Joint Board for Enrollment of Actuaries
Agricultural Marketing Service
Animal and Plant Health Inspection Service
Antitrust Division
International Trade Administration
National Oceanic and Atmospheric Administration
Energy Information Administration
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Substance Abuse and Mental Health Services Administration
Agency for Healthcare Research and Quality
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Antitrust Division
Drug Enforcement Administration
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Federal Aviation Administration
Federal Transit Administration
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U.S. Office of Personnel Management.
Interim final rule.
The Office of Personnel Management (OPM) is issuing an interim regulation to amend regulations regarding the effect of any court decree of divorce, annulment, or legal separation, or any court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation (hereinafter “court order”) where the court order expressly provides that an individual receive Federal Employee's Group Life Insurance (FEGLI) benefits. The interim regulations will allow court orders submitted to the appropriate Federal agency before July 22, 1998 to be effective for providing FEGLI benefits if the court order was received in the appropriate office before the insured Federal employee's or annuitant's death. This revision does not affect the current statutory limitation that court orders apply only when FEGLI benefits are based on insured individuals who died after July 22, 1998.
This rule is effective December 4, 2012.
Marguerite Martel, Senior Policy Analyst, at (202) 606-0004 or email:
Public Law 105-205, 112 Stat. 683, enacted July 22, 1998, amending section 8705 of title 5, United States Code, required benefits to be paid in accordance with the terms of a court order instead of the otherwise existing statutory order of precedence for payment of benefits under FEGLI. On October 8, 1999, OPM published a final regulation interpreting the law to mean that only those court orders received in the appropriate office after the date the law was enacted would be valid to name a FEGLI beneficiary. The regulation amended § 870.01(d)(2), of title 5, Code of Federal Regulations.
Based on
Under Section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 551, et seq.) a general notice of proposed rulemaking is required unless an agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. In addition, the APA exempts interpretative rules from proposed rulemaking procedures. This rule expands benefit eligibility based on a court-approved settlement agreement which requires the agency to amend current regulations in an expeditious manner. Therefore, OPM has concluded that delaying implementation of this rule due to a full notice and public comment period would be impracticable and contrary to the public interest. Further, OPM has determined that this rule is an interpretive rule implementing a court decision and adds little substantive interpretation of the law. For the foregoing reasons, OPM asserts that good cause exists to implement this rule as an interim rule under the APA, 5 U.S.C. 553(b) and accordingly, adopts this rule on that basis.
OPM has examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review) and Executive Order 13563, which directs 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 must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule is not considered a major rule because OPM estimates there are relatively few court orders received by the appropriate office before July 22, 1998.
This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal employees, annuitants and their former spouses.
Administrative practice and procedure, Government employees, Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.
U.S. Office of Personnel Management.
Accordingly, OPM is amending 5 CFR part 870 as follows:
5 U.S.C. 8716; Subpart J also issued under section 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 870.302(a)(3)(ii) also issued under section 153 of Pub. L. 104-134, 110 Stat. 1321; Sec.
(d) * * *
(2) To qualify a person for such payment, a certified copy of the court order must be received in the appropriate office before the death of the insured.
Agricultural Marketing Service, USDA.
Affirmation of interim rule as final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule that decreased the assessment rate established for the Avocado Administrative Committee (Committee) for the 2012-13 and subsequent fiscal periods from $0.37 to $0.25 per 55-pound bushel container of Florida avocados handled. The Committee locally administers the marketing order for avocados grown in South Florida. The interim rule decreased the assessment rate to reflect a reduction in expenditures for research and to help reduce industry costs.
Effective December 5, 2012.
Doris Jamieson or Christian D. Nissen, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 325-8793, or Email:
Small businesses may obtain information on complying with this and other marketing order regulations by viewing a guide at the following Web site:
This rule is issued under Marketing Order No. 915, as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida, 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.”
USDA is issuing this rule in conformance with Executive Order 12866.
Under the order, Florida avocado handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable Florida avocados for the entire fiscal period, and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins on April 1, and ends on March 31.
