnamomi is still a threat.

Existing regulatory mechanisms ( Factor D ) afford certain protections for Arctostaphylos franciscana because the plant is located on lands administered by the NPS Golden Gate National Recreation Area and the Presidio Trust. However, as mentioned above, these protections are not guaranteed into the future because the Presidio Trust Act dictates that, if the goals and objectives of the Presidio Trust Management Plan are not met by 2013, property shall be transferred to the Administrator of the General Services Administration to be disposed of in accordance with procedures outlined in the Defense Authorization Act. Therefore, lands on the Presidio could be disbursed to the private sector and subject to development. We, therefore, consider existing regulatory mechanisms to be inadequate to protect A. franciscana.

The species is also threatened by other natural or manmade factors affecting its continued existence ( Factor E ). These factors include changes in environmental conditions resulting from climate change, changes in fire frequency, trampling, loss of genetic diversity, stochastic events, small population size, and hybridization. Effects of changes in environmental conditions resulting from climate change on the plant's habitat are expected to include increased air temperature and reduced summer fog, both resulting in warmer and drier conditions than those to which the plant is adapted. A shift in the timing of flowering of the Arctostaphylos franciscana and availability of suitable pollinators or loss of pollinators due to climate change could affect the plants' ability to set seed. Warming and drying of the plant's habitat would likely also increase the frequency of wildfire that would result in death of the wild plant and its future seedlings if fire occurs before the plants are able to produce viable seeds.

Loss of mature Arctostaphylos plants to fire is a natural phenomenon; however, this species is currently represented by a single mature plant. Therefore, to our knowledge, the loss of the plant would result in extinction of the species in the wild. Loss of genetic diversity has likely already occurred due to the reduction of the species to a single wild plant and may continue by limiting this generally outcrossing species to self-pollination. Reduced genetic diversity may also limit the species' ability to adapt to changes in habitat such as those resulting from climate change (decrease in fog and increase in temperature) or loss of pollinators. The species is extremely vulnerable to stochastic environmental events such as droughts, storm damage, and fires, from which large, wide-ranging populations can generally recover, but which would likely drive a species consisting of a single plant to extinction.

Based on our evaluation of all scientific and commercial information available regarding the past, present, and future threats faced by Arctostaphylos franciscana, we have determined that the continued existence of A. franciscana is threatened by residual effects from habitat loss, climate change, loss of genetic diversity, change in fire frequency, vandalism, predation, and inadequate regulatory mechanisms. Because the species faces these threats throughout its extremely limited range, we find that A. franciscana is warranted for listing throughout its range and, therefore, find it unnecessary to analyze whether it is endangered or threatened in a significant portion of its range.

The Act defines an endangered species as one that is in danger of extinction throughout all or a significant portion of its range. A threatened species is one that is likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range. The species A. franciscana currently exists as a single plant on the San Francisco Presidio. Because the range of the species is restricted to a single plant, the risks presented by the threats noted in Factors A through E are more intensified than they would be were the species more widespread or numerous.

The species is affected primarily by small area of remaining suitable habitat and loss of natural disturbance regime, as a result of past urban development and ongoing changes in environmental conditions resulting from climate change, as well as loss of genetic diversity. Additionally, the species is threatened by factors including collection or vandalism, disease, predation, loss of pollinators, and inadequate regulatory mechanisms. These interrelated factors have and will continue to result in threats to the continued existence of the species. Based on our evaluation of the best available scientific and commercial information and given the current population size (one plant), and severely limited distribution throughout its historical range, we have determined the species is in danger of extinction throughout all of its range and thus meets the definition of an endangered species. Because the species is in danger of extinction now, as opposed to in the foreseeable future, A. franciscana meets the definition of an endangered species rather than a threatened species.

On the basis of our careful evaluation of the best available scientific and commercial information regarding the past, present, and future threats to the species as discussed above relative to the listing factors, we have determined that listing is warranted, and we propose to list Arctostaphylos franciscana as an endangered species throughout its range.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline shortly after a species is listed, preparation of a draft and final recovery plan, and revisions to the plan as significant new information becomes available. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The recovery plan identifies site-specific management actions that will achieve recovery of the species, measurable criteria that determine when a species may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (comprising species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site ( http://www.fws.gov/endangered ), or from our Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may also occur on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of California would be eligible for Federal funds to implement management actions that promote the protection and recovery of Arctostaphylos franciscana. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into formal consultation with the Service.

