This rule is issued under Marketing Agreement No. 148 and Order No. 932, both as amended (7 CFR part 932), regulating the handling of olives grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California olive handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable olives beginning on January 1, 2012, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with 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 law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, 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, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule would increase the assessment rate established for the Committee for the 2012 and subsequent fiscal years from $16.61 to $31.32 per ton of assessable olives.

The California olive marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of California olives. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2011 and subsequent fiscal years, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal year to fiscal year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on December 15, 2011, and unanimously recommended 2012 expenditures of $1,197,291 and an assessment rate of $31.32 per ton of assessable olives. Olives are an alternate year bearing crop. Olive growers and handlers are accustomed to wide swings in crop yields and assessments from year to year. In comparison, last year's budgeted expenditures were $2,203,909. The assessment rate of $31.32 is $14.71 higher than the rate currently in effect.

The Committee recommended the higher assessment rate because of a substantial decrease in assessable olive volume for the 2012 fiscal year. The olive volume available for fiscal year 2011 as reported by the California Agricultural Statistics Service (CASS) is 26,944 tons, which compares to 167,000 tons reported for the 2010 fiscal year. The reduced crop is due to olives being an alternate year bearing fruit. The Committee also plans to use available reserve funds to help meet its 2012 expenses.

The major expenditures recommended by the Committee for the 2012 fiscal year include $333,791 for research, $480,000 for marketing activities, $50,000 for inspection equipment development, and $333,500 for administration. Budgeted expenses for these items in 2011 were $1,093,009, $700,000, $75,000 and $335,900, respectively.

The assessment rate recommended by the Committee was derived by considering anticipated fiscal year expenses, actual olive tonnage received by handlers during the 2011 crop year, and additional pertinent factors. Actual assessable tonnage for the 2012 fiscal year is expected to be lower than the 2011 crop receipts of 167,000 tons reported by the CASS because some olives may be diverted by handlers to uses that are exempt from marketing order requirements. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve would be adequate to cover budgeted expenses. Funds in the reserve would be kept within the maximum permitted by the order of approximately one fiscal year's expenses (§ 932.40).

The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2012 budget and those for subsequent fiscal years would be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 1000 producers of olives in the production area and 2 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000.

Based upon information from the industry and CASS, the average grower price for 2011 was approximately $798 per ton and total grower production was around 26,944 tons. Based on production, producer prices, and the total number of California olive producers, the average annual producer revenue is less than $750,000. Thus, the majority of olive producers may be classified as small entities. Both of the handlers may be classified as large entities.

This rule would increase the assessment rate established for the Committee and collected from handlers for the 2012 and subsequent fiscal years from $16.61 to $31.32 per ton of assessable olives. The Committee unanimously recommended 2012 expenditures of $1,197,291 and an assessment rate of $31.32 per ton. The higher assessment rate is necessary because assessable olive receipts for the 2012 fiscal year were reported by the CASS to be 26,944 tons, compared to 167,000 tons for the 2011 fiscal year. Actual assessable tonnage for the 2012 fiscal year is expected to be lower because some of the receipts may be diverted by handlers to exempt outlets on which assessments are not paid. Income derived from the $31.32 per ton assessment rate along with funds from the authorized reserve and interest income should be adequate to meet this year's expenses.

The major expenditures recommended by the Committee for the 2012 fiscal year include $333,791 for research, $480,000 for marketing activities, $50,000 for inspection equipment development, and $333,500 for administration. Budgeted expenses for these items in 2011 were $1,093,009, $700,000, $75,000 and $335,900, respectively. The Committee recommended decreases in all major expense categories due to the huge decrease in assessable crop volume as reported by the CASS.

Prior to arriving at this budget, the Committee considered information from various sources, such as the Committee's Executive, Marketing, Inspection, and Research Subcommittees. Alternate expenditure levels were discussed by these groups, based upon the relative value of various projects to the olive industry and the reduced olive production. The assessment rate of $31.32 per ton of assessable olives was derived by considering anticipated expenses, the volume of assessable olives, and additional pertinent factors.

A review of historical information and preliminary information pertaining to the upcoming fiscal year indicates that grower price could range between approximately $1000 per ton and $1,200 per ton. Therefore, the estimated assessment revenue for the 2012 fiscal year as a percentage of total grower revenue could range between 2.6 and 3.1 percent.

This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the California's olive industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the December 15, 2011, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large California olive handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Laurel May at the previously-mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 30-day comment period is provided to allow interested persons to respond to this proposed rule. Thirty days is deemed appropriate because: (1) The 2012 fiscal year began on January 1, 2012, and the marketing order requires that the rate of assessment for each fiscal year apply to all assessable olives handled during such fiscal year; (2) the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; and (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.

For the reasons set forth in the preamble, 7 CFR part 932 is proposed to be amended as follows:

Table of Contents I. Background II. Discussion A. Test Units B. Water Load Microwave-Only Testing C. Reheat Food Simulation Mixture Testing D. Convection Microwave Cooking Testing E. Convection Microwave Oven Convection-Only Cooking Testing F. Cooling Down Energy Use G. Additional Issues on Which DOE Seeks Comment I. Background

On July 22, 2010, DOE published in the Federal Register a final rule for the microwave oven test procedure rulemaking (July 2010 TP Repeal Final Rule), in which it repealed the regulatory provisions for establishing the cooking efficiency test procedure for microwave ovens under the Energy Policy and Conservation Act (EPCA). 75 FR 42579. In the July 2010 TP Repeal Final Rule, DOE determined that the existing microwave oven test procedure to measure the cooking efficiency, which was based on the International Electrotechnical Commission (IEC) Standard 705-1998 and Amendment 2-1993, “Methods for Measuring the Performance of Microwave Ovens for Households and Similar Purposes” (IEC Standard 705), did not produce representative and repeatable test results. DOE stated that it was unaware of any test procedures that had been developed that addressed the concerns with the microwave oven cooking efficiency test procedure. DOE was also unaware of any research or data on consumer usage indicating what a representative food load would be, or any data showing the repeatability of test results. 75 FR 42579, 42581. In addition, in comments received in response to a separate test procedure notice of proposed rulemaking (NOPR) published in the Federal Register on October 17, 2008, which addressed provisions for measuring standby mode and off mode energy use for microwave ovens (73 FR 62134), interested parties commented that pure water has relatively low specific resistivity, and actual food items that might be cooked in a microwave oven would have more salts and thus absorb microwave energy more efficiently than pure water. Interested parties stated that, as a result, testing with a water load would likely result in lower efficiency measurements than would be expected from using actual food products.

On July 22, 2010, DOE also published in the Federal Register a notice of public meeting to initiate a separate rulemaking process to consider new provisions for measuring microwave oven energy efficiency in active (cooking) mode. 75 FR 42611. DOE held the public meeting on September 16, 2010 to discuss and receive comments on several issues related to active mode test procedures for microwave ovens to consider in developing a new test procedure. DOE received no data or comments at or after the September 16, 2010 public meeting suggesting potential methodologies for test procedures for microwave oven active mode.

On October 24, 2011, DOE published a Request for Information (RFI) notice to announce that it has initiated a test procedure rulemaking to develop active mode testing methodologies for microwave ovens. 76 FR 65631. DOE specifically sought information, data, and comments regarding representative and repeatable methods for measuring the energy use of microwave ovens, in particular for the microwave-only and convection microwave cooking ( i.e., microwave plus convection and any other means of cooking) functions. In particular, DOE sought comment on the following: (1) The characteristics of food loads representative of consumer use, (2) the repeatability of energy use measurements using different food loads, and (3) consumer usage data on the hours of operation in active mode, standby mode, and off mode for the development of an integrated energy use metric. In response to the August 2011 RFI, DOE received comments from the Association of Home Appliance Manufacturers (AHAM) and Whirlpool Corporation (Whirlpool) on a number of these test procedure issues. These comments are summarized below.

Food Load Repeatability and Reproducibility. AHAM and Whirlpool commented that the repeatability (test-to-test within one laboratory) and reproducibility (lab-to-lab) must be considered in developing an active mode test procedure for microwave ovens. AHAM and Whirlpool are both unaware of any existing test procedures that have successfully incorporated actual food loads, noting that the European Committee for Electrotechnical Standardization (CENELEC) has conducted testing with different food loads, including real and artificial food as well as salt water, and concluded that food loads cannot meet CENELEC's requirements of repeatability and reproducibility. (AHAM, No. 11 at p. 2, Whirlpool, No. 10 at pp. 1, 3) According to Whirlpool, the most commonly microwaved foods are hot cereal, bacon, pre-made baked goods, and frozen vegetables. However, Whirlpool stated the following about the lack of reproducibility of various foods:

• The nature and behavior of fresh foods varies over the year and by geographical region;

• Prefabricated foods change formulation over time and without notice. Various items are routinely added to and removed from the market;

• The composition of meats such as chicken, beef, and pork vary from not only by region, but also within each meat category, for example in the amount of fat or the size of granulation. (Whirlpool, No. 10 at p. 3)

AHAM and Whirlpool also commented that the IEC evaluated gels, but they were abandoned due to poor repeatability and excessive preparation time. (AHAM, No. 11 at p. 2, Whirlpool, No. 10 at p. 3) Whirlpool added that IEC Standard 60705 Edition 4.0, 2010-04, “Household microwave ovens—Methods for measuring performance,” (IEC Standard 60705 Fourth Edition) contains food loads, but that those are used for performance testing only and are not reproducible as is stated in the test standard. (Whirlpool, No. 10 at p. 2)

Whirlpool stated that the final temperature of the load must be correlated to normal usage ( i.e., heating food to “eating temperature”). AHAM and Whirlpool commented that a well-defined final temperature of food loads cannot be determined with sufficient accuracy to attain an acceptable level of repeatability. According to Whirlpool, infrared measurements will only detect surface temperature and thermocouples will just measure temperature in a few spots and as a result, cold/hot spots inside the food may not be found. (AHAM, No. 11 at p. 2, Whirlpool, No. 10 at pp. 2, 3)

Convection Microwave Ovens. Whirlpool noted that convection microwave ovens represent less than 4 percent of U.S. shipments and that qualitative data suggests that even when consumers own a convection microwave oven, the use of the convection microwave cooking function is very limited. Whirlpool commented that the European Commission established a mandate to define a test method for the microwave-only cooking function and that the convection microwave cooking function has not been on the agenda. However, Whirlpool noted that CENELEC tested convection microwave ovens but was unsuccessful at developing repeatable and reproducible test loads and testing procedures for the reasons discussed above. (Whirlpool, No. 10 at p. 1, 2)

Test Methods for DOE Test Procedure. Whirlpool commented that DOE should not attempt to develop a test procedure for both microwave-only and convection microwave ovens at this time because the challenge to develop just a microwave-only test procedure is significant. (Whirlpool, No. 10 at p. 1) AHAM commented that the issues associated with the test procedure are not unique to the United States because microwave ovens do not vary significantly across countries. AHAM noted that microwave ovens do not represent a large amount of energy consumption as compared to other products, and that DOE should not direct its limited resources to duplicate what another group has adequately done. (AHAM, No. 11 at p. 2)

AHAM and Whirlpool commented that if DOE proceeds with a test procedure, it should develop a test procedure for microwave-only ovens that is harmonized with IEC Standard 60705, which is currently being updated based on extensive testing. AHAM and Whirlpool noted that the draft revised IEC Standard 60705, which uses varying water loads (1000 grams (g), 350 g, and 275 g), was evaluated in a round robin testing program completed in July 2011 and the results verified that the testing procedures have acceptable repeatability and reproducibility. Whirlpool also commented that the three amounts of water defined in the test procedure give good correlation to “normal usage” and the water temperature rise of 50 degrees Celsius (°C) achieves eating temperature. (AHAM, No. 11 at p. 2, Whirlpool, No. 10 at pp. 3-4)

Based on DOE's determination to initiate a microwave oven active mode test procedure rulemaking and comments received on the October 2011 RFI discussed above, DOE conducted testing to evaluate potential amendments to its microwave oven test procedure to provide methods for measuring the active mode energy use for these products. The sections below present DOE's tests results and the analytical approaches that it is considering for potential amendments to the microwave oven test procedure to measure active mode energy use.

In order to evaluate potential amendments to the microwave oven test procedure, DOE selected a number of test units representative of products currently available on the U.S. market. DOE considered features such as installation configuration, cooking functions ( i.e., microwave cooking, convection microwave cooking), rated output power, and rated cavity volume. The test units and key features are presented below in Table 1. Unless otherwise noted, the test unit numbers presented in Table 1 correspond to the test units in the tables presenting test results in today's notice.

As discussed in section 0, DOE's previous active mode test procedure incorporated portions of IEC Standard 705. These test methods measured the amount of energy required to raise the temperature of 1 kilogram of water by 10 °C under controlled conditions. The ratio of usable output power over input power described the energy factor (EF), a measure of the cooking efficiency. 1 DOE noted that IEC is in the process of revising its current test standard for microwave ovens, IEC Standard 60705 Fourth Edition. In addition to the 10 °C temperature rise water load test from IEC Standard 705, the draft revised IEC Standard 60705 includes a new test method that continues to use water as the cooking load. The draft revised test method involves measuring the energy consumption required to heat water loads of 275 g, 350 g, and 1000 g, in 400 milliliter (ml), 900 ml, and 2000 ml borosilicate glass test containers, respectively, by 45-50 °C and 50-55 °C. The results from the two different temperature rise tests are used to linearly interpolate the energy consumption required to heat each load by 50 °C. The cooking cycle energy consumption for each water load size is then weighted based on consumer usage to calculate the weighted per-cycle cooking energy consumption. In addition to the cooking cycle energy consumption, the low power energy consumption while the microwave is cooling down after the completion of the cooking cycle is also measured for a 15-minute period. This energy consumption is then added to the cooking energy consumption to calculate an overall weighted per-cycle energy consumption. DOE recognizes that these draft revised IEC Standard 60705 testing methods may be subject to changes during the IEC review process, however DOE decided to consider this latest available draft revised test method for potential amendments to the DOE test procedure. Table 2 presents the key differences between IEC Standard 705 and the draft revised IEC Standard 60705.

Sections 1411, 1412, and 1414 of the Dodd-Frank Act create new TILA section 129C, which, among other things, establishes new ability-to-pay requirements and provides a presumption of compliance with those requirements if the mortgage loan is a “qualified mortgage.” On May 11, 2011, the Board published for notice and comment a proposed rule amending Regulation Z to implement new TILA section 129C. 76 FR 27390. The comment period closed on July 22, 2011.

As of July 21, 2011, the Dodd-Frank Act transferred the Board's rulemaking authority for TILA, among other consumer financial protection laws, to the Bureau. See sections 1061 and 1100A of the Dodd-Frank Act. Accordingly, all comment letters on the proposed rule were also transferred to the Bureau. In response to the proposed rule, approximately 1800 comment letters were received from numerous commenters, including members of Congress, lenders, consumer groups, trade associations, mortgage and real estate market participants, and individual consumers.

In addition, after the close of the original comment period, various interested parties, including industry and consumer group commenters, submitted to the Bureau oral and written ex parte presentations on the proposed rule. 1 Materials pertaining to these presentations are filed in the record and are publicly available at http://www.regulations.gov.

Through various comment letters, ex parte communications, and the Bureau's own collection of data, the Bureau has received additional information and new data pertaining to the proposed rule. The Bureau is interested in providing opportunity for additional public comment on these materials. Accordingly, the Bureau is issuing this notice to reopen the comment period until July 9, 2012 in order to request comment specifically on certain additional information or new data, as discussed in detail below. The Bureau is not soliciting comment on other aspects of the proposed rule. Therefore, the Bureau encourages commenters to limit their submissions accordingly.

The Bureau seeks comment on mortgage loan data that the Bureau has received from the Federal Housing Finance Agency (FHFA). 2 To date, the Bureau has received a sample drawn from the FHFA's Historical Loan Performance (HLP) dataset along with tabulations from the entire file. The data include a one percent random sample of all mortgage loans in the HLP dataset from 1997 through 2011; and tabulations of the HLP dataset by FHFA showing the number of loans and performance of those loans by year and debt-to-income (DTI) range.

The HLP dataset consists of all mortgage loans purchased or guaranteed by the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) (jointly with Fannie Mae, the “Enterprises”), but does not include loans backing private-label mortgage-backed securities (MBS) bought by the Enterprises. 3 The dataset contains loan-level information on characteristics and performance of all single-family mortgages purchased or guaranteed by the Enterprises. FHFA updates the HLP dataset quarterly with information from each Enterprise. Among other elements, the dataset includes product type; payment-to-income and debt-to-income (PTI/DTI) ratios at origination; initial loan-to-value (LTV) ratios based on the purchase price or appraised property value and the first-lien balance; and credit score(s) for the borrower(s).