In an interim rule published in the
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 final 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 30 handlers of Florida avocados subject to regulation under the order and around 300 producers in the production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those whose annual receipts are less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).
According to Committee data and information from the National Agricultural Statistical Service (NASS), the average price for Florida avocados during the 2011-12 season was around $16.50 per 55-pound bushel container and total shipments were near 1,200,000 55-bushels. Using the average price and shipment information provided by the Committee, the majority of avocado handlers could be considered small businesses under SBA's definition. In addition, based on avocado production, producer prices, and the total number of Florida avocado producers, the average annual producer revenue is less than $750,000. Consequently, the majority of avocado handlers and producers may be classified as small entities.
This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2012-13 and subsequent fiscal periods from $0.37 to $0.25 per 55-pound bushel container of avocados. The Committee unanimously recommended 2012-13 expenditures of $324,575 and an assessment rate of $0.25 per 55-pound bushel container of avocados. The assessment rate of $0.25 is $0.12 lower than the rate previously in effect. Applying the $0.25 per 55-pound bushel container assessment rate to the Committee's 1,000,000 55-pound bushel container crop estimate should provide $250,000 in assessment income. Thus, income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve will be adequate to cover the budgeted expenses. The decrease in the assessment rate reflects a reduction in Committee expenditures for research and will help reduce industry costs.
This rule continues in effect the action that decreased the assessment obligation imposed on handlers.
In addition, the Committee's meeting was widely publicized throughout the Florida avocado 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 14, 2011, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
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. 0581-0189, Generic OMB Fruit Crops. No changes in those requirements as a result of this action are anticipated. Should any changes become necessary, they would be submitted to OMB for approval.
This action imposes no additional reporting or recordkeeping requirements on either small or large Florida avocado 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.
USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
Comments on the interim rule were required to be received on or before August 31, 2012. No comments were received. Therefore, for reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.
To view the interim rule, go to:
This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, and the E-Gov Act (44 U.S.C. 101).
After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the
Avocados, Reporting and recordkeeping requirements.
Accordingly, the interim rule amending 7 CFR part 915, which was published at 77 FR 39150 on July 2, 2012, is adopted as a final rule, without change.
Office of the General Counsel, Department of Energy (DOE).
Final rule.
DOE is amending its regulations at 10 CFR part 710, which sets forth the policies and procedures for resolving questions concerning eligibility for DOE access authorization, to revise a provision concerning designation of an acting official and to update the official's title. Specifically, the duties assigned to the Principal Deputy for Mission Support Operations (formerly, the Deputy Chief for Operations), Office of Health, Safety and Security, may now be exercised by a person or persons designated in writing as acting for, or in the temporary capacity of, that official. Currently, the part 710 regulations state that this official's duties may be exercised by another individual only in the official's absence. Today's final rule also revises one title: “Principal Deputy for Mission Support Operations” replaces “Deputy Chief for Operations”.
Christina Pak, Office of the General Counsel, GC-52, 1000 Independence Avenue SW., Washington, DC 20585;
10 CFR part 710 sets forth the policies and procedures for resolving questions concerning eligibility for DOE access authorization. Various DOE officials are assigned specific duties in this process. Currently, section 710.36 provides that each of the named officials, with the exception of the Secretary of Energy and the Deputy Chief for Operations, Office of Health, Safety and Security, may designate his or her duties to other DOE officials without restriction.
Since the part 710 rule was last amended in 2001, experience has demonstrated that conditioning the Deputy Chief for Operations' ability to delegate his part 710 functions solely on occasions when he is absent from the office is unduly restrictive, unnecessary, and administratively inefficient. In order to enhance the Department's ability to effectively manage the Administrative Review process prescribed by part 710, the Deputy Chief of Operations should be accorded greater flexibility in delegating his assigned responsibilities under the rule. In those cases where duties of the Deputy Chief of Operations are delegated pursuant to this amendment, they will continue to be exercised by a DOE employee in a security-related Senior Executive Service position within the Office of Health, Safety and Security, as approved by the Chief Health, Safety and Security Officer. In addition, DOE would update part 710 to reflect organizational changes within the Office of Health, Safety and Security by replacing “Deputy Chief for Operations” wherever it appears in the rule with “Principal Deputy Chief for Mission Support Operations”.