Federal agency actions within the species habitat that may require conference or consultation, or both, as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the National Park Service or Presidio Trust; issuance of section 404 Clean Water Act permits by the Army Corps of Engineers; permitting of construction and management of gas pipeline and power line rights-of-way by the Federal Energy Regulatory Commission; and construction and maintenance of roads or highways by the Federal Highway Administration.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. If Arctostaphylos franciscana were listed, the last wild specimen (including any plants propagated from the wild plant) and the botanical garden specimens ( i.e., those plants previously collected from the wild and subsequently propagated) would be protected by all prohibitions of section 9(a)(2) of the Act, which protects listed plants in areas of Federal jurisdiction such as the Presidio. Plants of unknown origin that have been or are being sold in the nursery trade or have been transplanted into home gardens would not be considered part of the listed entity. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce the species to possession from areas under Federal jurisdiction. In addition, for plants listed as endangered, the Act prohibits the malicious damage or destruction on areas under Federal jurisdiction and the removal, cutting, digging up, or damaging or destroying of such plants in knowing violation of any State law or regulation, including State criminal trespass law. Certain exceptions to the prohibitions apply to agents of the Service and State conservation agencies. Arctostaphylos franciscana has not been listed by the State of California, therefore, State laws do not apply. Listing would also require Federal agencies to avoid actions that might jeopardize the species (16 U.S.C. 1536(a)(2)), and would provide opportunities for funding of conservation measures and land acquisition that would not otherwise be available to them (16 U.S.C. 1534, 1535(d)).

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

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ). Requests for copies of the regulations concerning listed plants and general inquiries regarding prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Endangered Species Permits, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, California 95825 (telephone 916-414-6600; facsimile 916-414-6712).

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

(1) The specific areas within the geographical area occupied by the 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 the 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 pursuant to 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, and transplantation.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, 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.

For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain physical and biological features that are essential to the conservation of the species, and which 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 or biological 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.

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.

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

Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exist: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking, or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

We have done a preliminary evaluation to determine if the designation of critical habitat for Arctostaphylos franciscana is prudent and determinable at this time. On the basis of that evaluation, we have determined that the designation of critical habitat may not be prudent for this species due to an increased degree of threat.

If the designation of critical habitat would increase threats to a species or if there are no benefits to a critical habitat designation, then a not prudent finding is warranted. A critical habitat designation may result in increased awareness of the specific area where the individual Arctostaphylos franciscana plant is likely to occur, which may result in increased threats for a species with such an extremely limited distribution—a single plant. Manzanitas are popular ornamental plants for landscaping and horticulture, and manzanita cuttings are easily propagated. Its rarity would make A. franciscana especially desirable to certain individuals who may try to take cuttings or collect seeds from the A. franciscana plant (see Factor B ). Vandalism of shrubs and trees has occurred recently within the Presidio and in Golden Gate Park (see Factor E ); greater awareness of the specific location of where the individual A. franciscana plant occurs may result in increased risk of vandalism of the plant. Also, increased visitation of the individual plant that may result from critical habitat designation may result in increased risk of trampling and disease transmission of soil-borne pathogens to A. franciscana (see Factor C ).

Because of the potential increased threats that may result from the identification of the specific areas containing features essential to the conservation of the species or specific essential areas as critical habitat, we have preliminarily determined that the designation of critical habitat for Arctostaphylos franciscana may not be prudent at this time. However we have not made our final determination and we are, therefore, seeking information from the public regarding threats to the species and its habitat and whether the risks of designation of critical habitat would outweigh the benefits of this determination. Please see Information Requested above for specific information we are seeking for making our determination whether the designation of critical habitat would be prudent at this time.