The Bureau notes that in the context of the multi-agency 2011 Qualified Residential Mortgage Proposal (2011 QRM Proposal)  4 and in the Mortgage Market Note 11-02, FHFA has discussed or released historical loan performance data. In particular, the Bureau notes FHFA's discussion of the HLP dataset generally, including the limitations of the data, and the FHFA's release of historical data on loan volumes and delinquency rates, including any tabulations or data based on the HLP dataset, as provided in Mortgage Market Note 11-02. 5

FHFA's HLP dataset contains certain loan-level variables that can be used for a variety of data modeling and analysis. The Bureau proposes to use these data to tabulate volumes and performance of loans with varying characteristics and to perform other statistical analyses that may assist the Bureau in defining loans with characteristics that make it appropriate to presume that the lender complied with the ability-to-pay requirements or assist the Bureau in assessing the benefits and costs to consumers, including access to credit, and covered persons of, as well as the market share covered by, alternative definitions of a “qualified mortgage.” For example, the Bureau is examining various measures of delinquency and their relationship to other variables such as a consumer's total DTI ratio.

The tables below show the volume of loans and the percentage that were ever 60 days or more delinquent, tabulated by the total DTI on the loans and year of origination. The Bureau believes that loan performance, as measured by delinquency rate such as 60 days or more delinquent, is an appropriate metric to evaluate whether consumers had the ability to repay those loans at the time made. The Bureau notes that these specific tabulations include first-lien mortgages for first or second homes, that have fully documented income and that are fully amortizing with a maturity that does not exceed 30 years. The Bureau further notes that the tabulations do not include the following types of loans: loans for investor-owned properties, low- or no-document mortgages; interest-only (IO) mortgages; negatively-amortizing mortgages such as payment option-ARMs; or mortgages with a balloon payment feature. 6

The FHFA data are comprehensive and cover the entirety of mortgages purchased or guaranteed by the Enterprises. The Bureau has also acquired commercially available data on mortgages securitized into private label securities, 7 and expects to perform similar data modeling and analysis on this data. In addition, the Bureau is seeking supplemental data on loans held in portfolio and non-conventional loans insured or guaranteed by other federal agencies. These supplemental data sources may also be used to inform the Bureau's analysis.

Certain commenters and interested parties requested that the Bureau adopt a specific DTI ratio requirement for qualified mortgages. For example, some suggested that if a borrower's total DTI ratio is below a specified threshold, the mortgage loan should satisfy the qualified mortgage requirements, assuming other relevant conditions are met. In addition to a DTI requirement, some commenters and interested parties suggested that the Bureau should include within the definition of a “qualified mortgage” loans with a DTI above a certain threshold if the consumer has a certain amount of assets, such as money in a savings or similar account, or a certain amount of residual income. The Bureau notes, however, that available data do not provide information on certain non-collateral factors, such as liquid financial reserves, which would enable the Bureau to examine their relationship with measures of loan performance and a consumer's ability to repay. Accordingly, the Bureau seeks data, if available, from commenters or interested parties on such factors (in addition to DTI ratios as discussed above) and their relationship to measures of delinquency or their impact on the number or percentage of mortgage loans that would be a “qualified mortgage.”

1. The Bureau seeks comment on the dataset received from FHFA and commercially available data on mortgages securitized into private label securities, including the data source, parameters, and whether other data or studies are available or more appropriate for the purposes indicated above.

2. The Bureau requests data or tabulations for loans not covered in the FHFA data, including loans insured by the Federal Housing Administration (FHA loans), the Department of Veterans Affairs (VA loans), the Department of Agriculture and the Rural Housing Service (RHS loans); or loans held in portfolio or securitized outside of the Enterprises or a federal agency, which would be appropriate for the purposes indicated above.

3. The Bureau seeks comment and data on any measures of loan performance and their relationship to a consumer's DTI ratio.

4. The Bureau seeks comment and data on any measures of residual income, the use of such measures in loan underwriting, the relationship of these measures to loan performance, and their relationship to measures of consumer expenditures.

5. The Bureau seeks comment and data regarding any measures of the amount of liquid financial reserves available to meet (i) mortgage-related obligations or (ii) current obligations, the use of such measures in loan underwriting, and the relationship of these measures to loan performance.

6. The Bureau seeks comment and data regarding any measures of stable income and timely housing payments, the use of such measures in loan underwriting, and the relationship of these measures to loan performance.

In response to information received from commenters and ex parte communications, the Bureau is seeking comment and data on estimates of litigation costs and liability risks associated with claims alleging a violation of ability-to-repay requirements for a mortgage loan that is not a “qualified mortgage,” in addition to costs and risks that might apply to a “qualified mortgage.”

As discussed in detail in the proposal, section 1416 of the Dodd-Frank Act creates special remedies for violations of TILA section 129C(a) and provides that the statute of limitations for an action for a violation of TILA section 129C is three years from the date of the occurrence of the violation. In addition, section 1413 of the Dodd-Frank Act provides that a consumer may assert a violation of TILA section 129C as a defense to foreclosure by recoupment or set off without regard for the time limit on a private action for damages. However, new TILA section 129C, among other things, provides a presumption of compliance with the ability-to-repay requirements if the mortgage loan is a “qualified mortgage.” To implement this special protection from liability, the Board proposed two alternative definitions of a “qualified mortgage” that would provide either a legal safe harbor or a rebuttable presumption that the ability-to-repay requirements had been met.

Commenters and ex parte communications addressed various aspects of the alternative proposals implementing the presumption of compliance for a “qualified mortgage.” In particular, some commenters and interested parties presented estimates of the litigation costs associated with claims alleging a violation of the ability-to-repay requirements. Commenters and interested parties argued that these estimated costs should inform the Bureau's determination between a safe harbor or a rebuttable presumption as well as the scope of coverage of a “qualified mortgage.” Other commenters and interested parties noted that additional litigation costs should be considered, such as commercial litigation costs associated with “put-back” liabilities and risks for loans sold on the secondary market and extended foreclosure timelines because of ongoing ability-to-repay litigation.

An industry commenter and other interested parties argued that the estimated costs to creditors associated with litigation and penalties for an ability-to-repay violation could be substantial and provided illustrations of costs under the proposal, noting potential cost estimates of the possible statutory damages and attorney's fees. 8 For example, the total estimated costs and damages ranged between approximately $70,000 and $110,000 depending on various assumptions, such as the interest rate on a loan or whether the presumption of compliance is a safe harbor or rebuttable presumption. On the other hand, consumer group commenters and some ex parte communications asserted that the potential incidence of litigation is relatively small, and therefore liability cost and risk are minimal for any given mortgage creditor. 9 Consumer groups provided estimates of the number of cases in foreclosure and the percentage of cases that involve TILA claims, such as a claim of rescission. Consumer groups also provided percentages of borrowers in foreclosure who are represented by lawyers, noting the difficulty in bringing a TILA violation claim, and addressed estimates of litigation costs, such as attorney's fees.

The Bureau is reopening the comment period to seek comment and data on various factors the Bureau believes are relevant to analyzing estimated costs associated with litigation for a claim alleging a violation of ability-to-repay requirements, as described below.

Foreclosure and other times when a suit may be filed. The Dodd-Frank Act provides that a borrower may assert a violation of the ability-to-repay requirements as a defense to foreclosure. Therefore, the Bureau believes that estimates of serious delinquency and number of homes entering foreclosure are critical to measuring the potential costs of ability-to-repay litigation risk. Although aggregate data on serious delinquency and homes entering foreclosure are available from various sources such as the Mortgage Bankers Association National Delinquency Survey, the Bureau notes that more granular estimates of homes entering foreclosure can be estimated from the FHFA data and other data sources.

1. The Bureau seeks comment on the most appropriate measure of delinquency for purposes of calculating potential costs associated with ability-to-repay litigation in the foreclosure context.

2. The Bureau seeks comment on estimates of potential lawsuits asserting an ability-to-repay violation during the first three years after consummation—when the borrower has not yet defaulted but nevertheless sues the lender.

Number of potential litigants and complaints filed. Consumer groups argued that due to the complexity of mortgage-related litigation, such as a violation of TILA, asserting an ability-to-repay violation would require access to a lawyer. These groups noted that appropriate proxies for the number of complaints filed would be the percentage of borrowers in foreclosure who are represented by a lawyer as well as the number of other types of TILA violation cases. The Bureau notes that survey and other data indicate that a majority of borrowers in default would not have legal representation. 10

1. The Bureau seeks comment or data on whether and if so, how the number of lawsuits alleging an ability-to-repay violation would vary under the following circumstances:

(a) The mortgage loan is conceded not to be a “qualified mortgage.”

(b) The mortgage loan is claimed to be a “qualified mortgage.”

As noted above, sections 1413 and 1416 of the Dodd-Frank Act provide special statutory remedies for violations of TILA section 129C(a), which can include an award of damages in the amount equal to the sum of all finance charges and fees paid by the consumer within the three-year statute of limitations and in the case of a defense to foreclosure, recoupment or set off.

1. The Bureau seeks comment on the likelihood of potential outcomes of litigation, such as dismissal, summary judgment, settlement, or judgment after trial, and the effect on costs under various scenarios including:

(a) The mortgage loan is conceded not to be a “qualified mortgage.”

(b) The mortgage loan is claimed to be a “qualified mortgage.”

2. The Bureau seeks comment and data on assumptions about a loan, such as interest rate, purchase price, finance charges, and fees, required to calculate average amount of damages awarded in a TILA case involving a violation of the ability-to-repay requirements based on the scenarios listed above in paragraph 1.

3. The Bureau seeks comment on the impact of other aspects of damages, such as a consumer's attorney's fees, and lender's litigation costs.

1. The Bureau seeks comment on whether any additional factors should be considered in assessing the litigation-related costs associated with the ability-to-repay requirements.

2. The Bureau seeks comment and data on any other potential costs of ability-to-repay litigation, including:

(a) Costs associated with risks that loans are “put back” to originators by secondary market participants due to a potential ability-to-repay claim or proven violation. Factors that may determine the total cost of put backs may include: (i) Number and type of representation and warranty provisions in purchase and sale agreements going forward; (ii) number of loans that could potentially be put back; (iii) frequency of put backs being realized; and (iv) cost to lender net of any recovery through foreclosure or sale.

(b) Costs associated with extended foreclosure timelines due to ability-to-repay litigation.

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-2012-0588; Directorate Identifier 2012-NM-017-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 based on 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.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2012-05, dated January 13, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

Bombardier, Inc. has issued Service Bulletin 84-57-24, dated September 30, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

Based on the service information, we estimate that this proposed AD would affect about 83 products of U.S. registry. We also estimate that it would take about 9 work-hours 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. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $63,495, or $765 per product.

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);

3. Will not affect intrastate aviation in Alaska; and

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

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:

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-2012-0598; Directorate Identifier 2012-CE-017-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://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 European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No.: 2012-0073, dated April 30, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

HPH spol.s r.o. has issued Service Bulletin No.: G304CZ—06 a)_R01, G304C—06 a)_R01, G304CZ17—06 a)_R01, dated April 23, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are 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 estimate that this proposed AD will affect 10 products of U.S. registry. We also estimate that it would take about 6 work-hours 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 $233 per product.

Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $7,430, or $743 per product

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),

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

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

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0187; Directorate Identifier 2011-NM-094-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.

We issued an NPRM to amend 14 CFR part 39 to include an AD that would apply to certain The Boeing Company Model 757 airplanes. That NPRM published in the Federal Register on March 1, 2012 (77 FR 12506). That NPRM proposed to require modifying the fuel quantity indication system wiring or fuel tank systems to prevent development of an ignition source inside the center fuel tank.

That action (77 FR 12506, March 1, 2012) invites comments on regulatory, economic, environmental, and energy aspects of the proposal.

That action (77 FR 12506, March 1, 2012) was prompted by fuel system reviews conducted by the manufacturer. The actions specified by the NPRM are intended to prevent ignition sources inside the center fuel tank, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Since we issued the NPRM (77 FR 12506, March 1, 2012), we have received a request from Airlines for America (A4A), and James Hurd on behalf of the Families of TWA Flight 800, to extend the comment period. A4A requested a 60-day extension because of the extensive scope and significant potential impact of the NPRM, the lack of associated service information, and the need for proper review of the results of prototype efforts. A4A stated that this extension would provide operators additional time to develop estimates of technical methods of compliance with the NPRM, to develop estimates of the potential impact of those methods, and to prepare comments for the rules docket.

We have considered the commenters' request. We find it appropriate to extend the comment period to give all interested persons additional time to examine the proposed requirements and submit comments. We have determined that extending the comment period by 60 days will not compromise the safety of the affected airplanes.

The comment period for Docket No. FAA-2012-0187 closes August 6, 2012.

Because no other portion of the proposal or other regulatory information has been changed, the entire proposal (77 FR 12506, March 1, 2012) is not being republished.

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0386), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when the comment is successfully transmitted; a comment submitted via fax, hand delivery, or mail, will be considered as having been received by the Coast Guard when the comment is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu, select “Proposed Rule” and insert “USCG-2012-0386” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2012-0386” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

Each year an organized swimming event takes place in Lake Erie in which individuals swim the four miles between Lakeside and Kelley's Island, OH. The Captain of the Port Detroit has determined that swimmers in close proximity to watercraft and in the shipping channel pose extra and unusual hazards to public safety and property. Thus, the Captain of the Port Detroit has determined that establishing a Special Local Regulation around the location of the race's course will help ensure the safety of persons and property at these events and help minimize the associated risks.

To alleviate the extra and unusual hazards mentioned above, the Captain of the Port Detroit has determined that it is necessary to establish a Special Local Regulation. Accordingly, this proposed rule is intended to permanently establish a Special Local Regulation that coincides with the annual Kelley's Island Swim. The proposed Special Local Regulation will only be enforced annually on a single day in the second or third week in July from approximately 7:00 a.m. until 11:00 a.m. Due to the presence of swimmers in the water between Lakeside, OH and Kelley's Island, OH, the Coast Guard proposes that all vessels transiting the swim route shall proceed at a no-wake speed and maintain extra vigilance for people in the water. In addition, it is proposed that all vessels in the area yield right-of-way to swimmers and event safety craft. On-scene representatives may direct vessels to transit within or avoid certain areas during the race.

This proposed Special Local Regulation will encompass all navigable waters of the United States on Lake Erie, Lakeside OH, bound by a line extending from a point on land at the Lakeside dock at positions 41°32′51.96″ N; 082°45′3.15″ W and 41°32′52.21″ N; 082°45′2.19″ W and a line extending to Kelley's Island dock to positions 41°35′24.59″ N; 082°42′16.61″ W and 41°35′24.44″ N; 082°42′16.04″ W. The Captain of the Port will notify the affected segments of the public of the enforcement of this proposed Special Local Regulation by all appropriate means. Means of notification will include an annual publication of a Notice of Enforcement (NOE) in the Federal Register . Also, means of notification may include Broadcast Notice to Mariners and Local Notice to Mariners.

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

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this proposed rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The proposed Special Local Regulation will cover a relatively small area and exist for a relatively short time, and vessels will still be permitted to travel through the area, albeit with caution and reduced speed. Thus, restrictions on vessel movement within that particular area are expected to be minimal.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule will affect the following entities, some of which might be small entities: the owners and operators of vessels intending to transit or anchor in the portion Lake Erie, Lakeside, OH discussed above during the date and time of enforcement in the second or third week in July each year.

This proposed Special Local Regulation will not have a significant economic impact on a substantial number of small entities for the same reasons discussed in above Regulatory Planning and Review section .

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact ENS Benjamin Nessia, Response Department, MSU Toledo, Coast Guard; telephone (419) 418-6040, email Benjamin.B.Nessia@uscg.mil . The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a Special Local Regulation and is therefore categorically excluded under figure 2-1, paragraph (34)(h), of the Instruction. During the annual permitting process for this swimming event an environmental analysis will be conducted to include the effects of this proposed Special Local Regulation. Thus, no preliminary environmental analysis checklist or Categorical Exclusion Determination (CED) are required for this proposed rulemaking action. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Part 100 as follows:

Submitting Comments: We welcome comments from the public on issues set forth in this proposed rule to assist us in fully considering issues and developing policies. Comments will be most useful if they are organized by the paragraph of the proposed rule to which they apply. You can assist us by referencing the file code CMS-9965-P, and the specific “issue identifier” that precedes the section on which you choose to comment.

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: http://www.regulations.gov . Follow the search instructions on that Web site to view public comments.

Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.

Beginning in 2014, all non-grandfathered health plans in the individual and small group market, Medicaid benchmark and benchmark-equivalent plans, and Basic Health Programs, where applicable, will cover the essential health benefits (EHB), as defined by the Secretary of Health and Human Services (the Secretary). The Affordable Care Act directs that the EHB reflect the scope of benefits covered by a typical employer plan and cover at least the following ten general categories of items and services: ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and pediatric services, including oral and vision care. EHB will promote predictability for consumers who purchase coverage in these markets, facilitate comparison across health plans, and ensure that individual and small group subscribers have the same access to the same scope of benefits provided under a typical employer plan.