The regulatory amendments in this final rule do not alter substantive rights or obligations under current law.
Today's regulatory action has been determined not to be “a significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB). DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. DOE believes that today's rule is consistent with these principles, including the requirement that, to the extent permitted by law, agencies adopt a regulation only upon a reasoned determination that its benefits justify its costs and, in choosing among alternative regulatory approaches, those approaches maximize net benefits.
The regulatory amendments in this notice of final rulemaking reflect a transfer of function that relates solely to internal agency organization, management or personnel. As such, pursuant to 5 U.S.C. 553(a)(2), this rule is not subject to the rulemaking requirements of the Administrative Procedure Act, including the requirements to provide prior notice and an opportunity for public comment and a 30-day delay in effective date.
The Regulatory Flexibility Act (5 U.S.C. 601
This final rule does not impose a collection of information requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501
DOE has concluded that promulgation of this rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector. DOE has determined that today's regulatory action does not impose a Federal mandate on State, local or tribal governments or on the private sector.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guideline issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).
The Office of the Secretary of Energy has approved issuance of this rule.
Administrative practice and procedure, Classified information, Government contracts, Government employees, Nuclear materials.
For the reasons stated in the preamble, DOE amends part 710 of chapter III, title 10, Code of Federal Regulations, as set forth below:
42 U.S.C. 2165, 2201, 5815, 7101,
Except for the Secretary, the responsibilities and authorities conferred in this subpart may be exercised by persons who have been designated in writing as acting for, or in the temporary capacity of, the following DOE positions: The Local Director of Security; the Manager; the Director, Office of Personnel Security, DOE Headquarters; or the General Counsel. The responsibilities and authorities of the Principal Deputy Chief for Mission Support Operations, Office of Health, Safety and Security, may be exercised by persons in security-related Senior Executive Service positions within the Office of Health, Safety and Security who have been designated in writing as acting for, or in the temporary capacity of, the Principal Deputy Chief for Mission Support Operations, with the approval of the Chief Health, Safety and Security Officer.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is revising a final rule published on June 7, 2000 (65 FR 36244). In that final rule, the FAA amended its regulations for the certification of changes to type-certificated products. That amendment was to enhance safety by applying the latest airworthiness standards, to the extent practical, for the certification of significant design changes of aircraft, aircraft engines, and propellers. The existing rule requires the applicant show that the “changed product” complies with applicable standards. This action revises that requirement so that an applicant is required to show compliance only for the change and areas affected by the change. The intended effect of this action is to make the regulation consistent with the FAA's
Send comments identified by docket number FAA-2001-8994 using any of the following methods:
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For technical questions concerning this action, contact Victor Powell, Certification Procedures Office (AIR-110), Aircraft Certification Service, Federal Aviation Administration, 950 L'Enfant Plaza SW., Washington, DC 20024; telephone (202) 385-6326; email
For legal questions concerning this action, contact Douglas Anderson, Northwest Mountain Region—Deputy Regional Counsel (ANM-7), Office of the Chief Counsel, Federal Aviation Administration Northwest Mountain Regional Office, 1601 Lind Ave. SW., Renton, WA 98057; telephone (425) 227-2166; facsimile (425) 227-1007; email
The Federal Aviation Administration's (FAA) authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes the scope of the FAA Administrator's authority.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart III, chapter 447, section 44701. Under that section, Congress charges the FAA with promoting the safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the FAA Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it will clarify existing requirements for an applicant's showing of compliance of an altered type-certificated product.
The FAA has recognized over time the wording of current § 21.101 may establish a requirement for a compliance showing that is too broad for an applicant for a major design change. The current § 21.101(a) requires an applicant to show the “changed product” meets applicable airworthiness requirements.