Further, we are currently unable to identify the physical or biological features for Arctostaphylos franciscana, because information on the full range of the physical or biological features that are considered essential to the conservation of this species is not known at this time. Little information is available on the historical populations that existed prior to habitat alteration from grazing and burning by Euro-American settlers (Keeley 2005, p. 285; Cooper 1922, p. 76) and prior to development of the city of San Francisco. We cannot be sure that the historical records of extirpated occurrences and the currently known record of A. franciscana represent the full extent of the species' predisturbance range and habitat (Chasse 2010, p. 1). Some records are available as noted in the Distribution and Habitat section of this rule; however, they may simply be the only locations that were recorded rather than being representative of optimum habitat.

The single remaining wild plant was found on a previously disturbed highway median, which was highly unlikely to represent natural habitat conditions. The remaining greenstone/serpentine habitat on the San Francisco peninsula, which is highly fragmented and not occupied by A. franciscana, may not be suitable for supporting populations of the species. Because of the limited information available related to the species' physical or biological requisites, we are not currently able to identify the specific areas that contain the appropriate physical or biological features essential to the conservation of A. franciscana or otherwise identify areas that may be essential for its conservation without additional information. Therefore, since the physical or biological requirements of the species are not sufficiently known, we find that critical habitat for A. franciscana is not determinable at this time.

We are, therefore, seeking information from the public regarding which physical or biological features or specific areas may be essential to the conservation of Arctostaphylos franciscana . Please see Information Requested section for specific information we are seeking to assist us in trying to identify the biological requirements for A. franciscana .

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our determination of status for this species is based on scientifically sound data, assumptions, and analyses. We have invited these peer reviewers to comment during the public comment period on our specific assumptions and conclusions regarding the proposal to list Arctostaphylos franciscana as endangered and our proposed finding regarding critical habitat for this species.

We will consider all comments and information received during the comment period on this proposed rule during preparation of a final determination. Accordingly, the final decision may differ from this proposal.

The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposal in the Federal Register . Such requests must be sent to the address shown in ADDRESSES . We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

This rule does not contain any new collections of information that require approval by Office of Management and Budget (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 pursuant to the 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)).

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

The primary authors of this notice are the staff members of the Sacramento Fish and Wildlife Office (see ADDRESSES ).

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

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

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

On September 5, 2000, we received a petition dated September 4, 2000, from Robert R. Reid, Jr., on behalf of the Alabama Audubon Council, Alabama Environmental Council, and Alabama Ornithological Society (petitioners), requesting that the snowy plover be listed as threatened or endangered, and that the wintering population of piping plover be reclassified from threatened to endangered under the Act, and that critical habitat be designated under the Act for both species. The petition was submitted concurrently with comments in response to the request for public comments contained in our proposal to designate critical habitat for wintering piping plover (July 6, 2000; 65 FR 41782) and our extension of the comment period for that proposal (65 FR 64414; October 27, 2000). We responded to the petitioner's comments related to the critical habitat rulemaking in the final rule for the designation of critical habitat for wintering piping plover (66 FR 36038; July 10, 2001).

The petition mentions common threats to both species, provides brief examples of potential population declines, and discusses the petitioners' views on how consultations would benefit from critical habitat designations. The petition also discusses the petitioners' views on the economic advantages of critical habitat and mentions that “inhabited” and “uninhabited” lands should be included in the critical habitat designations. Few references were provided to support the statements in the petition.

The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a); however, no scientific name for either species was included in the petition. In an October 11, 2000, letter to the petitioners, we acknowledged receipt of the petition. We determined that issuing an emergency regulation temporarily listing either species under section 4(b)(7) of the Act was not warranted. We notified the petitioners that, due to court orders and judicially approved settlement agreements for other listing and critical habitat determinations under the Act that required nearly all of our listing and critical habitat funding for fiscal year 2001, we would not be able to further address the petition at that time, but we anticipated addressing the action when workload and funding allowed. Funding limitations have prevented the Service from responding to the petition until now. This finding addresses the petition. In separate sections below, we address the petitioners' requests to list the snowy plover as threatened or endangered and to reclassify the wintering population of piping plover as endangered.