The Department of Health and Human Services (HHS) has provided the public with information about EHB in several phases:

• On December 16, 2011, HHS released a bulletin, following the report from the Department of Labor describing the scope of benefits covered under employer-sponsored coverage and an HHS commissioned study from the Institute of Medicine (IOM) that recommended criteria and methods for determining and updating essential health benefits, outlining its intended regulatory approach for defining EHB. The bulletin considered an intended approach in which EHB would be defined by a benchmark plan selected by each State. This State-specific benchmark plan would serve as a reference plan, reflecting both the scope of services and any limits offered by a “typical employer plan” in that State as required by section 1302(b)(2)(A) of the Affordable Care Act. In the December 16, 2011, bulletin, we laid out four potential benchmark plan types for 2014 and 2015. They are: (1) The largest plan by enrollment in any of the three largest small group insurance products in the State's small group market, (2) any of the largest three State employee health benefit plans by enrollment, (3) any of the largest three national Federal Employees Health Benefits Program plan options by enrollment, and (4) the largest insured commercial non-Medicaid health maintenance organization (HMO) operating in the State. We intend to propose these options in comprehensive rulemaking on EHB in the future. Health insurance issuers could adopt the scope of services and limits of the State benchmark, or vary it within defined parameters.

• On January 25, 2012, HHS released an illustrative list of the largest three small group market products by State.

• On February 17, 2012, HHS further clarified the approach described in the bulletin through a series of Frequently Asked Questions.

This proposed rule includes data reporting standards for health plans that represent potential State-specific EHB benchmarks, as described in the bulletin released on December 16, 2011. Specifically, the proposed rule would establish that issuers of the largest three small group market products in each State must report information on covered benefits.

In addition, this rule proposes the first phase of a two-phased approach for recognizing accrediting entities to implement the standards established under the Affordable Care Act for qualified health plans (QHPs) to be accredited on the basis of local performance by an accrediting entity recognized by the Secretary on a timeline established by the Exchange. In phase one, the National Committee for Quality Assurance (NCQA) and URAC would be recognized as accrediting entities on an interim basis. In phase two, a criteria-based review process would be adopted through future rulemaking.

Section 1302 of the Affordable Care Act provides for the establishment of EHB, to be defined by the Secretary and included in QHPs offered through an Exchange. In addition, section 2707 of the Public Health Service Act, as added by section 1201 of the Affordable Care Act, directs that on and after January 1, 2014, health insurance issuers offering non-grandfathered plans in the individual or small group market ensure such coverage includes EHB as described in section 1302(a) of the Affordable Care Act. The law also directs that EHB reflect the scope of benefits covered by a typical employer plan and cover at least the following ten general categories of items and services: ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and pediatric services, including oral and vision care. Section 1302(b)(4) of the Affordable Care Act establishes that the Secretary must define the EHB such that it:

• Sets an appropriate balance among the ten general categories;

• Does not discriminate based on age, disability, or expected length of life;

• Takes into account the health care needs of diverse segments of the population; and

• Does not allow denials of essential benefits based on age, life expectancy, disability, or degree of medical dependency and quality of life.

Section 1302(b)(4) of the Affordable Care Act further directs the Secretary to consider the provision of emergency services and dental benefits when determining whether a particular health plan covers the EHB. Finally, sections 1302(b)(4)(G) and (H) of the Affordable Care Act direct the Secretary to periodically review the EHB, report the findings of the review to the Congress and to the public, and update the EHB as needed.

Section 1311(c)(1)(D)(i) of the Affordable Care Act provides that in order to be certified as a QHP and operate in an Exchange, a health plan must be accredited. In a separate rule titled “Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans; Exchange Standards for Employers” (Exchange Rule) published in the March 27, 2012 Federal Register (77 FR 18310), HHS finalized 45 CFR 156.275, specifying that a QHP issuer must be accredited by an entity recognized by HHS.

HHS has consulted with a wide range interested stakeholders on policies related to EHB. First, the Department of Labor issued a report on April 15, 2011, describing the scope of benefits offered under employer-sponsored coverage. Second, the IOM issued a consensus report on October 7, 2011, providing its recommendations for the process HHS should use to define EHB.

Following the release of the IOM's recommendations, HHS held a number of listening sessions with consumers, providers, employers, health plans, and State representatives to gather public input. These sessions were held throughout the country.

HHS also released several documents for public review and comment. On December 16, 2011, HHS released a bulletin outlining its intended regulatory approach to defining EHB. HHS received approximately 11,000 comments in response to the bulletin. Commenters represented a wide variety of stakeholders, including health insurance issuers, consumers, health providers, States, employers, and Members of Congress. Among other topics, many commenters requested additional information on potential EHB benchmark plans, and urged HHS to publish the benefit designs of the selected benchmark plans as soon as possible. In particular, issuers emphasized that timely access to the benefits included in the benchmark is necessary to design health plans.

HHS considered the comments received on the bulletin in developing the policies in this proposed rule. HHS will continue to review the comments on the bulletin as we develop future policy related to EHB.

Regarding the recognition of accrediting entities, HHS received comments in response to the Exchange Rule. In addition, HHS conducted a review of the entities conducting health plan accreditation in the U.S. and found that substantially all issuers that have health plan accreditation are accredited by NCQA and/or URAC. 1

The regulations outlined in this proposed rule would be codified in 45 CFR part 156. The provision in part 156 outlines the standards for health insurance issuers with respect to participation in an Exchange, including the minimum certification requirements for QHPs. The provision in § 156.120 proposes data collection from certain issuers of applicable plans to define benchmark options for EHB.

Additional standards and guidance on the EHB package and phase two of the recognition of accrediting entities would be addressed in future rulemaking. Consistent standards related to the accrediting entities that would fulfill the accreditation requirements for multi-State plans would also be addressed in future rulemaking implementing section 1334 of the Affordable Care Act promulgated by the U.S. Office of Personnel Management.

Beginning in 2014, individuals and small businesses would be able to purchase private health insurance through competitive marketplaces called Affordable Insurance Exchanges (Exchanges). Exchanges would facilitate the purchase of insurance coverage by qualified individuals from QHPs and assist qualified employers in the enrollment of their employees into QHPs. See Affordable Care Act § 1311(b).

Beginning in 2014, non-grandfathered health insurance plans offered in the individual or small group market would offer EHB. See Affordable Care Act § 1301(a)(1)(B); Public Health Service Act § 2707(a). 2 Section 1302(b) of the Affordable Care Act directs the Secretary to define EHB in a way that includes at least the ten general categories of benefits described in the statute, and that is equal in scope to the benefits provided under a typical employer plan. Section 1321(a)(1) authorizes the Secretary to issue regulations setting standards for meeting the requirements of title I of the Affordable Care Act, including section 1302, as the Secretary determines appropriate.

The bulletin outlining HHS' intended regulatory approach stated that we are considering an approach whereby EHB would be defined by a benchmark plan selected by each State. 3 The selected benchmark plan would serve as a reference plan, reflecting both the scope of benefits and any limits contained in the plan, as required by section 1302(b)(2)(A) of the Affordable Care Act. If a State does not exercise the option to select a benchmark health plan, we intend to propose in future rulemaking that the default benchmark plan for that State would be the largest plan by enrollment in the largest product in the State's small group market. Under this approach, the specific set of benchmark benefits defined using the data collected in 2012 would apply for plan years 2014 and 2015. 4 We intend to revisit this approach for plan years starting in 2016 and would provide additional information through subsequent rulemaking.

The purpose of this proposed rule is to collect sufficient information on potential benchmark plans' benefits to enable plans seeking to offer coverage in the individual or small group market in 2014 to know what benefits will be included in the EHB benchmark. This proposed rule would add new regulation text at 45 CFR 156.120.

Finally, to implement the accreditation provisions of the Affordable Care Act relating to QHPs, we are proposing the first phase of a two-phased approach for recognizing accrediting entities. In this rule, we propose to recognize, on an interim basis, those entities that best meet the requirements stipulated in section 1311(c)(1)(D)(i) of the Affordable Care Act. In phase two, we currently plan to adopt, through future rulemaking, a recognition process that includes an application procedure, standards for recognition, a criteria-based review of applications, public participation, and public notice of the recognition. At this time, we have determined that recognizing entities through the phase one process outlined above is necessary to meet the timeline for Exchange QHP certification activities which must commence in early 2013. Exchanges may include the accreditation requirements as early as 2013 certification, for the 2014 plan year.

Under § 156.120(a), we propose definitions for terms that are used throughout the section. For the most part, the definitions presented in § 156.120(a) are taken from existing regulations.

We propose to define “health benefits” as “benefits for medical care, as defined at § 144.103 of this chapter, that may be delivered through the purchase of insurance or otherwise.” This proposed definition is adapted from the definition of health benefits finalized in the Early Retiree Reinsurance Program regulation at 45 CFR 149.2.

We propose that “health plan” has the meaning given to the term “portal plan” in § 159.110 of this chapter, which is the discrete pairing of a package of benefits and a particular cost sharing option (not including premium rates or premium quotes).

We propose that “health insurance product” has the meaning given to the term at § 159.110 of this chapter, which is a package of benefits that an issuer offers that is reported to State regulators in an insurance filing. We propose that “small group market” has the meaning given to the term in § 155.20 of this chapter, which is the meaning in section 1304(a)(3) of the Affordable Care Act. We also propose that “State” has the meaning given at § 155.20. We note that the Public Health Service Act definition of “State” that would apply to section 2707(a) is broader than the definition in section 1304 of the Affordable Care Act.

We propose that “treatment limitations” have the meaning found in § 146.136 of this chapter, which includes both quantitative and non-quantitative limits on benefits. Examples of quantitative limits include limits based on the frequency of treatment, days of coverage, or other similar limits on the scope and duration of treatment. Examples of non-quantitative limits include prior authorization and step therapy requirements.

Additionally, throughout this proposed rule we refer to “issuers” which is defined in previous rulemaking at 45 CFR 156.20.

In § 156.120(b), this rule proposes that certain issuers of applicable plans described in paragraph (c) of this section submit certain benefit and enrollment information to HHS. This information would be used by HHS and eventually States, Exchanges, and issuers to define, evaluate, and provide the EHB.

First, at § 156.120(b)(1), we propose that the relevant issuers would submit administrative data necessary to identify their health plan. Since an issuer may offer multiple similar plans within a product, this information is critical to the identification of a single, uniquely identified benchmark plan.

At § 156.120(b)(2), we propose that the relevant issuers would submit data and descriptive information on the plans identified in paragraph (d) in four areas. Additional detail describing the specific data elements that issuers would submit can be found in the revision of the currently approved Health Insurance Web Portal information collection request (ICR). The ICR is approved under OCN: 0938-1086, and would be made available to the public under a notice and comment period separate from this notice of proposed rulemaking. Section 156.120(b)(2)(i) proposes that certain issuers submit information on covered health benefits in the applicable plans. This information is needed to define certain benchmark plan options.

Section 156.120(b)(2)(ii) proposes to collect from issuers data on any treatment limitations imposed on coverage, if applicable. For example, a quantitative scope and duration treatment limitation might limit a physical therapy benefit to 10 physical therapy visits per year.

At § 156.120(b)(2)(iii), we propose to collect data on drug coverage. This would include a list of covered drugs and information on whether each drug is subject to prior authorization and/or step therapy.

At § 156.120(b)(2)(iv) we propose to collect plan enrollment data, which is discussed in more detail in the “Plans Impacted” section below.

We are soliciting comment on other data elements that may be necessary to ensure that health plans offer EHB.

Section 156.120(c) of this proposed regulation specifies that these reporting requirements would apply only to certain issuers. Specifically, we propose to collect data from the issuers in each State that offer the three largest health insurance products, by enrollment, in that State's small group market. We propose that enrollment data submitted to www.HealthCare.gov would be the source of product enrollment and therefore, the products eligible to be benchmarks based on enrollment (described in part 159 of this title) on March 31, 2012, the date set forth in the bulletin. State data may vary from www.HealthCare.gov data, and we request comment on whether States should be permitted to use an alternative data source for determining the enrollment in the small group market. We are also soliciting comment on whether closed block products or association products should be included as options in the selection of the largest three products.

Under the approach outlined in the December 16, 2011 bulletin, States would be permitted to select their own benchmark plans from a set of options. State submissions of these selections are information collections under the PRA. As noted below, we seek comment on the draft instructions for States to submit benefits for their selected benchmark plan.

In § 156.120(d), we propose that issuers of the largest three products in each State provide information based on the plan with the highest enrollment within the product. For purposes of identifying the benchmark plan, we identify the plan following the definition of “portal plan” in § 159.110 of this chapter.

Issuers may use their own data to determine which plan within each product has the highest enrollment, although we expect for many products, the benefits will be the same across plans within the product. Enrollment data should reflect a plan's entire service area and to the extent possible should align with the timing of the www.HealthCare.gov data collection (reflecting enrollment as of March 31, 2012). We seek comment on the necessity of plan-level specificity.

Finally, § 156.120(e) proposes that issuers described in subparagraph (c) submit the information described in subparagraph (b) to HHS in a form and manner to be determined by HHS. We intend to make information on final State selections of benchmarks publicly available as soon as possible so that issuers can use it for benefit design and rate setting for 2014. We welcome public comment on this approach. See below for more information on how to comment on the data collection, in addition to the draft approach to how and when plans should submit the data.

Beginning in 2014, QHPs and other non-grandfathered health insurance plans in the individual and small group market will offer the EHB. Section 1302(b) of the Affordable Care Act outlines the ten statutory benefit categories, including pediatric oral care, which must be included by those plans. Section 1302(b)(4)(F) allows QHPs in an Exchange in a State to choose not to offer coverage for pediatric oral services provided that a stand-alone dental benefit plan that covers pediatric oral services is offered through the same Exchange.

In order for QHPs to know whether their plan design must include pediatric oral services, issuers need to know if stand-alone dental plans would be offered through their Exchange. To facilitate and streamline the communication of this information, we propose to collect, on a voluntary basis, information from likely stand-alone dental issuers to find out whether various Exchanges are likely to have stand-alone plans as options. Therefore, we are requesting that issuers that intend to offer stand-alone dental plans in any Exchange notify HHS of their intent to participate. We intend to provide further guidance that explains the format and date by which stand-alone dental issuers can begin to submit this information.

Section 1311(c)(1)(D)(i) of the Affordable Care Act directs a health plan to “be accredited with respect to local performance on clinical quality measures * * * by any entity recognized by the Secretary for the accreditation of health insurance issuers or plans (so long as any such entity has transparent and rigorous methodological and scoring criteria).” At this time, HHS has determined that recognizing entities through an interim phase one process is necessary to meet the timeline for Exchange QHP certification activities, which must commence in early 2013 and may include the accreditation requirement, depending on the uniform timeline established by an Exchange. After a survey of the market, to HHS's knowledge, only two entities that accredit health plans meet or plan to meet the statutory requirements this year. We propose recognition of the National Committee for Quality Assurance (NCQA) and URAC on an interim basis for the purpose of accreditation of QHPs, subject to the conditions specified in paragraphs (c)(2) through (4) of § 156.275 of this proposed rule. We propose for this recognition to be effective once these conditions are met, at which time HHS would provide notification in the Federal Register . This recognition as an approved entity for accreditation of QHPs is effective until it is rescinded or this interim phase one process is replaced by the process that we intend to identify in § 156.275(c)(1)(ii) in future rulemaking. We intend for the future recognition process to include an application procedure, standards for recognition, a criteria-based review of applications, public participation, and public notice of the recognition for entities seeking to become a recognized accrediting entity. We solicit comments to inform this future rulemaking. We request comment on whether or not there are other accrediting entities that meet or would meet the statutory requirements this year.

We propose recognition of NCQA and URAC as accrediting entities because our review indicates that these accrediting entities currently issue or plan to issue health plan accreditation that meets the conditions for recognition as detailed in paragraphs (c)(2) through (4) of this proposed rule. The majority of people currently enrolled in private health plans are in health plans accredited by these two entities. 5 We solicit comment on our proposal to recognize accrediting entities on this basis and whether or not there are other entities that accredit health plans that meet the requirements of section 1311(c)(1)(D)(i) of the Affordable Care Act.

The first condition of recognition is based on section 1311(c)(1)(D)(i) of the Affordable Care Act, which requires accreditation on local performance in nine categories, which are codified in 45 CFR 156.275(a)(1):

• Clinical quality measures such as the Healthcare Effectiveness Data and Information Set (HEDIS);

• Patient experience ratings on a standardized Consumer Assessment of Healthcare Providers and Systems (CAHPS) survey;

• Consumer access;

• Utilization management;

• Quality Assurance;

• Provider credentialing;

• Complaints and appeals;

• Network adequacy and access; and

• Patient information programs.

In § 156.275(c)(2)(ii) through (iv), we propose requirements to interpret and further implement the statutory accreditation requirements. We solicit comments on each of these three additional provisions.

We propose in § 156.275(c)(2)(ii) that the clinical quality measures meet certain criteria in order for the accreditation to meet the requirements outlined in section 1311(c)(1)(D) of the Affordable Care Act and 45 CFR 156.275(a)(1)(i). These criteria were chosen based on stakeholder input and to ensure that the clinical quality measures used in accreditation are applicable to the Exchange enrollee population.