On June 7, 2000, the FAA published a final rule entitled, “Type Certification Procedures for Changed Products” (65 FR 36244). In that final rule, the FAA revised the procedural requirements for the certification of changes to type-certificated products. The revision required the applicant to apply the latest airworthiness standards in effect, to the extent practical, for the certification of significant design changes of aircraft, aircraft engines, and propellers. Before this final rule, many changes to aeronautical products were not required to show compliance with the latest airworthiness standards. This rule was needed because incremental design approval changes accumulated into significant differences from the original product. The final rule was intended to expand under what conditions the latest airworthiness amendments needed to be applied to changes to aeronautical products.
Section 21.101 requires that applicants show the “changed product” meets the applicable requirements to obtain an amended type certificate, supplemental type certificate, or amended supplemental type certificate. While the purpose of the rule was to enhance safety by requiring compliance with the latest amendments, we intended to limit an applicant's responsibility to those areas affected by the change. Areas not affected by the change, as described in § 21.101(b)(2) need not be resubstantiated.
The preambles to the notice of proposed rulemaking (NPRM) (62 FR 24294, May 2, 1997) and the subsequent final rule entitled “Type Certification Procedures for Changed Products” (65 FR 36244, June 7, 2000) established parameters of an applicant's responsibility for showing compliance with the latest amendments to the change and those areas affected by the change of a type-certificated product. However, the term “product” is defined in § 21.1(b) to mean “aircraft, aircraft engine, or propeller.” By requiring applicants to show the “changed product” meets applicable requirements, we inadvertently required the entire product be shown to meet at least the requirements that applied to the original type certificate. This was not our intent and was neither the FAA's practice before the adoption of that rule, nor has it been our practice since its adoption.
The term “changed product” is replaced with “change and areas affected by the change” in § 21.101 to be consistent with the rule language as established in § 21.101(b)(2) and (b)(3)
During efforts to revise § 21.101, the FAA discovered that § 21.97(a)(2), Approval of major changes in type design, contains similar language to § 21.101 in the case of a “changed product.” The FAA has therefore determined that § 21.97(a)(2) should also be changed by this amendment.
Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a federal mandate likely to result in the expenditure by state, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.
In conducting these analyses, the FAA determined that this rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures, (4) will not have a significant economic impact on a substantial number of small entities, (5) will not create unnecessary obstacles to the foreign commerce of the United States, and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order allows that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a minimal cost determination has been made on this final rule because this requirement reflects current practices.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare an initial regulatory flexibility analysis as described in the RFA. However, if an agency determines that a final rule will not have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The net economic impact of this rule is expected to be minimal. As this rule is clarifying in nature, the acting FAA Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. We assessed the potential effect of this rule and determined that it will not constitute an obstacle to the foreign commerce of the United States, and, thus, is consistent with the Trade Assessments Act.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by state, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This rule does not contain such a mandate; therefore, the requirements of Title II do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.
Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312(f) of the Order and involves no extraordinary circumstances.
See the “Regulatory Evaluation” discussion in the “Regulatory Notices and Analyses” section elsewhere in this preamble.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have Federalism implications.
The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the amendments in this document. The most helpful comments reference a specific portion of the rulemaking, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking. Before acting on this rulemaking, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
An electronic copy of a rulemaking document my be obtained by using the Internet—
1. Search the Federal eRulemaking Portal (
2. Visit the FAA's Regulations and Policies Web page at
3. Access the Government Printing Office's Web page at
Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.
Comments received may be viewed by going to
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the
Aircraft, Aviation safety, Exports, Imports, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration amends chapter I of Title 14, Code of Federal Regulations as follows:
42 U.S.C. 7572; 49 U.S.C. 106(g), 40105, 40113, 44701-44702, 44704, 44707, 44709, 44711, 44713, 44715, 45303.
(a) * * *
(2) Show that the change and areas affected by the change comply with the applicable requirements of this subchapter, and provide the FAA the means by which such compliance has been shown; and
(a) An applicant for a change to a type certificate must show that the change and areas affected by the change comply with the airworthiness requirements applicable to the category of the product in effect on the date of the application for the change and with parts 34 and 36 of this chapter. Exceptions are detailed in paragraphs (b) and (c) of this section.