Snowy plovers are small shorebirds, about 6.7 inches (17 centimeters (cm)) long. The plumage is pale gray or brown above, and pure white below. Their bills and legs are dark (Gore 1996, p. 73). Snowy plovers require expansive, open dry sandy beaches for breeding, and both dry and tidal sand flats for foraging (Woolfenden 1978, p. 9). They primarily feed on small crustaceans, mollusks, worms, and insects that they glean from beaches and sand flats. They nest on open, dry white sand where a typical clutch of three eggs is laid in a slight depression, sometimes lined with bits of shell (Woolfenden 1978, p. 9). In Florida, nests have been documented as early as February, with pair bonding reported as early as January (Gore and Chase 1989, p. 8).

Two subspecies of snowy plover that nest in North America were recognized by the American Ornithological Union (AOU) in 1957 (5th edition of its Check-list, pp. 168-169): The western snowy plover ( Charadrius alexandrinus nivosus ) and the Cuban or Southeastern snowy plover ( C. a. tenuirostis ). Since that time, however, the AOU has not conducted a review of this subspecies distinction. The AOU stopped listing subspecies as of the 6th edition (1983) of its Check-list, although it recommended the continued use of the 5th edition for taxonomy at the subspecific level. The AOU has not formally or officially reviewed the subspecific treatment of most North American birds. In the 7th edition (1998, p. xii) of the Check-list, the AOU explained that its decision to omit subspecies “carries with it our realization that an uncertain number of currently recognized subspecies, especially those formally named early in this century, probably cannot be validated by rigorous modern techniques.”

Page et al. (1995, p. 3) state that two subspecies of snowy plover have been recognized for North America (and partially in South and Central Americas): Charadrius alexandrinus tenuirostris is found on the Gulf Coast east of Louisiana through Florida, the Bahama Islands, the north coast of the Yucatan Peninsula, the Greater and Lesser Antilles, and islands off the north coast of Venezuela; and C. a. nivosus is found elsewhere in the United States and Mexico (including coastal California and Baja California; locally in the Great Basin of California, Oregon, Nevada, and Utah; very locally in southern Saskatchewan, central Montana, southern Wyoming, central and eastern Colorado, and southern Arizona; sparsely but widely distributed over southeast New Mexico and east through north central Texas, central Oklahoma, and central Kansas; the southern Texas coast into northeast Mexico; and the central Mexican plateau) (AOU 1957, pp. 168-169; Cramp 1983, p. 153). Others (Oberholser 1974, p. 312; Johnsgard 1981, pp. 191-192; Jacobs 1986, p. 3; Gore 1996, p. 74) have stated that C. a. tenuirostris includes birds in coastal Texas and northeastern Mexico, as well as birds of the interior Great Plains.

Gorman (2000, pp. 36-38) performed genetic studies that concluded the Greater Antillean snowy plovers, represented only by samples from Puerto Rico, were clearly differentiated from mainland birds in Florida. Furthermore, Florida birds were much more closely related to other continental populations of Charadrius alexandrinus nivosus than to Puerto Rican C. a. tenuirostris. Among birds east of the Rocky Mountains, Texas coastal and Great Plains birds appeared to be more closely related to other eastern birds than birds west of the Rocky Mountains.

Gorman (2000, pp. 36-38) admits that, in the absence of further sampling, it is not clear whether all snowy plover populations in the West Indies and Bahamas would be grouped with birds from Puerto Rico or with birds from east of the Rocky Mountains. Differentiation among the eastern continental U.S. populations is apparently insufficient to warrant separate populations. Thus, these results suggest that snowy plovers east of Louisiana, including Florida, along the Gulf Coast may be grouped with Great Plains and other Gulf Coast birds. The Service accepts the characterization of the snowy plover as two subspecies in North America, Charadrius alexandrinus nirvosus and C. a. tenuirostris.