We propose that the clinical quality measure set must:

• Span a breadth of conditions and domains, including, but not limited to, preventive care, mental health and substance abuse disorders, chronic care, and acute care;

• Include measures that are applicable to adults and separate measures that are applicable to children;

• Align with the priorities of the National Strategy for Quality Improvement in Health Care issued by the Secretary and submitted to Congress on March 12, 2011 (see http://www.healthcare.gov/law/resources/reports/quality03212011a.html ) and the National Quality Strategy: 2012 Annual Progress Report released by HHS on April 30, 2012 (see http://www.healthcare.gov/news/factsheets/2012/04/national-quality-strategy04302012a.html );

• Only include measures that are either developed or adopted by a voluntary consensus standards setting body (such as those described in the National Technology and Transfer Advancement of Act of 1995 (NTTAA) and Office of Management and Budget (OMB) Circular A-119 (1998)) or, where appropriate endorsed measures are unavailable, are in common use for health plan quality measurement and meet health plan industry standards; and,

• Be evidence based.

We solicit comments on these standards for clinical quality measures, including whether additional standards for such measures should be included, the standards for using endorsed and non-endorsed measures, and whether HHS should require entities seeking recognition as accrediting entities to review specific clinical measures as part of accreditation and if so, which ones.

We are aware that URAC does not currently include clinical quality measures or patient experience ratings on a CAHPS survey in its accreditation standards for health plans. Based on URAC's recent press release and whitepaper, 6 URAC plans to release the Health Plan Accreditation Program 7.0, which includes reporting on a CAHPS survey and a set of clinical performance measures, and would allow for the flexibility to add additional clinical measure requirements specified for Exchanges. Because our proposal is to recognize NCQA and URAC on the condition that accreditation be provided consistent with § 156.275(c)(2), recognition of URAC would depend on URAC's implementation of this plan and our review and approval of its new accreditation measures.

In § 156.275(c)(2)(iii), we propose that recognized accrediting entities provide separate accreditation determinations for each product type offered by a QHP issuer in each Exchange (for example, Exchange HMO, Exchange point of service (POS), and Exchange PPO), based on data submitted by the issuer that is representative of the population of each QHP in that Exchange product type. We believe that the product type is the appropriate level for accreditation as it would balance capturing the QHP experience and enabling the reporting of valid and reliable performance measures. An issuer may offer multiple QHPs under the same product type, in the same Exchange, but if the product type for that Exchange is accredited, each of the corresponding QHPs would be considered to be accredited. We solicit comments on the proposed level of accreditation. We also solicit comments on circumstances under which an exception should be made to the accreditation determination being made at the Exchange product type level.

As part of our proposal that recognized accrediting entities include network adequacy and access in the accreditation standards, we propose in subparagraph (c)(2)(iv) that the network adequacy and access standards outlined in section 1311(c)(1)(D) of the Affordable Care Act and 45 CFR 156.275(a)(1)(viii) must, at a minimum, be consistent with the general requirements for network adequacy standards for QHP issuers codified in § 156.230(a). We solicit comments on this proposed requirement.

In § 156.275(c)(3), we propose that each recognized accrediting entity must use transparent and rigorous methodological and scoring criteria. This requirement is taken from section 1311(c)(1)(D)(i) of the Affordable Care Act.

In § 156.275(c)(4), we propose that each accrediting entity recognized by the Secretary, as a condition of gaining and maintaining recognition, provide to HHS its current accreditation processes to demonstrate that the entity meets the conditions described in § 156.275(c)(2) and (3). Documentation should include accreditation standards and requirements, processes, and measure specifications for performance measures. We propose that the initial submission of documentation be made at a time specified by HHS. We solicit comment on this timing requirement, specifically whether NCQA and URAC may only be recognized if this required documentation is provided within a certain number of days of the final rule.

Recognized accrediting entities must also submit any proposed changes or updates to the accreditation and measurement process with 60 days notice prior to implementation such that HHS has ample opportunity to review and comment on whether these changes or updates are significant enough to mean that the conditions in § 156.275(c)(2) and (3) would no longer be met. We are soliciting comments on these documentation requirements.

As codified in § 156.275(a)(2), a QHP issuer must authorize the accrediting entity that accredits its QHPs to release to the Exchange and HHS certain materials related to QHP accreditation. In accordance with this requirement, we propose that when authorized by an accredited QHP issuer, recognized accrediting entities provide the following accreditation survey data elements to the Exchange in which the issuer plans to operate one or more QHPs during the annual certification period or as changes occur to these data throughout the coverage year:

• The name, address, Health Insurance Oversight System (HIOS) issuer identifier, 7 and unique accreditation identifier(s) of the QHP issuer.

• The QHP issuer's accredited product line(s) (that is, Commercial, Medicaid, Exchange) and type(s) which have been released;

• For each of the QHP issuer's accredited product type, HIOS product identifier (if applicable); accreditation status, survey type or level (if applicable); accreditation score; expiration date of accreditation; and clinical quality measure results and adult and child CAHPS measure survey results (and corresponding expiration dates of these data) at the level specified by the Exchange (for example, QHP product or plan level).

We solicit comment, including whether fewer or more categories of information should be required for HHS to continue recognition of these entities.

Our proposal would permit Exchanges to arrange additional data sharing agreements with the recognized accrediting entities if they choose to require additional information, such as information on the QHP issuer's policies and procedures. We are soliciting comments on these data sharing requirements. We solicit comment whether to incorporate a requirement that recognized accrediting entities must provide this additional information upon request from an Exchange.

Under the Paperwork Reduction Act of 1995, we are required to provide 60-day notice in the Federal Register and solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval. In order to fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the PRA requires that we solicit comment on the following issues:

• The need for the information collection and its usefulness in carrying out the proper functions of our agency.

• The accuracy of our estimate of the information collection burden.

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

• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements (ICRs):

Proposed § 156.120 states that issuers that offer the three largest health insurance products by enrollment in each State's small group market, as determined by HHS based on data submitted in accordance with part 159 of this title for March 31, 2012, must provide the data described in paragraph (b) for the health plan with the highest enrollment within that product. This data collection mirrors the benefit data fields currently collected under the Health Insurance Web Portal PRA package (OCN: 0938-1086) and also includes: The administrative data necessary to identify the health plan, data on covered benefits, any treatment limitations on those benefits, data on drug coverage, and enrollment. This information would have to be submitted to HHS in a form and manner determined by HHS. The burden associated with meeting this requirement includes the time and effort needed by the issuer to compile the benefit coverage information and submit the information to HHS in a form and manner determined by HHS. Adding the limit data collection needed to establish EHB benchmarks to the benefit data already collected and updated on a regular basis would maximize issuers' ability to leverage current business systems and processes. We estimate that it would take 4 hours for a health insurance issuer to meet this reporting requirement, including data collection, submission, and validation. This estimate is based on current industry surveys collected to monitor the burden of submission of similar data in the Medicare Advantage and Prescription Drug Programs.

Given that the three health insurance issuers with the largest products by enrollment in each State (including the District of Columbia) would submit this information, the total burden is estimated to be 612 hours. We anticipate that the reporting requirement would require four hours for one employee at a cost of $77.00 an hour, based on the hourly cost reported by industry in responses to a CMS survey of Medicare Advantage and Prescription Drug Programs which requires employees with similar technical expertise, for a total cost of $308.00 a year per issuer. The total number of respondents required to report would be 153, the largest three issuers/products in each State and the District of Columbia by enrollment, for a total burden of $47,124. The data elements on which issuers would report are listed in the ICR released concurrently with this notice of proposed rulemaking. Issuers would provide HHS with the data collection requirements through an online tool that we would make available to them.

Proposed § 156.275(c)(4) requires recognized accrediting entities to submit documentation to HHS as a condition of gaining and maintaining recognition. This documentation includes accreditation standards and requirements, processes, and measure specifications for performance measures. The burden associated with meeting this requirement is for an analyst level employee at the recognized accrediting entity to compile the documentation and electronically transmit it to HHS. It is assumed that these accreditation standards and requirements, processes, and measure specifications for performance measures would not be changed more than once per year. We estimate 2 burden hours in 1 year for each of the accrediting entities at a cost of $110 for a total of $220. 8

Proposed § 156.275(c)(5) also requires recognized accrediting entities to share accreditation survey data with the Exchange once the release of these data have been authorized by the QHP issuer. To comply with this information collection, the recognized accrediting entities would need to collect the Health Insurance Oversight System (HIOS) issuer identification from each issuer offering an Exchange QHP and seeking accreditation from the recognized accrediting entity. We estimate that the burden associated with meeting this requirement would be in revising the contract language with the issuer and then inputting the HIOS issuer identification into the accrediting entities' database once the HIOS issuer ID has been provided by the issuer. To fulfill this requirement, we are estimating approximately 17 hours of work for an analyst at each accrediting entity with the vast majority of that time used to input the data. The cost burden associated with this requirement is estimated to be $940. Second, the accrediting entity would need to organize its accreditation data elements specified in proposed § 156.275(c)(5) to match the data template provided by each Exchange. We are assuming 51 State-based Exchanges and we are assuming that this will require five hours of labor per Exchange for a total of 255 burden hours for an operations analyst at each accrediting entity. The cost burden associated with this is $14,025. Third, each accrediting entity would need to supply the data elements to each Exchange once per month as these data are updated. We are estimating that this process would take one hour per Exchange each month for a total hour burden of 612 hours and a cost burden of $33,660 per year.

In total, the hour burden for each accrediting entity is 884 hours and the total cost burden per accrediting entity is $48,625. For both of the accrediting entities, the hour burden is 1772 and the cost burden is $97,470.

This proposed rule imposes collection of information requirements as outlined in the regulation text and specified above. However, this proposed rule also makes reference to several associated information collection requirements that are not discussed in the regulations text contained in this document. The following is a discussion of these requirements.

We request that States indicate to HHS their benchmark plan selection and provide information on this plan in the format that issuers are required to use, which leverages the current data collection for the Health Insurance Web Portal, as described above at the same time CMS collects benefit information from the three largest small group market plan issuers in each State. However, if a State selects as its benchmark one of the three largest small group market benchmark options, for which HHS proposes to collect data to establish default benchmarks, the State may choose to rely on the issuer submission and provide HHS with only the name of the plan and other necessary identifying information. If the State relies solely on issuer data, HHS would review the data to ensure benefits in all ten categories, required by statute are offered. We further note that States may voluntarily provide information on State benefit mandates. We estimate that it would take each State that selects a benchmark five hours to make a benchmark determination, compile the data, and submit the information in the required format to HHS. If a State selects one of the top three small group market plans and chooses to identify its selection by name only, we believe the burden would be less than five hours. At this time we do not have any way to accurately estimate how many States would opt to select a benchmark. We will accept comments on this issue.

We request that issuers that intend to offer stand-alone dental plans in any State Exchange or in the Federally-facilitated Exchange voluntarily notify HHS of their intent to participate. This collection, which would also be a revision of the Health Insurance Web Portal PRA package (OCN: 0938-1086), includes data on whether the issuer intends to offer stand-alone coverage, the anticipated Exchange market in which coverage would be offered, and the State and service area in which the issuer intends to offer coverage in the Exchange.

The burden associated with this voluntary submission includes the time and effort needed by the issuer to report on whether it intends to offer stand-alone dental coverage. We estimate that it would take 0.5 hours for a health insurance issuer to submit this information. We estimate that approximately 20 issuers would respond to this data collection. Therefore, the total burden is estimated to be 10 hours. We anticipate that the reporting would require one employee at a cost of $77.00 an hour for a total cost of $38.50 a year per issuer. The total number of respondents is estimated to be approximately 20, for a total burden of $770.

If you comment on these information collection and recordkeeping requirements, please do either of the following:

1. Submit your comments electronically as specified in the ADDRESSES section of this proposed rule; or

2. Submit your comments to the Office of Information and Regulatory Affairs, Office of Management and Budget,

We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993) and Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011). Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year).

It is HHS's belief that this rule does not reach this economic threshold and thus is not considered a major rule. This rule consists of a data collection from a limited number of health insurance issuers and a data submission by two accrediting entities to HHS. Because of the very limited scope of this proposed rule, we do not anticipate that there would be any costs associated with this rulemaking in addition to those costs, as outlined below. We derived the costs outlined below from the labor costs as outlined in the Information Collection section above. The data collection from issuers only applies to the issuers of the three largest products by enrollment in each State's small group market, which would result in a minor economic burden to an estimated 153 issuers, at a total cost across all issuers of $47,124. The PRA package that accompanies this proposed rule requests that issuers that wish to offer stand-alone dental plans in an Exchange notify HHS of their intent to participate. We estimate that 20 dental issuers would voluntarily respond, at a total cost across all responding issuers of $770. The two entities which we are proposing to recognize as accrediting entities already meet most of the conditions for recognition, and we anticipate that any required changes to their accreditation processes would be minor and result economic burden that we have estimated at $48,625.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA) requires agencies to prepare an initial regulatory flexibility analysis to describe the impact of the proposed rule on small entities, unless the head of the agency can certify that the rule would not have a significant economic impact on a substantial number of small entities. The RFA generally defines a “small entity” as—(1) A proprietary firm meeting the size standards of the Small Business Administration (SBA); (2) a not-for-profit organization that is not dominant in its field; or (3) a small government jurisdiction with a population of less than 50,000. States and individuals are not included in the definition of “small entity.” HHS uses as its measure of significant economic impact on a substantial number of small entities a change in revenues of more than 3 percent.

The RFA requires agencies to analyze options for regulatory relief of small businesses, if a proposed rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small government jurisdictions. Small businesses are those with sizes below thresholds established by the Small Business Administration (SBA).

As discussed above, this proposed rule is necessary to implement certain standards related to the establishment of essential health benefits and recognition of accrediting entities as authorized by the Affordable Care Act. Specifically, this rule proposes collecting data from issuers that offer the three largest small group products in each state and from NCQA and URAC, which are the Phase I recognized accrediting entities. For the purposes of the regulatory flexibility analysis, we expect the following types of entities to be affected by this proposed rule—(1) QHP issuers (2) and NCQA and URAC.

As discussed in the Medical Loss Ratio interim final rule (75 FR 74918), few, if any, issuers are small enough to fall below the size thresholds for small business established by the SBA. In that rule, we used a data set created from 2009 National Association of Insurance Commissioners (NAIC) Health and Life Blank annual financial statement data to develop an updated estimate of the number of small entities that offer comprehensive major medical coverage in the individual and group markets. For purposes of that analysis, the Department used total Accident and Health earned premiums as a proxy for annual receipts. We estimated that there are 28 small entities with less than $7 million in accident and health earned premiums offering individual or group comprehensive major medical coverage. However, this estimate may overstate the actual number of small health insurance issuers offering such coverage, since it does not include receipts from these companies' other lines of business. 9 We further estimate that any issuers that would be considered small businesses are likely to be subsidiaries of larger issuers that are not small businesses.

This proposed rule also requires two accrediting entities, NCQA and URAC, to submit documentation to HHS. The RFA, as noted previously, considers a non-profit entity that is not dominant in its field to be a small entity. We selected both NCQA and URAC because they are the two most dominant actors in the field of health plan accreditation. NCQA is a not-for-profit entity that has been in existence since 1990 and is widely recognized as a national leader in developing health care performance measures and quality standards. NCQA has accredited health plans covering over 70 percent of all Americans. 10 URAC is also a not-for-profit entity that was formed over 20 years ago. URAC accredits plans in every state and, according to its Web site, is the largest accrediting body for health care. 11 Finally, based on their dominant role in accrediting health plans, we believe that NCQA and URAC are both likely to have total annual receipts exceeding the Small Business Administration size standard. 12

Based on the foregoing, we are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this proposed rule would not have a significant economic impact on a substantial number of small entities.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing proposed rule (and subsequent final rule) that includes any Federal mandate that may result in expenditures in any one year by a State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. In 2012, that threshold is approximately $139 million. UMRA does not address the total cost of a rule. Rather, it focuses on certain categories of costs, mainly those “Federal mandate” costs resulting from: (1) Imposing enforceable duties on State, local, or Tribal governments, or on the private sector; or (2) increasing the stringency of conditions in, or decreasing the funding of, State, local, or tribal governments under entitlement programs.

This proposed rule does not place any financial mandates on State, local, or Tribal governments. This rule authorizes a narrow data collection from an estimated 153 issuers, and the only costs associated with this reporting are labor costs, which we anticipate to total $47,124, which is significantly less than the threshold of $139 million. States may, at their option, select a benchmark plan and submit this information to HHS. We anticipate that it would take each State five hours of labor to complete and submit this information and that the per hour labor cost would be similar to that for the issuer data submission, which is $77 per hour. We cannot reasonably anticipate how many States would respond. However, assuming for the sake of argument that all States respond, the total cost would still be under $20,000, which is well below the $139 million threshold. The rule also proposes to have two accrediting entities submit documentation to HHS as specified in the rule. We expect the cost to the two accrediting entities to be $48,898.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct costs on State and local governments, preempts State law, or otherwise has Federalism implications. This proposed regulation, as it relates to the recognition of accrediting entities, does not impose any costs on State or local governments. However, this proposed regulation includes reporting requirements if a State selects a benchmark plan.

In compliance with the requirement of Executive Order 13132 that agencies examine closely any policies that may have Federalism implications or limit the policy making discretion of the States, HHS has engaged in efforts to consult with and work cooperatively with affected States, including participating in conference calls with and attending conferences of the National Association of Insurance Commissioners (NAIC), and consulting with State insurance officials on an individual basis. We believe that this proposed rule does not impose substantial direct costs on State and local governments, preempt State law, or otherwise have federalism implications. We note that States that choose to select a benchmark plan would be required to submit their benchmark plan selection to HHS, and provide information on the benchmark plan in the same format that is used by issuers. However, we anticipate that the administrative costs related to this requirement are likely to be minimal because the States are likely to obtain this information from the issuers.