It is not clear which demarcation the petitioners relied upon for the petition request, because neither a species nor subspecies scientific name was provided for the snowy plover in the petition. At times, the petitioners reference inclusion of the Texas coastline as part of the “Gulf Coast” snowy plover range; yet most references to population data are from Florida and, possibly, Alabama. No reference is made to the Caribbean population. The genetic studies performed by Gorman were reported earlier in the same year as the petition, and may not have been available to the petitioners prior to submission of the petition. Gorman (2000, pp. 36-38) made a recommendation that small management units based on demographic considerations might be adopted. Regardless of the petitioners' intention, they failed to provide a scientific name and to clearly identify the petitioned entity of the snowy plover.

The Pacific Coast vertebrate population segment of Charadrius alexandrinus nivosus, the Western snowy plover, was listed as threatened under the Act on March 5, 1993 (58 FR 12864). The Pacific coast population is defined as those individuals that nest within 50 miles of the Pacific Ocean on the mainland coast, peninsulas, offshore islands, bays, estuaries, or rivers of the United States and Baja California, Mexico. No other populations of the snowy plover are currently federally listed as threatened or endangered species.

Upon receipt of a petition to list, delist, or reclassify a species, we are to consider whether such petition “clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved” (50 CFR 424.14(b)(2)(i)). Throughout the subject petition, the term “snowy plover” is used with references to the “Gulf Coast” without providing a scientific name or distinguishing the snowy plover as a species, subspecies, or population. At the time of receipt of the petition, the Pacific Coast population of the Western snowy plover was listed as a threatened species (March 5, 1993; 58 FR 12864). The snowy plover breeding and wintering ranges provided in the petition identified ranges of both the Charadrius alexandrinus nivosus and C. a. tenuirostris. Thus, the petition did not fully identify what constituted the entity and as petitioned, did not, therefore, meet the “listable entity” requirement for a substantial finding.

The piping plover is a small (6.7 to 7.1 inches (17 to 18 cm)) pale-colored migratory shorebird that breeds in three separate areas of North America: The Northern Great Plains, the Great Lakes, and the Atlantic Coast. The piping plover winters in coastal areas of the United States from North Carolina to Texas, along the coast of eastern Mexico, on Caribbean islands from Barbados to Cuba, and the Bahamas (Plissner and Haig 1997, pp. 8-9). Information from observation of color-banded piping plovers indicates that the winter ranges of the breeding populations overlap to a significant degree (Plissner and Haig 1997, pp. 9-11; Wemmer 2000, p. 47). The source breeding population of a given wintering individual bird cannot be determined in the field unless the individual bird has been banded or otherwise marked.

Piping plovers spend about two-thirds of the year on migratory and wintering grounds. Piping plovers begin arriving on the wintering grounds in July, with some late-nesting birds arriving in September. A few individuals can be found on the wintering grounds throughout the year, but sightings are rare in late May, June, and early July. Migration is poorly understood, but preliminary data suggest that plovers use inland and coastal stopover sites when migrating from interior breeding areas to wintering grounds (McConnaughey et al. 1990, p. 19). Observations of color-marked birds in Alabama indicated wintering plovers were least mobile from late November through late January (Johnson and Baldassarre 1988, p. 221). Concentrations of spring and fall migrants also have been observed along the Atlantic Coast (Service 1996, pp. 129-138). In late February, piping plovers begin leaving the wintering grounds to migrate back to breeding sites.

Habitat on the wintering grounds consists of exposed sandflats, beaches, washovers and algal flats. Mudflats and sandflats provide foraging areas where piping plovers feed primarily on marine and freshwater invertebrates. Foraging accounted for about 75 percent of observed piping plover behavior in an Alabama study (Johnson and Baldassarre 1988, p. 217). The number of plovers foraging in an area may be dependent on density of food sources (Zonick 2000, p. 90).

Two subspecies of piping plover, Charadrius melodus melodus (Atlantic Coast of North America) and C. m. circumcinctus (Northern Great Plains of North America), were recognized by the American Ornithological Union (AOU) in 1957 (5th edition of its Check-list 1957, pp. 167-168) and in 1983 (6th edition of its Check-list 1983, pp. 170-171). However, the AOU has not conducted a review of this subspecies distinction since that time. The Service accepts the characterization of the piping plover as two subspecies in North America, C. m. melodus and C. m. circumcinctus.