Pursuant to the requirements set forth in section 8(a) of Executive Order 13132, and by the signatures affixed to this regulation, the Department of Health and Human Services certifies that CMS has complied with the requirements of Executive Order 13132 for the attached proposed regulation in a meaningful and timely manner.

For the reasons set forth in the preamble, the Department of Health and Human Services proposes to amend 45 CFR subtitle A, subchapter B, as set forth below:

Background

On September 8, 2011 (76 FR 55623), we published in the Federal Register a combined 12-month finding and proposed rule to list Arctostaphylos franciscana as endangered. That proposal had a 60-day comment period, ending November 7, 2011. We received no requests for a public hearing; therefore, no public hearing will be held.

We will accept written comments and information during this reopened comment period on our proposed listing for Arctostaphylos franciscana that published in the Federal Register on September 8, 2011 (76 FR 55623). We will consider information and recommendations from all interested parties. We intend that any final action resulting from this proposal be as accurate as possible and based on the best available scientific and commercial data. For more information on the specific information we are seeking, please see the September 8, 2011, proposed listing rule (76 FR 55623).

If you previously submitted comments or information on the proposed rule, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final determination. Our final determination concerning this proposed listing and critical habitat will take into consideration all written comments and any additional information we receive.

You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit a comment via http://www.regulations.gov , your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment 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.

Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0049, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ). You may obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2010-0049, or by mail from the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Request for Information

When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the southern white-tailed ptarmigan and the Mt. Rainier white-tailed ptarmigan from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We particularly seek the following information regarding the southern and Mt. Rainier white-tailed ptarmigans:

(1) Biology, range, and population trends, including:

(a) Taxonomy (especially the genetics of the species and subspecies);

(b) Historic and current range, including distribution patterns; and

(c) Historic and current population levels, and current and projected trends.

(2) Past and ongoing conservation measures and management programs for the species, its habitat, or both.

(3) The potential effects of climate change on habitats.

We also seek information on the following five threat factors used to determine if a species, as defined by the Act, is endangered or threatened under section 4(a) of the Act (16 U.S.C. 1531 et seq. ):

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

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

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

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

Of particular interest to us is information on the potential cumulative effects of the five threat factors listed above.

If, after the status review, we determine that listing the southern or Mt. Rainier white-tailed ptarmigan is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act), in accordance with section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information on:

(1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species.

(2) Where these features are currently found.

(3) Whether any of these features may require special management considerations or protection.

(4) Specific areas outside the geographical area occupied by the species that are “essential for the conservation of the species.”

(5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.

We will base our 12-month finding on a review of the best scientific and commercial information available, including all information we receive during this public comment period. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

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. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue a 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act.

You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. 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 personal identifying 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.

Information and supporting documentation that we received and used in preparing this 90-day finding are available for you to review at http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Colorado Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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

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

On August 24, 2010, we received a petition of the same date prepared by Noah Greenwald for the Center for Biological Diversity (petitioner) requesting that we list either the U.S. population or the Rocky Mountains population of the white-tailed ptarmigan ( Lagopus leucura ) as threatened and to designate critical habitat. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required by 50 CFR 424.14(a). The petition specifically requested that we list either the contiguous U.S. population of white-tailed ptarmigan as a distinct population segment or list only the Rocky Mountain population as a distinct population segment under the Act. On May 6, 2011, we notified the petitioner that we received the petition and requested copies of the references cited.

In a July 20, 2011, letter we informed the petitioner that we had reviewed the information presented in the petition and determined that each of the requested distinct population segments included multiple, recognized subspecies of white-tailed ptarmigan. Therefore, we could not accurately evaluate the discreetness and significance criteria for the two requested population segments according to our Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722; February 7, 1996). Our letter provided the petitioner with an opportunity to amend or revise the petition based on our acceptance of the subspecific taxonomic designations of white-tailed ptarmigan.

On September 1, 2011, the petitioner responded by email and indicated that they intended to revise their petition based on the information that we provided in our July 20 letter. In a letter dated October 12, 2011, the petitioner revised their petition to request listing of the southern white-tailed ptarmigan and the Mt. Rainier white-tailed ptarmigan as threatened. We verified receipt of the revised petition by email on October 12, 2011. This finding addresses the revised petition.

There are no previous Federal actions involving the white-tailed ptarmigan or any of the subspecies.

The white-tailed ptarmigan is a small bird in the order Galliformes, family Phasianidae, and the subfamily Tetraoninae, which includes the grouse, or ground-feeding game birds (Hoffman 2006, p. 11; NatureServe 2011, p. 1). Likely descended from ancestral rock ptarmigan ( Lagopus muta ) isolated during the last ice age (Pleistocene Epoch, 2.6 million to 12,000 years before present), the white-tailed ptarmigan does not hybridize or compete for resources with either the rock or willow ptarmigan ( L. lagopus ) where ranges overlap in the northern part of the range (Short 1967, p. 17; Johnsgard 1973, p. 252; Gibbard and van Kolfschoten 2004, p. 441; Hoffman 2006, pp. 11, 36). The blue grouse ( Dendragapus obscurus) shares breeding habitats with the white-tailed ptarmigan, but hybridization or competition between the species has not been documented (Hoffman 2006, pp. 11, 36).

There are five recognized subspecies of white-tailed ptarmigan in North America (American Ornithologists' Union (AOU) 1957, p. 135). The southern white-tailed ptarmigan ( Lagopus leucura altipetens ) occupies the Rocky Mountains in Colorado, New Mexico, and historically in Wyoming. The Mt. Rainier white-tailed ptarmigan ( L. l. rainierensis ) occupies the Cascade Mountains of Washington. The Kenai white-tailed ptarmigan ( L. l. peninsularis ) extends from Canada into Alaska, and the Vancouver white-tailed ptarmigan ( L. l. saxatilis ) is restricted to Vancouver Island in Canada. The northern white-tailed ptarmigan ( L. l. leucurus ) extends from Canada into Montana (Aldrich 1963, p. 542).

Based on a lack of comparative work, Braun et al. (1993, p. 1) questioned the status and validity of the five subspecies of white-tailed ptarmigan. After examining museum specimens, Braun et al. suggested that the southern, Mt. Rainier, and Vancouver white-tailed ptarmigans are similar in size and color, whereas the northern and Kenai white-tailed ptarmigan are similar in size and color (1993, p. 1; Hoffman 2006, p. 11). Braun et al. observed a gradation in size and color from south to north, with larger, darker-colored birds in the south (1993, p. 1). However, Braun et al. never published their results, and, thus, their questioning of the subspecies designations has not been subjected to scientific peer review.

Multiple taxonomic authorities for birds recognize the validity of the five subspecies of white-tailed ptarmigan. The AOU recognized the five subspecies in their Checklist (1957, p. 135). Since 1957, the AOU has not conducted a review of its subspecific distinction and stopped listing subspecies as of the 6th edition in 1983. However, the AOU recommends the continued use of its 5th edition for taxonomy at the subspecific level (1997, p. xii). Based on their 1957 consideration of the taxon, the AOU still recognizes the southern and Mt. Rainier white-tailed ptarmigan as valid subspecies. Additionally, the Integrated Taxonomic Information System (ITIS) (2011) and Clements Checklist (2011, Version 6.6) also recognize the five subspecies of white-tailed ptarmigan. Hoffman (2006, p. 11) and Storch (2007, p. 39) also reference the five subspecies. No scientifically peer-reviewed studies exist that review or analyze the subspecific designations of white-tailed ptarmigan.

We recognize the lack of information, particularly morphological and genetic data, regarding the subspecific designations of white-tailed ptarmigan. We are aware of a proposed study by the U.S. Geological Survey that will use genetics to clarify the subspecific designations of white-tailed ptarmigan throughout its range. However, at the time of this evaluation, the best available scientific and commercial information suggests that the five subspecies identified by the AOU are valid. Therefore, we accept the taxonomic characterization of white-tailed ptarmigan as five subspecies occurring in North America.

The petitioner requests that we list two of the five recognized subspecies of white-tailed ptarmigan as threatened: The southern white-tailed ptarmigan and the Mt. Rainier white-tailed ptarmigan. Section 3(16) of the Act defines the term “species” as any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. After a review of the available taxonomic information, we determine that the southern white-tailed ptarmigan and Mt. Rainier white-tailed ptarmigan are subspecies and are listable entities under the Act. During our status review, we will further evaluate the taxonomic classifications of the southern white-tailed ptarmigan and the Mt. Rainier white-tailed ptarmigan.

The southern and Mt. Rainier white-tailed ptarmigans are physically similar (Braun et al. 1993, p. 1; Hoffman 2006, p. 11). Both subspecies of white-tailed ptarmigan are white in winter and brown in summer, the feathers changing color with the seasons to camouflage the birds (Braun et al. 1993, p. 1). Although the body feathers change color, the white-tailed ptarmigan is named for its white tail feathers, which never change color. These perpetually white tail feathers distinguish the species from other ptarmigan species (Short 1967, p. 17; Braun et al. 1993, p. 1; Hoffman 2006, p. 12). Males and females share similar body size, shape, and winter plumage, with adult body lengths up to 13.4 inches (34 centimeters) and body masses up to 0.9 pounds (425 grams) (Braun et al. 1993, p. 1; Hoffman 2006, p. 12). During the winter, both males and females are stark white and difficult to distinguish from each other and from the background of snow, except for black eyes, black toenails, and a black beak (Braun et al. 1993, p. 1; Hoffman 2006, p. 12). As the snow melts and the breeding season begins, males turn a lighter color of brown or gray than females, and have a dark band of feathers on the breast that resembles a necklace (Braun et al. 1993, p. 1). Both males and females have heavily feathered feet that act as snowshoes to support them as they walk across the snow (Braun et al. 1993, p. 1).

The southern and Mt. Rainier white-tailed ptarmigans share similar life histories. During the winter, the southern and Mt. Rainier white-tailed ptarmigans congregate in flocks and travel to the lowest elevations in their respective ranges, seeking areas with soft snow and willows ( Salix spp.) (Hoffman and Braun 1977, p. 110). During the winter, the birds feed on willows that protrude through the snow, and dig burrows, or roosts, in the soft snow that provide shelter from winter storms (Braun et al. 1993, p. 1; Hoffman 2006, pp. 17, 27). As alpine winters transition to spring, the southern and Mt. Rainier white-tailed ptarmigans migrate upwards in elevation for breeding and nesting to areas that are free of snow and provide access to willows by mid-May (Hoffman and Braun 1975, p. 486). After breeding and nesting, the southern and Mt. Rainier white-tailed ptarmigans spend the summer at the highest elevations of their respective ranges, where temperatures are coolest and rocky areas provide protection from predators and storms. Summer forage includes willows and other plants (May and Braun 1972, p. 1184; Braun et al. 1993, p. 1; Hoffman 2006, p. 27). The first snowstorm of the season forces the southern and Mt. Rainier white-tailed ptarmigans back down to the lower elevations of their respective ranges.

The southern and Mt. Rainier white-tailed ptarmigans spend their entire lifecycles in alpine ecosystems and are well adapted to survive in cold, arid, and open alpine environments (Johnson 1968, p. 1011; Hoffman 2006, p. 12; Storch 2007, p. 4). The color-changing plumage effectively camouflages the southern and Mt. Rainier white-tailed ptarmigans against white snow in winter and alpine vegetation and rocks in the summer (Ligon 1961, p. 87; Braun et al. 1993, p. 1; Martin and Forbes 2004, p. 1). The color-changing plumage also alters the reflective and absorptive properties of the feathers according to season to help the birds regulate body temperature (Hoffman 2006, p. 31). Metabolic rates are low, allowing the southern and Mt. Rainier white-tailed ptarmigans to gain weight during the winter (Hoffman 2006, p. 31). Low evaporative efficiencies prevent the loss of body heat (Laisiewski et al. 1966, p. 15; Johnson 1968, p. 1010; Hoffman 2006, p. 31). Additionally, snowshoe-like, feathered feet allow the southern and Mt. Rainier ptarmigans to save energy by walking on top of snow rather than flying, which is energetically expensive (Storch 2007, p. 4).

The southern and Mt. Rainier white-tailed ptarmigans inhabit alpine ecosystems at or above treeline, a transition zone defined as the upper elevational edge where wind, cold, and harsh weather prevent the growth of trees (Wardle 1974, p. 371). Treeline occurs at elevations around 11,500 feet (ft) (3,500 meters (m)) above sea level in New Mexico and southern Colorado, and 9,500 ft (2,900 m) in Wyoming (Hoffman 2006, p. 23). Treeline is as low as 6,600 ft (2,000 m) in the North Cascades of Washington (Clarke and Johnson 1990, p. 652; Hoffman 2006, p. 23). These alpine habitats at or above treeline are characterized by high winds, cold temperatures, short vegetation growing seasons, low atmospheric oxygen concentrations, and intense solar radiation (Martin and Weibe 2004, p. 177; Sandercock et al. 2005, p. 13). The extreme topography and harsh climatic conditions of the alpine slows the growth of plants (Hoffman 2006, p. 22). Slow growth rates make alpine ecosystems sensitive to disturbance, and vegetation may take many years to recover from disturbance (Willard and Marr 1970, p. 257). Within these open and arid alpine habitats, the southern and Mt. Rainier white-tailed ptarmigans prefer rocky areas, dwarfed trees, and vegetation near snowfields and streams (Choate 1963, p. 686; Frederick and Gutiérrez 1992, p. 898; Hoffman 2006, p. 23). The southern and Mt. Rainier white-tailed ptarmigans make seasonal migrations between elevations. Factors affecting their distribution include cool temperatures and the presence of exposed rocky areas, soft snow, and willows (Hoffman 2006, p. 23).

Specific population distribution, abundance, and demography information is lacking for the white-tailed ptarmigan or any of its subspecies, likely a reflection of the difficulty of surveying in often remote, high-elevation habitats. Although, at the species level, the white-tailed ptarmigan still occupies most of its historical range, population estimates are mostly unknown, other than in localized areas of study (Braun et al. 1993, p. 2; Hoffman 2006, p. 16). Storch (2007, p. 40) estimated a rangewide, spring population of more than 200,000 birds (for all subspecies of white-tailed ptarmigan). The North American Landbird Conservation Plan estimates the global population at 2,000,000 birds (again, for all subspecies combined) (Rich et al. 2004; Hoffman 2006, p. 16); however, Hoffman (2006, p. 16) argues that this estimate is likely extremely inflated and may be a reporting error. Breeding densities fluctuate between years and locations, ranging from 5 to 36 birds per square mile (sq mi) (2 to 14 birds per square kilometer (sq km)) (Hoffman 2006, p. 16). Most populations are probably stable and secure; however, localized populations may be at risk (Storch 2007, p. 152). NatureServe ranks the white-tailed ptarmigan as “secure” rangewide (2011, p. 1). The International Union for Conservation of Nature (IUCN) ranks the white-tailed ptarmigan as a species of “least concern” (IUCN 2011, p. 1). Within the U.S. Forest Service (USFS) Rocky Mountain Region, Hoffman states that populations of white-tailed ptarmigan are stable, and are in no immediate jeopardy of declining (2006, p. 40). However, these rankings are for the species as a whole, and do not evaluate the status of the individual subspecies of the white-tailed ptarmigan.

The white-tailed ptarmigan is endemic to alpine habitats in western North America and is the only species of ptarmigan whose range extends south of Canada (Aldrich 1963, p. 543; AOU 1998, p. 120; Hoffman 2006, p. 12). The southern white-tailed ptarmigan inhabits alpine areas in the Rocky Mountains of Colorado and New Mexico, but is likely not found in Wyoming (Hoffman 2006, p. 13). The Mt. Rainier white-tailed ptarmigan inhabits the northern Cascade Mountains of Washington, but there are no published accounts of the Mt. Rainier white-tailed ptarmigan in the Olympic Mountains in the northwestern part of the State (Hoffman 2006, p. 12). There are no verified records of white-tailed ptarmigan in Idaho, Oregon, California, or Utah (Gabrielson and Jewett 1940, p. 602; Aldrich 1963, pp. 541, 543; Braun et al. 1993, p. 1; Gilligan et al. 1994, p. 86; Hoffman 2006, p. 12). The historical absence of white-tailed ptarmigan from apparently suitable alpine habitats in Oregon, California, Utah, and the Olympic Mountains in Washington is due to long distances to the nearest occupied ranges (Hoffman 2006, p. 12). A lack of suitable alpine habitats explains the absence of ptarmigan in Idaho (Hoffman 2006, p. 12).

In Colorado, the southern white-tailed ptarmigan lives in all available alpine areas, except in the Spanish Peaks and Greenhorn Mountain in the southern part of the State (Braun et al. 1993, p. 1). Colorado supports the largest population of white-tailed ptarmigan in the United States outside of Alaska, with a statewide breeding population estimated at 34,800 birds (Hoffman 2006, pp. 15, 16). At Rocky Mountain National Park (RMNP) and Mt. Evans in Colorado, Braun et al. (1993, p. 1) reported breeding densities of 11.7 to 35.0 birds per sq mi (4.5 to 13.5 birds per sq km) and 5.2 to 26.7 birds per sq mi (2.0 to 10.3 birds per sq km), respectively (Hoffman 2006, p. 11).

In New Mexico, the southern white-tailed ptarmigan historically inhabited all the ridges and peaks above timberline within the Sangre de Cristo Mountains, but by the mid-1900s, it was found only on the northernmost peaks (Ligon 1961, p. 87; New Mexico Department of Game and Fish (NMDGF) 2008, p. 87). Following declines in the southernmost peaks, the NMDGF listed the white-tailed ptarmigan as endangered in 1975 (NMGFD 2008, p. 87). Recent observations and reports suggest that the reintroduction of white-tailed ptarmigan into the southern peaks of the Sangre de Cristo Mountains was successful, and that populations have persisted on the northernmost peaks (NMDGF 2008, p. 87). Coordinated surveys of all suitable habitats within the Sangre de Cristo Mountains are needed to document the current distribution and abundance of white-tailed ptarmigan in New Mexico (NMDGF 2008, p. 88).

The southern white-tailed ptarmigan appears to be absent from most alpine habitats in Wyoming, except possibly for the Snowy Range in the southern part of the State (Hoffman 2006, p. 15). Anecdotal reports suggest the southern white-tailed ptarmigan persists in the Snowy Range, but there have been no confirmed sightings since the early 1970s and the available habitats are limited (Hoffman 2006, p. 15). The Medicine Bow National Forest in southern Wyoming considers the white-tailed ptarmigan to be present historically but currently extirpated from the Snowy Range (USFS 2003, pp. 3, 154; Hoffman 2006, p. 15).

There is little information available regarding the distribution, abundance, or trends of the Mt. Rainier white-tailed ptarmigan in the Cascade Mountains of Washington (Smith et al. 1997, p. 140). No studies have been conducted in Washington other than general monitoring and surveys to determine presence or absence (Hoffman 2006, p. 8). There are no population estimates and no published accounts for the white-tailed ptarmigan in the Olympic Mountains of northwestern Washington (Hoffman 2006, p. 12). The Mt. Rainier white-tailed ptarmigan inhabits the North Cascades but not the South Cascades, primarily due to the lack of suitable alpine areas for dispersal and colonization in the south (Clark and Johnson 1990, p. 652).

Researchers successfully translocated white-tailed ptarmigan in the Sierra Nevada Mountains of California, the Uinta Mountains in Utah, Pike's Peak in Colorado, and the Pecos Wilderness in New Mexico (Braun et al. 1993, p. 1; Hoffman 2006, p. 13). Reports indicate that ptarmigans still exist in these translocation areas (Braun et al. 1978, p. 665; NMDGF 2006, p. 79; Hoffman 2006, p. 13). However, a translocation attempt in the Wallowa Mountains in northeastern Oregon was unsuccessful when the introduced population did not survive (Braun et al. 1993, p. 1; Marshall et al. 2003, p. 618; Hoffman 2006, p. 13).

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

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

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

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

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

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

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

The petitioner asserts that threats causing the present or threatened destruction, modification, or curtailment of habitat or range for the southern and Mt. Rainier white-tailed ptarmigans include global climate change, recreation, livestock grazing, and mining. These assertions are described in more detail below.

Information Provided in the Petition —The petitioner asserts that global climate change is the greatest threat to the survival of the southern and Mt. Rainier white-tailed ptarmigans in the United States. The petitioner claims that the white-tailed ptarmigan depends on open alpine habitats, willow as its main food source, soft snow in which to burrow, and cool temperatures to which it is uniquely adapted. The petitioner also asserts that these subspecies are physiologically underequipped to cope with rising temperatures associated with global climate change. Because these are physiological effects rather than effects to habitat, we discuss these assertions under Factor E.

The petitioner asserts that the loss of alpine habitats to global climate change threatens the southern and Mt. Rainier white-tailed ptarmigans, and provides several citations to support these claims. Foremost amongst these are the various publications of the Intergovernmental Panel on Climate Change (IPCC), specifically the four-volume IPCC Fourth Assessment Report: Climate Change 2007 and the Copenhagen Diagnosis, 2009: Updating the World on the Latest Climate Science (IPCC 2007, p. iii; 2009, p. 1). The Copenhagen Diagnosis summarizes research regarding the accumulation of carbon dioxide in the atmosphere and the resulting greenhouse effect that contributes to global warming. The IPCC also summarized changes in the amount, intensity, frequency, and type of precipitation associated with warming global temperatures (Trenberth et al. 2007, p. 262).

The petitioner alleges that several of the effects of climate change threaten the white-tailed ptarmigan. The petition presents research indicating that mountaintops and their alpine ecosystems are especially sensitive to changes in climate (Hougton et al. 1995 and 1996; Pepin 2000, p. 135; Beniston et al. 1997, p. 233; Kullman 2002, p. 68). The petitioner presents research indicating that the greater photosynthetic efficiency of alpine plants coupled with more carbon dioxide in the atmosphere suggests that overall changes in vegetation will be especially dramatic in alpine habitats (Korner and Diemer 1994, p. 58; Hoffman 2006, p. 46). Additionally, warming temperatures will shift treelines upwards in elevation, reducing available alpine habitats (Markham et al. 1993, p. 65; Root et al. 2003, p. 57; Hoffman 2006, pp. 3, 46). Warmer winter temperatures also suggest that a higher percentage of total precipitation will fall as rain rather than snow (Mote 2003, p. 1; Mote 2005, p. 39; Knowles et al. 2006, p. 4545; Karl et al. 2009, pp. 24, 135), which the petitioner argues may further reduce available alpine habitats for both subspecies.

After summarizing current research on global climate change, the petitioner provides research that forecasts the range of the white-tailed ptarmigan under several, predicted climate scenarios (Lawler et al. 2009, pp. 591-593). The petitioner predicts that the current northern range of the white-tailed ptarmigan will contract, and the species will be eliminated from the contiguous United States by year 2061, citing Lawler et al. (2009, appendix e) to support this claim.

Furthermore, the petitioner claims that climate change has already occurred and is predicted to continue within the range of the southern and Mt. Rainier white-tailed ptarmigans in the United States. The petitioner summarizes research indicating that temperatures in Colorado have increased significantly more than the average for the western United States (Ray et al. 2008, pp. 5, 10, 11, 21, 29). The references presented by the petitioner indicate that Colorado will experience few extreme cold months, more extreme warm months, with more consecutive warm winters (Ray et al. 2008, p. 29). The petitioner also presents evidence of ongoing climatic warming within the range of the Mt. Rainier white-tailed ptarmigan in the Cascade Mountains of Washington (Karl et al. 2009, pp. 135-136).

The petitioner presents research that global climate change, through increasing temperatures, also will affect the elevation of treeline, citing studies that document the advancement of treeline upslope (Wang et al. 2002b, p. 82; Grace et al. 2002, p. 540; Millar et al. 2004, p. 181; Stohlgren and Baron 2003, p. 1; Hoffman 2006, p. 45). The petitioner deduces that the upslope migration of trees and the expansion of forest will compress and fragment white-tailed ptarmigan habitats (Wang et al. 2002b, p. 82; Hoffman 2006, p. 45).

Finally, the petitioner presents research that changes will occur to the alpine plant communities bounded by the encroaching treeline because of global climate change (Hoffman 2006, p. 46; Cannone et al. 2007, p. 360). Although the exact changes to vegetation communities are uncertain, the petitioner reasons that the changes will be significant to the alpine habitats of the white-tailed ptarmigan. The petitioner also suggests that changed snowfall patterns will alter and reduce the availability of vegetation features important to the white-tailed ptarmigan, such as wet meadows below late-lying snowfields that are used by females to raise broods (Hoffman 2006, p. 46).

The petitioner concludes that global warming is the greatest threat to the survival of the white-tailed ptarmigan because of the loss and fragmentation of alpine habitats, the upslope advancement of treeline, and other changes to alpine plant communities.

Evaluation of Information in the Petition and Available in Service Files —Climatic and species models referenced by the petitioner suggest that the white-tailed ptarmigan may be completely extirpated from its current range within the United States with more than a 90 percent model agreement under low and high carbon dioxide emission scenarios (Lawler et al. 2009, appendix e). Therefore, the petitioner concludes that global warming modifies and curtails the range of the white-tailed ptarmigan in the United States, restricting the species to any remaining alpine habitats in Alaska and Canada, resulting in local extirpations, and threatening both subspecies. Although the complexities of modeling often confound the predicted species distributions and loss of habitats attributed to global climate change, the information presented by the petition and available in our files indicates that global climate change may curtail the range of the southern or Mt. Rainier white-tailed ptarmigan, potentially resulting in the extirpation of both subspecies from the contiguous United States.

The petitioner cites information indicating that climatic warming has occurred within the range of the southern and Mt. Rainier white-tailed ptarmigans. Over the past 30 years, temperatures in Colorado increased by 1.9 °F (1.1 °C), twice the average increase for the entire western United States for the same time period (Ray et al. 2008, pp. 10, 21). Ray et al. expect Colorado to warm by 3.96 °F (2.2 °C) by 2050, with winter temperatures increasing by 3.06 °F (1.7 °C) (Ray et al. 2008, pp. 5, 11, 29). Summer temperatures also are expected to increase in Colorado, with predicted increases of 5.04 °F (2.8 °C) (Ray et al. 2008, p. 29). Climate models for Washington State project increases in annual average temperatures of 5.22 °F (2.9 °C) by 2080 (Littell et al. 2009, pp. 33, 199). This report also illustrated an increase of 1.44 °F (0.8 °C) for Washington since 1920 (Littell et al. 2009, pp. 39, 199). In the Pacific Northwest, spring snowpack has declined by approximately 40 percent since the mid-20th century and is consistent with observed increases in global temperature (Mote 2003, p. 2). Payne et al. (2004, p. 243) predict further declines in the spring snowpack of the Cascade Mountains by as much as 40 percent by the year 2040. These studies indicate that temperatures are increasing, and may be a result of global climate change within the range of the southern and Mt. Rainier white-tailed ptarmigans.

Furthermore, we evaluated the claims and references provided by the petitioner regarding the response of treeline to warming temperatures and the potential impact on alpine environments. For certain areas of the RMNP in Colorado, krummholz (wind-trimmed, low-growing) trees are moving upslope at an average rate of 3.3 ft (1 m) per 27 years (Stohlgren and Baron 2003, p. 1). The researchers predicted that at certain sites, the krummholz could develop into forests in response to environmental factors, such as temperature and soil moisture. If unchecked, the researchers predicted that the developing forests would invade alpine ecosystems, thereby reducing the diversity of understory plants and habitat for alpine wildlife (Stohlgren and Baron 2003, p. 1). Based on predicted increases in temperature, Grace et al. (2002, p. 540) similarly predicted the advancement of treeline upwards and the subsequent invasion of trees into alpine meadows. Forest expansion has occurred to similar alpine habitats in the Arctic and Alaska (Millar et al. 2004, p. 181). Available studies also suggest that small increments of 1.8 to 3.6 °F (1 to 2 °C) of warming may result in changes to the dynamics of vegetation communities in the alpine (Korner and Diemer 1994, p. 58; Hoffman 2006, p. 46; Cannone et al. 2007, p. 360). The response of plants to increased levels of atmospheric carbon dioxide and shifts in precipitation patterns may impact the distribution of willow and other important ptarmigan food plants (Hoffman 2006, p. 46).

Although it is unclear exactly how alpine vegetation communities will respond to a warming climate, the cited references indicate that the upslope migration of treeline, the expansion of subalpine forests, and changes to alpine plant communities may occur. Cumulatively, these changes may reduce the alpine habitats available to the southern and Mt. Rainier white-tailed ptarmigans; however, the magnitude of this loss is undeterminable based on our review of the information in the petition and in our files.

Based on the results of the empirical studies cited by the petitioner and information available in our files, along with predictions of increasing air temperatures, decreasing snow packs, and predicted changes to white-tailed ptarmigan habitats and distribution of food plants, we find that the ranges of the southern white-tailed ptarmigan and the Mt. Rainier white-tailed ptarmigans and the alpine habitats within these ranges may decrease as a result of global climate change. Therefore, we find that the petition and information in our files present substantial information to indicate that the predicted changes in habitat due to the effects of climate change may be a threat to the southern white-tailed ptarmigan and the Mt. Rainier white-tailed ptarmigan. We discuss potential physiological and behavioral effects of a warming climate under Factor E, below.

Information Provided in the Petition —The petitioner asserts that recreational activities (specifically hiking, off-road vehicle (ORV) use, and skiing) destroy alpine habitats and directly disturb the southern and Mt. Rainier white-tailed ptarmigans. The petitioner provides citations indicating that various recreational activities occur within alpine habitats and that, in Colorado, these activities have increased in popularity over time (Hesse 2000, p. 68; Ebersole et al. 2002, p. 101). The petitioner asserts that these activities can adversely affect habitats of the southern and Mt. Rainier white-tailed ptarmigans via: (1) Hikers trampling alpine vegetation; (2) the erosion, slumping, soil compaction, snow compaction, and vegetation damage from ORV use, including snowmobiles; and (3) the compaction of snow and loss of willows by skiers and snowmaking machines at ski areas. The petitioner provides citations to several sources that describe the impacts of trampling and ORV use on slow-growing alpine vegetation (Willard and Marr 1971, p. 257; Lodico 1973, entire; Ebersole et al. 2002, p. 101; Hoffman 2006, p. 43). The petitioner also provides one reference that speaks generally to the historical impacts of recreation on alpine habitats (Brown et al. 1978b, pp. 23-44). The petitioner cites 27 biological evaluations (BEs) prepared by the USFS in the Rocky Mountain Region that concluded that recreational projects may affect individual white-tailed ptarmigan, but would not cause a trend towards Federal listing, a standard for BEs described by the USFS's operational manual regarding sensitive species (USFS 2011, p. 3, 5).

The petitioner suggests that hikers may wander off trails, trample alpine vegetation, and create new trails, with lasting damage to vegetation occurring (Hoffman 2006, p. 43). The petitioner also asserts that snowmobiles are especially dangerous to the white-tailed ptarmigan because they may occasionally collide with and kill the birds. Additionally, the petitioner stresses that noise and activity associated with snowmobiles may disturb the birds and cause them to leave their optimal feeding and roosting sites, exposing the birds to predation (Hoffman 2006, p. 44).

The petitioner cites Braun et al. (1976, p. 9) to report that white-tailed ptarmigan exist within ski areas, but to a lesser extent, because of development. However, the petitioner reasons that skiers repeatedly displace white-tailed ptarmigans and force them to unnecessarily expend extra energy. Additionally, the petitioner suggests that skiers and grooming machines may damage willows while snowmaking operations may cover any remaining willows, rendering them inaccessible to the white-tailed ptarmigan. The petitioner argues that skiers and grooming machines also may compact soft snow and make it unsuitable for roosting (Hoffman 2006, p. 44). Finally, the petitioner asserts that the development of ski areas results in habitat loss and may increase predation, which we discuss below under Factor C.

Evaluation of Information in the Petition and Available in Service Files —Recreational activities occur within the alpine habitats of the southern and Mt. Rainier white-tailed ptarmigans. However, the probability of humans interacting with either subspecies or their habitats remains relatively low, because the severe environment and low productivity of the alpine zone have deterred human use and habitation (Hoffman 2006, p. 41). When recreation occurs in alpine habitats, the effects of trampling, ORVs, skiing, and other forms of recreation on slow-growing alpine vegetation are well documented (Willard and Marr 1971, p. 257; Billings 1973, p. 703; Lodico 1973, entire; Ebersole et al. 2002, p. 101). However, we are unaware of any information to indicate that recreational activities may be a threat to the habitats or the range of the southern or Mt. Rainier white-tailed ptarmigan.

Although hikers may trample vegetation, ORVs may erode soils, and skiers or grooming machines may compact snow or cover willows, the references cited by the petitioner and available in our files describe only anecdotal and isolated impacts from recreation to the habitats of the southern and Mt. Rainier white-tailed ptarmigans. While recreational use of the alpine habitat has increased over time in Colorado, the references cited by the petitioner and available in our files do not indicate recreation is occurring at levels that impact the habitats or range of the southern and Mt. Rainier white-tailed ptarmigans. We have no specific information, nor did the petitioner provide any information, regarding recreational use within the range of the Mt. Rainier white-tailed ptarmigan in Washington. Furthermore, the cited references provide no information, and we found no information, that winter recreational activities compact soft snow to an extent that impedes the construction of snow roosts or limits the availability of willows such that the southern or Mt. Rainier white-tailed ptarmigan is unable to seek shelter or feed during the winter. Similarly, the cited references provide no information to suggest that the development of ski areas has destroyed, modified, or curtailed the habitats or range of either of the petitioned subspecies. We have no information and the petitioner provided no information regarding ski area development in Washington and potential impacts to the Mt. Rainier white-tailed ptarmigan.