On December 11, 1985 (50 FR 50726; effective January 10, 1986), the piping plover ( Charadrius melodus) was listed as endangered in the Great Lakes watershed of both the United States and Canada, and as threatened in the remainder of its range in the United States (Northern Great Plains, Atlantic and Gulf Coasts, Puerto Rico, Virgin Islands), Canada, Mexico, Bahamas, and the West Indies. The threatened status included all piping plover when on their wintering grounds.

Protection of the entire species Charadrius melodus under the Act reflects its status range wide. However, the Service has consistently recognized three separate breeding populations of piping plovers, on the Atlantic Coast, Great Lakes, and Northern Great Plains. A recovery plan established delisting criteria for the Atlantic Coast breeding population (Service 1996, pp. 57-58). A joint recovery plan specified separate delisting criteria for the Great Lakes and Northern Great Plains breeding populations (Service 1988, pp. 54-55). After the September 4, 2000, petition was submitted to the Service, critical habitat was designated for the Great Lakes (66 FR 22938; May 7, 2001) and Northern Great Plains breeding populations (67 FR 57637; September 11, 2002), and for piping plovers from the three breeding populations while on the wintering grounds (66 FR 36038; July 10, 2001).

The petition asserts the “Need to Designate the Wintering Gulf Population of Piping Plover as Endangered” (petition, p. 6). The petition focused solely on conditions along the Gulf coast and the status of the piping plover along the Gulf coast. The petition did not differentiate between species, subspecies, and distinct population segments, nor did the petition include a scientific name in its recommendation to change the status of the piping plover to endangered within the Gulf of Mexico. However, the petitioners were responding to a proposed rule to designate critical habitat for the piping plover ( Charadrius melodus ) while on its wintering grounds (65 FR 41782; July 6, 2000) in the same document as the petition. The Service accepts the petition as a request to reclassify wintering piping plover of the listed entity (C. melodus ) from a threatened to an endangered species.

Upon receipt of a petition to list, delist, or reclassify a species, we are to consider whether such petition “clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved” (50 CFR 424.14(b)(2)(i)). Under the Act, a species is defined as including any subspecies of fish or wildlife of plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532).

Piping plovers on their wintering or migration grounds, such as the Gulf coast, do not constitute a valid entity. The listing (50 FR 50726; December 11, 1985) of the species classified all piping plovers on the Great Lakes watershed breeding grounds as endangered and all other piping plover as threatened including on their breeding grounds in the Northern Great Plains and Atlantic Coast and on their migration and wintering grounds. This, along with the proposed designation of critical habitat for wintering piping plover, may have given the impression that the piping plover constitutes a listable entity while on its wintering grounds. However, this is not the case. Birds from all three of the recognized breeding grounds use and share the same Gulf coast wintering habitats. Thus, the birds on the wintering grounds are all of the listed entity (C. melodus ) but from three separate recognized breeding grounds. Thus, the petition's identification of a “Gulf wintering population of piping plover” is, therefore, not a listable entity.

In summary, on the basis of our determination under section 4(b)(3)(A) of the Act, the petition does not present substantial information indicating that listing the snowy plover as threatened or endangered is warranted, because the entity as petitioned is not listable. No scientific name of the petitioned entity was provided, and there are two subspecies of the snowy plover accepted for North America.

The petition also does not present substantial information indicating that reclassifying piping plover while wintering on the Gulf coast as endangered is warranted, because the entity as petitioned is not listable. The piping plover, as currently listed, represents all of the three recognized breeding entities wherever they reside or winter in their life cycle. The petition does not specify a listable entity for the requested reclassification.

Although we will not review the status of the snowy plover or the piping plover at this time, we encourage interested parties to continue to gather data that will assist with the conservation of these species. If you wish to provide information regarding the snowy plover or piping plover, you may submit your information or materials to the Project Leader, U.S. Fish and Wildlife Service Panama City Field Office (see ADDRESSES ), at any time.

A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the U.S. Fish and Wildlife Service, Panama City Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this notice are the staff members of the U.S. Fish and Wildlife Service Panama City Field Office (see ADDRESSES ).

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