Additionally, while recreationists in alpine areas may interact with and occasionally disturb ptarmigan, the cited references and information in our files provide only anecdotal evidence of this interaction or disturbance. The references do not suggest that the southern and Mt. Rainier white-tailed ptarmigans abandon habitats after being disturbed or that ORVs kill birds in any scope or scale that result in population-level impacts. We found no evidence that ptarmigans abandon sites frequented by motorized vehicles. However, ptarmigans may temporarily move away if disturbed and are occasionally killed by collisions (Hoffman 2006, p. 44). The petitioner cites USFS BEs that concluded that recreation projects may affect the white-tailed ptarmigan in the Rocky Mountain Region, although these BEs concluded that the activities would not contribute to loss of viability or lead to a trend towards Federal listing. There is also no evidence that these impacts actually occurred or represent a threat to the southern white-tailed ptarmigan. Therefore, we find that the petition and information in our files do not present substantial scientific or commercial information to indicate that habitat impacts due to recreational activities may be a threat to the southern or Mt. Rainier white-tailed ptarmigan.

Information Provided in the Petition —The petitioner asserts that livestock grazing, as well as grazing by overabundant native ungulates, threatens the southern and Mt. Rainier white-tailed ptarmigans by impacting habitats and reducing the availability of food. The petitioner asserts that livestock grazing is the dominant land use within the range of the southern and Mt. Rainier white-tailed ptarmigans in the United States and provides references demonstrating that grazing can affect natural communities by removing vegetation, adjusting the structure of plant communities, and trampling or compacting soils (Fleischner 1994, p. 629; Krueper et al. 2003, p. 608; Hoffman 2006, p. 42). The petitioner also asserts that livestock grazing changes the availability of water, alters the diversity of plant species, and disrupts nutrient cycling and community succession; the petitioner presents references in support of those assertions (Fleischner 1994, pp. 631-634; Fleischner 2010, p. 242). The petitioner provides references to indicate that cattle grazing may impact the breeding success of nesting birds in riparian and forested ecosystems below treeline (Ammon and Stacey 1997, pp. 7, 11, 12; Walsberg 2005, p. 715).

However, the petitioner recognizes that cattle are poorly adapted to the alpine habitats of the white-tailed ptarmigan and are not a major influence on alpine areas (Alexander and Jensen 1959, pp. 680-689; Thilenius 1975, pp. 15, 28). Where cattle cannot graze, the petitioner asserts that grazing by sheep has deleterious effects on alpine ecosystems, including the creation of trails, trampling of vegetation, and overgrazing, resulting in considerable damage to alpine habitats (Thilenius 1975, p. 28; Hoffman 2006, p. 42). Extended and concentrated grazing periods, coupled with the long recovery times of alpine ecosystems, have had a significant impact on the structure and function of many alpine areas (Thilenius 1975, p. 15; Hoffman 2006, p. 42). Additionally, sheep feed on many of the same plants as the white-tailed ptarmigan (Hoffman 2006, p. 42). As a result, the petitioner concludes that sheep compete with the white-tailed ptarmigan for food where they overlap.

The petitioner cites 13 BEs prepared by the USFS in the Rocky Mountain Region that determined that grazing sheep may adversely affect the white-tailed ptarmigan, but would not lead to a trend towards Federal listing. Potential effects analyzed in the BEs included sheep crushing birds or eggs, disturbance or mortality caused by herds or working dogs, and the loss of habitat from overgrazing by sheep. The petitioner also reports that the southern white-tailed ptarmigan also may alter its movement behaviors in heavily grazed areas of the Rocky Mountains (Hoffman 2006, p. 26).

Native ungulates also graze in alpine areas, and the petitioner asserts that, like sheep, they too may impact the habitats of the southern and Mt. Rainier white-tailed ptarmigans. The petitioner indicates that populations of elk ( Cervus elaphus ) have grown dramatically in the contiguous United States as natural predators disappeared and States enforced game laws (Hoffman 2006, pp. 36, 42). Consequently, the petitioner states that elk graze in alpine ranges more frequently during all seasons of the year (Hoffman 2006, p. 42). The petitioner cites one study that determined that willow habitats found below treeline that are overgrazed by elk typically convert into shrub-steppe habitats (Anderson 2007, pp. 401, 406). Although this study focused on low-elevation, riparian habitats outside of the range of either white-tailed ptarmigan subspecies, the petitioner predicts that if alpine willow habitats above treeline are overgrazed by elk, they too will turn into unfavorable shrub-steppe habitats.

The petitioner concludes that grazing by livestock and native ungulates impacts white-tailed ptarmigan habitats, reduces the availability of willows, and forces changes in migration patterns.

Evaluation of Information in the Petition and Available in Service Files —Although the effects of livestock grazing on natural ecosystems are well documented, the cited references and information in our files do not address the impacts of cattle grazing on the southern and Mt. Rainier white-tailed ptarmigans or their habitats. Cattle are not generally a major influence in alpine environments, and while grazing allotments for cattle may include alpine areas in the Rocky Mountains, cattle are poorly adapted to high-elevation, alpine environments and, therefore, are not likely to persist or overgraze in white-tailed ptarmigan habitats. Where cattle grazing occurs in the alpine, the references cited by the petitioner provide no evidence to conclude that cattle have negatively impacted either subspecies of white-tailed ptarmigan or their habitats. The petitioner provided no information and we have no information in our files regarding cattle grazing in Washington within the range of the Mt. Rainier white-tailed ptarmigan.

Sheep are more tolerant of alpine environments than cattle and can graze in white-tailed ptarmigan habitats. Although the petitioner cites USFS BEs identifying potential impacts to white-tailed ptarmigan and their habitats in the Rocky Mountains from sheep grazing, these BEs determined that grazing would not contribute to a loss of viability or lead to a trend towards Federal listing. The petitioner provided no evidence and we have no information to indicate that the impacts evaluated by the BEs actually occurred or that they may threaten the subspecies. The petitioner provided no information and we have no information in our files regarding sheep grazing and the Mt. Rainier white-tailed ptarmigan in Washington. While sheep may feed on the same willows and other alpine plants as the white-tailed ptarmigan, we found no information to support that competition for food between sheep and ptarmigans negatively impacts either subspecies. Additionally, although the petitioner cites anecdotal observations that ptarmigans may move away from heavily grazed areas, the cited references and information in our files do not provide evidence that this movement or disruption may be a threat to either subspecies.

Finally, we found no evidence to conclude that elk overgraze on alpine vegetation at any time of the year such that either subspecies may show a negative response. The petitioner asserts that elk use of the alpine has increased during all seasons of the year, but elk generally move down to lower elevations during the winter (Fitzgerald et al. 1994, p. 385). At these lower wintering elevations, elk are more removed from ptarmigans and their alpine habitats when the birds are congregating in their snow-covered wintering areas and feeding on willow. Similarly, we have no information in our files nor does the petitioner provide information to indicate that alpine willow habitats that are overgrazed by elk change into shrub-steppe habitats that may be unfavorable to the southern or Mt. Rainier white-tailed ptarmigan, or grazed to the extent to which either population of the subspecies may be negatively impacted. Finally, the petitioner provided no information and we have no information in our files regarding elk grazing in the alpine habitats of the Mt. Rainier white-tailed ptarmigan or any potential impacts to the subspecies. Therefore, we find that the petition and information in our files do not present substantial scientific or commercial information to indicate that habitat impacts attributed to grazing may be a threat to the southern or Mt. Rainier white-tailed ptarmigan.

Information Provided in the Petition —The petitioner asserts that mining has destroyed alpine habitats and that pollutants from abandoned mines threaten the southern and Mt. Rainier white-tailed ptarmigans. Compared to recreation and grazing, the petitioner considers mining the most destructive human activity in alpine habitats and provides evidence where mining historically degraded alpine ecosystems, damaged soils, destroyed vegetation, and polluted watersheds in the Rocky Mountains (Brown et al. 1978, p. 23; Chambers 1997, p. 161; Macyk 2000, p. 537; Clements et al. 2000, p. 626). The petitioner also presents research showing that white-tailed ptarmigans are susceptible to toxic pollutants leeching from abandoned mines that have not been properly reclaimed (Larison et al. 2000, p. 181). In southwestern Colorado, the southern white-tailed ptarmigan exhibited calcium deficiencies, skewed sex ratios, and other physiological effects after eating willows contaminated with cadmium, a toxic heavy metal found at abandoned mines (Larison et al. 2000, p. 181). The petitioner also cites two BEs prepared by the USFS in Colorado that determined that vehicles operated at mines could drive over nests, crush eggs, and disturb the summer foraging habitats of the white-tailed ptarmigan.

Evaluation of Information in the Petition and Available in Service Files —In the Rocky Mountains, historic and current mining operations occurred within the range of the southern white-tailed ptarmigan and may have reduced available habitats. However, the available information cited by the petitioner and available in our files does not indicate that these mining operations significantly reduced or fragmented habitats to an extent that the southern white-tailed ptarmigan has shown a negative population response. Although the petitioner cites USFS BEs that determined impacts to the white-tailed ptarmigan would occur at mines in the Rocky Mountain Region, these evaluations also determined that the mining operations would not contribute to a loss of viability or lead to a trend towards Federal listing. We have no information to indicate that these impacts actually occurred or that the southern white-tailed ptarmigan exhibited a negative population response as a result. Additionally, cadmium poisoning in white-tailed ptarmigan has only been observed in improperly reclaimed mines within the ore-belt of southwestern Colorado; there is no evidence of cadmium poisoning elsewhere in the Rocky Mountains or Washington (Hoffman 2006, p. 47). While ptarmigan in the ore-belt of southwestern Colorado may be poisoned after eating contaminated willows, we found no information to conclude that this occurs at a level that impacts the subspecies. Finally, the petitioner provided no information and we have no information regarding mining or potential effects within the range of the Mt. Rainier white-tailed ptarmigan in Washington. Therefore, we find that the petition and information in our files do not present substantial scientific or commercial information to indicate that habitat impacts due to mining activities may be a threat to the southern or Mt. Rainier white-tailed ptarmigan.

Based on the information provided in the petition, as well as other information readily available in our files, we find that the petition presents substantial scientific or commercial information indicating that the southern white-tailed ptarmigan and Mt. Rainier white-tailed ptarmigan may warrant listing due to the present or threatened destruction, modification, or curtailment of the species' habitat or range as a result of the habitat changes brought about by the effects of global climate change. We find that the petition does not present substantial scientific or commercial information indicating that the southern or Mt. Rainier white-tailed ptarmigan may warrant listing due to the present or threatened destruction, modification, or curtailment of the species' habitat or range from recreation, livestock grazing, or mining. However, we will more fully evaluate these activities in our status review.

The petitioner claims that hunting threatens the white-tailed ptarmigan and provides general background information on ptarmigan hunting regulations in the United States. Hunting of white-tailed ptarmigan is legal in Alaska, Colorado, Utah, and California (Hoffman 2006, p. 47). The white-tailed ptarmigan is not hunted in New Mexico, Montana, Wyoming, or Washington. The petitioner reports that the current threat of hunting to white-tailed ptarmigan populations is localized, and, therefore, populations may be susceptible to overharvest based on a variety of factors. The petitioner indicates that white-tailed ptarmigans are unwary, congregate in large flocks, and return to habitats even after they are repeatedly disturbed. The petitioner asserts that this behavior may make the birds easy to hunt. The petitioner also explains that approximately 95 percent of the occupied range of the southern white-tailed ptarmigan in Colorado is publicly owned and open to hunting (Hoffman 2006, p. 9). Much of this occupied range is close to metropolitan areas and accessible to hunters. The petitioner also reports that declining populations of other grouse species are causing a renewed interest in the white-tailed ptarmigan among hunters. Additionally, where brood habitat is limited and occurs along rocky areas, female white-tailed ptarmigans may be easier to detect than males, easier to hunt, and more susceptible to hunting mortality (Sandercock et al. 2005, p. 22; Hoffman 2006, p. 47).

The petitioner cites a dissertation that estimated a 15 to 27 percent higher mortality rate in hunted white-tailed ptarmigan populations, which suggested that hunting results in additive mortality (Hoffman 2006, p. 47). However, the petitioner argues that population declines of white-tailed ptarmigan associated with hunting may not be readily apparent. The petitioner cites a study on willow grouse ( Lagopus lagopus lagopus ) in Sweden and a study on ruffed grouse ( Bonasa umbellus ) in Wisconsin to explain that immigration from non-hunted or lightly hunted populations may sustain breeding densities of white-tailed ptarmigan in heavily hunted areas (Small et al. 1991, p. 512; Smith and Willebrand 1999, p. 722; Hoffman 2006, p. 47). The petitioner reasons that because breeding densities for other species of grouse remain stable with immigration, the effects of hunting on white-tailed ptarmigan populations may be difficult to detect.

Wyoming classifies the southern white-tailed ptarmigan as a game bird, but does not permit hunting due to its restricted distribution and small population size in the State (Braun et al. 1993, p. 1; Hoffman 2006, p. 10). New Mexico also does not permit hunting of the southern white-tailed ptarmigan. Similarly, Washington does not permit hunting of the Mt. Rainier white-tailed ptarmigan. In the States where hunting is not permitted, the petitioner provided no information and we have no information in our files to suggest that illegal hunting may be a threat to either the southern or Mt. Rainier white-tailed ptarmigan.

Colorado permits the legal hunting of the southern white-tailed ptarmigan. In Colorado, daily bag and possession limits are 3 and 6 birds, respectively, and the hunting season is 23 days long, commencing in mid-September when young ptarmigans have reached adulthood and can survive independently from the brood hen (Hoffman 2006, p. 10). The hunting season in Colorado ends before ptarmigans start congregating on wintering areas, when they are most susceptible to overharvest (Hoffman 2006, p. 10). The short season and small bag limits of the hunting season in Colorado are designed to prevent overharvesting (Hoffman 2006, p. 10). While ptarmigans may be unwary of humans, relatively easy to hunt, and found primarily on public lands, there is no information to suggest that illegal harvest by hunters may be a threat to the southern white-tailed ptarmigan in Colorado. Although immigration may make it difficult to detect the effects of hunting on other species of grouse, we have no information to suggest that hunting has resulted in additive mortality to the southern or Mt. Rainier white-tailed ptarmigan such that populations are unable to sustain viable breeding densities. Similarly, we have no information to suggest that hunting the species is currently more popular such that overharvesting may be a threat to the southern white-tailed ptarmigan. Therefore, we find that the petition and information in our files do not present substantial scientific or commercial information to indicate that hunting may be a threat to the southern or Mt. Rainier white-tailed ptarmigan. However, we will more fully evaluate hunting in our status review.

The petitioner asserts that the development of ski areas increases the presence of generalist predators that threaten the white-tailed ptarmigan in alpine habitats. As support, the petitioner cites a study on rock ptarmigan in Scotland that reported an increase in generalist predators, such as carrion crows ( Corvus corone ), feeding on birds and eggs following the development of a ski area (Watson and Moss 2004, p. 267). In this study, the rock ptarmigans that nested closest to developed areas lost more nests to predation by crows or gulls and reared abnormally few broods compared to ptarmigans that nested farther away from development (Watson and Moss 2004, p. 267; Hoffman 2006, p. 44). The petitioner argues that this study on the rock ptarmigan in Scotland is applicable to white-tailed ptarmigan populations in the United States. Although the petitioner states that specific studies regarding post-development increases in generalist predators and the potential effects on the white-tailed ptarmigan are lacking, the petitioner stresses that any development that increases generalist predators can impact the number of juvenile white-tailed ptarmigans in the population (Storch 2007, pp. 12, 40).

In the presence of suitable habitats, predation is generally not a limiting factor for ptarmigans, as the birds have evolved closely with their predators and developed strategies to compensate for high predation rates (Hoffman 2006, p. 34). Although ski resorts or other human developments may attract predators, there is no information from the petition or our files to indicate that predation in any part of the range has exceeded any population-level compensation strategies to negatively impact southern and Mt. Rainier white-tailed ptarmigans. Although the petitioner provides evidence of predation of rock ptarmigan at ski resorts in Scotland, we have no information to conclude that there are more predators at ski resorts in the United States, that predation on white-tailed ptarmigan populations has increased, or that predation may be a threat to either subspecies. The petitioner provides no specific information regarding ski areas and the Mt. Rainier white-tailed ptarmigan in Washington. Ski areas and other forms of human development, such as roads, may enable predators to access alpine habitats, but there is no information in the petition or our files to indicate that predation within any part of the range of the southern or Mt. Rainier white-tailed ptarmigan may be a threat, regardless of the proximity of occupied habitats to development.

The petitioner provides no information regarding any disease or pathogen that threatens the southern or Mt. Rainier white-tailed ptarmigans, and we found no evidence in our files that the subspecies may be at risk from any specific disease or pathogen. Therefore, we find that the petition and information in our files do not present substantial scientific or commercial information to indicate that disease or predation may be threats to the southern or Mt. Rainier white-tailed ptarmigans. However, we will more fully evaluate potential threats associated with disease and predation in our status review.

The petitioner claims that existing regulatory mechanisms are inadequate to prevent the decline of the white-tailed ptarmigan because global and national regulations are failing to reduce carbon emissions to levels that will slow global surface warming. They also assert that no legal mechanisms currently exist to regulate greenhouse gases on a national level in the United States. The petitioner argues that stabilizing current climatic conditions through reductions in greenhouse gas emissions is necessary to preserve the remaining alpine habitats of the white-tailed ptarmigan, as discussed under Factor A, above. The petitioner also argues that other regulatory mechanisms inadequately protect the white-tailed ptarmigan from threats other than climate change. The petitioner argues that changes in climate caused by human activities must be mitigated through stronger regulatory mechanisms because the existing mechanisms are inadequate.

The petitioner stresses that legislative action is necessary to save the white-tailed ptarmigan because scientists warn that we are approaching emissions levels that would cause dangerous climate change (Hansen et al. 2008, pp. 217-218). The petitioner stresses that with current atmospheric carbon dioxide levels at approximately 390 parts per million (ppm), and worldwide emissions continuing to increase by more than 2 ppm each year, immediate reductions in greenhouse gas emissions are necessary to prevent the loss of species and ecosystems to climate change.

The petitioner reports that the United States produces approximately 20 percent of worldwide carbon dioxide emissions each year (U.S. Energy Information Administration 2010), yet lacks adequate regulations to reduce the greenhouse gas emissions. The petitioner cites the Service's 2008 listing of the polar bear ( Ursus maritimus ), which recognized that there are no regulatory mechanisms that address the anthropogenic causes of climate change (e.g., greenhouse gas emissions) and the impact of warming temperatures and altered precipitation patterns on diminishing sea ice (73 FR 28288, May 15, 2008). The petition also states that existing domestic laws which grant authority to require greenhouse gas emissions reductions (e.g., Clean Air Act, Clean Water Act, Endangered Species Act, Energy Policy and Conservation Act) are not fully implemented. As an example, the petitioner references the U.S. Environmental Protection Agency's (EPA's) implementation of the Clean Air Act (42 U.S.C. 7401 et seq. ) to lower emissions by requiring improved fuel economy and higher emission standards for light-duty vehicles (75 FR 25324, May 7, 2010), but states that the majority of other Clean Air Act programs are not fully implemented to address greenhouse gas emissions (75 FR 17004, April 2, 2010). The petitioner argues that full implementation of these environmental laws would provide an effective and comprehensive greenhouse gas reduction strategy, but does not explain how the majority of these laws could be applied to control emissions.

The petitioner also indicates that the international agreements that address greenhouse gas emissions (e.g., United Nations Framework Convention on Climate Change, Kyoto Protocol) rely on non-binding and ineffective controls (Pew 2010, p. 1; Rogelj et al. 2010, p. 464). Therefore, the petitioner considers international regulatory mechanisms inadequate to protect the white-tailed ptarmigan from climate change.

Furthermore, the petitioner contends that other State and Federal regulatory mechanisms in the United States do not adequately protect the white-tailed ptarmigan from threats other than climate change. The petitioner asserts that the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) does not prohibit Federal agencies from choosing project alternatives that may negatively affect individuals or populations of white-tailed ptarmigans. The USFS recognizes the white-tailed ptarmigan as a sensitive species in its Rocky Mountain (Region 2) and Southwest Region (Region 3), but the petitioner contends that because the NEPA does not require avoidance of harm, the sensitive species designation provides little regulatory protection. The petitioner cites 41 BEs prepared by the USFS in the Rocky Mountain Region within the last 10 years that evaluated activities that could harm ptarmigan. The petitioner also explains that the National Forest Management Act (16 U.S.C. 1600 et seq. ) does not prohibit the USFS from carrying out actions that harm the white-tailed ptarmigan or its habitats.

Finally, the petitioner explains that the State of New Mexico added the white-tailed ptarmigan to its list of endangered species in 1975, and as a species of greatest conservation need in 2006. The petitioner argues that these designations in New Mexico confer no regulatory authority to protect white-tailed ptarmigan habitats. The petitioner provides no information or analysis regarding State regulations in either Colorado or Washington.

The petitioner concludes that, given the threat of climate change as discussed under Factor A, it is important to protect all existing alpine habitats in order to provide the species with the best possible chance to find suitable habitats in a warmer world. The petitioner argues that none of the existing regulatory mechanisms provide substantial protection for the white-tailed ptarmigan from other threats discussed under Factor A, such as livestock grazing, recreation, or mining.

According to the IPCC, anthropogenic emissions of long-lived greenhouse gases, especially carbon dioxide, are currently contributing the largest positive radiative forcings (leading to warming of climate) of any climate factor (Forster et al. 2007, pp. 136-137). After providing scientific references in support of global climatic warming as discussed under Factor A, the petitioner refers to the limited application of the Clean Air Act by the EPA to effectively regulate greenhouse gas emissions. Information in our files indicates that on December 15, 2009, the EPA announced that current and projected concentration of six greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations (74 FR 66496). In effect, the EPA concluded that the greenhouse gases linked to climate change are pollutants whose emissions can be subject to the Clean Air Act (42 U.S.C. 7401 et seq. ).

The EPA proposed specific regulations to limit greenhouse gas emissions under the Clean Air Act in 2010. However, specific regulations to limit greenhouse gas emissions were only proposed in 2010, and have not yet been finalized. Therefore, the Clean Air Act cannot, at present, be considered an existing regulatory mechanism that addresses greenhouse gas emissions. Nor do we have any basis to conclude that implementation of the Clean Air Act in the foreseeable future (40 years, based on global climate projections) may substantially reduce the current rate of global climate change through regulation of greenhouse gas emissions. Thus, we conclude that the Clean Air Act is not designed to specifically address the primary threats to the southern and Mt. Rainier white-tailed ptarmigans, including the loss of alpine habitats and other environmental changes associated with climate change, as discussed under Factor A.

Given that the petition, as revised, is specifically for the southern and Mt. Rainier white-tailed ptarmigan, we do not consider the adequacy of existing international regulations, treaties, or agreements that do not directly apply to the United States, and to the subspecies, when evaluating possible threats under Factor D. There is no information in the petition or in our files regarding applicable international regulations or treaties that might alleviate threats to the southern and Mt. Rainier white-tailed ptarmigans in the United States. Also, concerning the petitioner's assertion that NEPA does not provide adequate regulatory protection, NEPA is a disclosure law which does not require subsequent minimization or mitigation measures by the Federal agency involved. Although Federal agencies may include conservation measures for sensitive species as a result of the NEPA process, any such measures are voluntary in nature and not required by the statute. Thus it is outside the scope of NEPA to provide regulatory protections to species. As with the Clean Air Act, NEPA is not designed to specifically address the specific threats to the southern and Mt. Rainier white-tailed ptarmigans.

In the Rocky Mountains, approximately 95 percent of occupied ptarmigan habitats are on public lands, 85 percent of which are administered by the USFS (Hoffman 2006, p. 9). The petitioner did not provide information, and we found no information in our files, regarding the land ownership and corresponding management regulations for alpine habitats in Washington. Because the ptarmigan is a USFS sensitive species in the Rocky Mountains, the USFS actively manages it to avoid trends toward Federal listing and to maintain population viability across its range in Regions 2 and 3. The petitioner argues that according to BEs, 41 projects administered by the USFS within the last 10 years in the Rocky Mountain Region harmed the white-tailed ptarmigan. The petitioner previously indicated that 8 of these projects were associated with sheep grazing, 2 were associated with mining, and 27 were associated with recreation. However, the USFS determined that these activities would not contribute to a loss of viability or lead to a trend towards Federal listing, and the petitioner does not provide evidence these projects actually occurred or contributed to a trend towards listing contrary to the USFS' determination. The petitioner also does not provide evidence that State regulations in New Mexico are ineffective and may threaten the southern white-tailed ptarmigan. The petitioner provides no information, and we have no information in our files, regarding regulations or laws specific to the Mt. Rainier white-tailed ptarmigan in Washington.

We are not aware of any existing regulatory mechanisms that are designed to address the changes described in Factor A in the southern and Mt. Rainier white-tailed ptarmigan habitats that are occurring or likely to occur in the future.

As discussed above, there are no applicable international regulations or treaties that might alleviate threats to the southern and Mt. Rainier white-tailed ptarmigans in the United States. Similarly, it is beyond the scope of NEPA to provide specific protections to the subspecies.

Approximately 95 percent of the occupied range of the southern white-tailed ptarmigan in the Rocky Mountains occurs on public lands, at least 85 percent of which is federally managed (Hoffman 2006, p. 9). Public lands are subject to several Federal laws and regulations that protect habitats from direct destruction or modification. There is no information in the petition nor readily available in our files regarding laws or regulations in the State of Washington and the effectiveness of regulations in other States, and it is uncertain whether Federal or State laws and regulations adequately address the potential threats to habitats of the white-tailed ptarmigan associated with climate change as discussed under Factor A. Existing regulatory mechanisms are not designed to, nor do they, ameliorate the threats to the southern or Mt. Rainier white-tailed ptarmigan. Therefore, we find that the petition and information in our files do not present substantial scientific or commercial information to indicate that the inadequacy of existing regulatory mechanisms may be a threat to the southern or Mt. Rainier white-tailed ptarmigans. We will more fully evaluate existing regulatory mechanisms in our status review.

In their petition, the petitioner presented information regarding potential physiological effects of a warming climate on the southern and Mt. Rainier white-tailed ptarmigans under Factor A. Because these are physiological effects, we discuss these assertions below. The petitioner also claims that population isolation and limited dispersal distances threaten the white-tailed ptarmigan.

Information Provided in the Petition —The petitioner cites a study conducted in the RMNP, Colorado, as evidence that warming temperatures have had a negative effect on the population dynamics of white-tailed ptarmigan (Wang et al. 2002, pp. 81-86). The petitioner also explains that increased temperatures may not only decrease population growth rates of the white-tailed ptarmigan, but also may directly impact individual ptarmigans because of their inability to cope with the stress caused by warming temperatures. The petitioner explains that the southern and Mt. Rainier white-tailed ptarmigans are well adapted to their seasonally cold alpine habitats, but are not physiologically adapted to high ambient air temperatures (Hoffman 2006, p. 24). To support this claim, the petitioner cites several studies that determined that the white-tailed ptarmigan has low mean body temperatures, a wide temperature-tolerance zone, excellent insulation to trap body heat, and low evaporative efficiencies (Veghte and Herreid 1965, p. 267; Lasiewski et al. 1966, p. 445; Johnson 1968, p. 1003; Hoffman 2006, pp. 24, 45). The petitioner argues that southern and Mt. Rainier white-tailed ptarmigans are susceptible to heat stress and underequipped to adapt to the warming temperatures associated with climate change.

The petitioner explains that white-tailed ptarmigans modify their behaviors to avoid overheating, but this may not be sufficient to compensate for a warming climate. While nesting, female white-tailed ptarmigans take incubation breaks to forage, but they may take fewer breaks if temperatures are high. With less food, as a result of fewer foraging breaks, the health of nesting females may deteriorate, and they may abandon the nest (Hoffman 2006, p. 46). Additionally, the petitioner suggests that warming temperatures may force females to nest in shaded, denser vegetation, where they may be more susceptible to predation (Hoffman 2006, p. 46). Therefore, the petitioner concludes that behavioral adaptations that ptarmigans employ to avoid overheating may be ineffective with a warming climate.

Evaluation of Information in the Petition and Available in Service Files —Empirical studies show that warm ambient temperatures negatively affected the population dynamics of the southern white-tailed ptarmigan in Colorado by depressing population growth rates and skewing hatch dates (Wang et al. 2002, p. 81). This study reported that increases in April and May temperatures between years 1975 through 1999 at RMNP significantly advanced the median hatch dates of ptarmigan eggs and depressed the population growth rate of ptarmigans in RMNP (Wang et al. 2002, p. 85). Additionally, a population model anticipated that warming resulted in population decreases from 30 to 40 birds to 2 to 3 birds in RMNP (Wang et al. 2002, p. 84-85). This study concluded that there is a clear population-level response in white-tailed ptarmigans to climate change, and that predicted temperature increases in RMNP may accelerate population declines and increase the probability of local extinction (Wang et al. 2002, p. 86).

As discussed under Factor A, global climate change may result in an increase in temperatures within the habitats of the southern and Mt. Rainier white-tailed ptarmigans; and the effect of increasing temperatures may decrease population growth rates. Additionally, the southern and Mt. Rainier white-tailed ptarmigans are physiologically well adapted to conserve heat and tolerate the cold temperatures of their alpine environments. However, available information suggests that these adaptations are detrimental to the white-tailed ptarmigan in warm temperatures, with heat stress developing quickly when the birds are unable to cool off (Johnson 1968, p. 1012; Hoffman 2006, pp. 24, 31). Although the birds seek cooler microclimates with shade and cover to escape warm temperatures, climatic warming may reduce the number of these cooler microclimates available, and the southern and Mt. Rainier white-tailed ptarmigans may be incapable of avoiding heat stress. If physiologically unable to cool body temperatures through evaporation, guttural fluttering, bathing in snow, or relocating to cooler microclimates, heat stress aggravated by climate change may be a threat to the southern or Mt. Rainier white-tailed ptarmigan. However, the petitioner did not provide information, and we found no evidence in our files to indicate, that the birds are more susceptible to predation in cooler microclimate areas or that females will take fewer foraging breaks so that malnutrition eventually reduces breeding success eventually resulting in a negative population response. But, as discussed above, we still find that warming temperatures associated with climate change may be a threat by depressing population growth rates and aggravating heat stress. Therefore, we find that the information presented in the petition and information in our files presents substantial scientific or commercial evidence to indicate the physiological response of the southern or Mt. Rainier white-tailed ptarmigan to climate warming may be a threat.

Information Presented in the Petition —The petitioner claims that isolation, small populations, low densities, and limited dispersal distances render the southern and Mt. Rainier white-tailed ptarmigans particularly vulnerable to extinction. To support this claim, the petitioner cites a species account for the Vancouver Island white-tailed ptarmigan, the subspecies endemic to Vancouver Island, which indicates that this subspecies exists in low densities with stochastic population dynamics and environmental conditions (Martin and Forbes 2004, pp. 4-5). The petitioner also provides the USFS sensitive species designation for the white-tailed ptarmigan in the Rocky Mountain Region as evidence that population isolation and limited dispersal distances are a threat (USFS 2005, p. 1). The petitioner also explains that alpine habitats are isolated and geographically separated by expanses of unsuitable habitats, and that distances between habitats exceed the maximum recorded travel distances for the white-tailed ptarmigan (Martin et al. 2000, p. 514). Therefore, the petitioner concludes that as climate change modifies and reduces available habitats, distances between suitable habitats will increase, further isolating populations and threatening the subspecies.

Evaluation of Information in the Petition and Available in Service Files —While the Vancouver Island white-tailed ptarmigan may be susceptible to population extirpations because of their low densities, patchy habitats, and stochastic environment, we found no information in the petition nor available in our files that these variables may be threats to either the southern or the Mt. Rainier white-tailed ptarmigan. Contrary to the Vancouver Island white-tailed ptarmigan study, a study in the Rocky Mountains suggested that small population sizes, low densities, relatively low fecundity, and high annual variation in most population parameters did not appear to threaten the white-tailed ptarmigan population (Martin et al. 2000, p. 512). Additional information suggests that a well-developed system of population exchange and recruitment allows ptarmigans to persist in isolated, small populations, even during regional stochastic events in Colorado (Martin et al. 2000, pp. 512, 514). The petitioner provided no information regarding maximum distances between alpine habitats that may hinder population exchange or recruitment, and we have no information indicating that the current distances between alpine habitats may impede interchange for the southern or Mt. Rainier white-tailed ptarmigans. While climate change may increase the distance between alpine habitats, the petitioner did not provide information, and we have no information in our files, that distances between alpine habitats may threaten either subspecies. Additionally, the USFS sensitive species recommendation and evaluation for white-tailed ptarmigan summarizes potential threats, but provides no supporting information regarding population isolation or dispersal distances. Therefore, we find that the petition and information in our files do not present substantial scientific or commercial information to indicate that isolated populations or limited dispersal distances may be threats to the southern and Mt. Rainier white-tailed ptarmigans.

We find that the information presented in the petition regarding population growth rates and physiological response to a warming climate presents substantial scientific or commercial evidence to indicate that the petitioned action may be warranted. We find that the petition does not present substantial scientific or commercial information to indicate that population isolation or limited dispersal distances may be threats to the southern and Mt. Rainier white-tailed ptarmigans. We will evaluate population isolation and limited dispersal distances more fully during our status reviews.

On the basis of our determination under section 4(b)(3)(A) of the Act, we have determined that the petition presents substantial scientific or commercial information indicating that listing the southern and Mt. Rainier white-tailed ptarmigans throughout the entire ranges of both subspecies may be warranted. This finding is based on information provided under factors A and E. The information provided in the petition and available in our files under factors B, C, and D is not substantial. During the status review, we will fully address the cumulative effects of threats discussed under each factor.

Because we have found that the petition presents substantial information indicating that listing the southern and Mt. Rainier white-tailed ptarmigans may be warranted, we are initiating a status review to determine whether listing these subspecies under the Act is warranted.

The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the subspecies, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not necessarily mean that the 12-month finding will result in a warranted finding.

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

The primary authors of this notice are staff members of the Colorado Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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