(b) Except as provided in paragraph (g) of this section, if paragraphs (b)(1), (2), or (3) of this section apply, an applicant may show that the change and areas affected by the change comply with an earlier amendment of a regulation required by paragraph (a) of this section, and of any other regulation the FAA finds is directly related. However, the earlier amended regulation may not precede either the corresponding regulation incorporated by reference in the type certificate, or any regulation in §§ 23.2, 25.2, 27.2, or 29.2 of this subchapter that is related to the change. The applicant may show compliance with an earlier amendment of a regulation for any of the following:
(3) Each area, system, component, equipment, or appliance that is affected by the change, for which the FAA finds that compliance with a regulation described in paragraph (a) of this section would not contribute materially to the level of safety of the product or would be impractical.
(c) An applicant for a change to an aircraft (other than a rotorcraft) of 6,000 pounds or less maximum weight, or to a non-turbine rotorcraft of 3,000 pounds or less maximum weight may show that the change and areas affected by the change comply with the regulations incorporated by reference in the type certificate. However, if the FAA finds that the change is significant in an area, the FAA may designate compliance with an amendment to the regulation incorporated by reference in the type certificate that applies to the change and any regulation that the FAA finds is directly related, unless the FAA also finds that compliance with that amendment or regulation would not contribute materially to the level of safety of the product or would be impractical.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the food additive regulations to provide for the safe use of sodium dodecylbenzenesulfonate (CAS No. 25155-30-0) as an antimicrobial agent for use in wash water for fruits and vegetables without the requirement of a potable water rinse. This action is in response to a petition filed by Ecolab, Inc.
This rule is effective December 4, 2012. Submit either electronic or written objections and requests for a hearing by January 3, 2013. See section VII of this document for information on the filing of objections.
You may submit either electronic or written objections and requests for a hearing, identified by Docket No. FDA-2011-F-0853, by any of the following methods:
Submit electronic objections in the following way:
•
Submit written objections in the following ways:
•
•
Molly Harry, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-1075.
In a notice published in the
The use of SDBS is currently approved in washing or to assist in the peeling of fruits and vegetables under § 173.315 provided its use is followed by a potable water rinse. In addition, FDA food additive regulations permit the use of SDBS as an indirect food additive for use as a component of single and repeated use food contact substances (21 CFR 177.1010, 177.1200, 177.1630, 177.2600, and 177.2800), in sanitizing solutions (21 CFR 178.1010), and in the production of animal glue (21 CFR 178.3120).
The definition of “pesticide chemical” under section 201(q)(1)(B)(i) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 321(q)(1)(B)(i)), excludes an antimicrobial added to water that comes into contact with food, in the preparing, packing, or holding of the food for commercial purposes. This exclusion applies whether the water is to contact raw agricultural commodities or processed food. Consequently, such an antimicrobial is a “food additive” under section 201(s) of the FD&C Act and subject to the requirements in section 409 of the FD&C Act (21 U.S.C. 348). The petitioned use of SDBS as an antimicrobial agent in processing water is for a food additive use in certain food service facilities. Although the petitioned use of SDBS is regulated under section 409 of the FD&C Act as a food additive, this intended use of SDBS may nevertheless be subject to regulation as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Therefore, manufacturers intending to use this food additive for this intended use should contact the Environmental Protection Agency to determine whether this use requires a pesticide registration under FIFRA.
Under the general safety standard in section 409 of the FD&C Act, a food additive cannot be approved for a particular use unless a fair evaluation of the data available to FDA establishes that the additive is safe for that use. FDA's food additive regulations (21 CFR 170.3(i)) define “safe” as “a reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use.”
To establish with reasonable certainty that a food additive is not harmful under its intended conditions of use, FDA considers the projected human dietary intake of the additive, the additive's toxicological data, and other relevant information (such as published literature) available to FDA. As part of FDA's safety evaluation, FDA reviewed data from published studies in animals on the safety of SDBS, including a 2-year carcinogenicity study in rats and a multigeneration reproductive study with rats. Based on the results from these studies and FDA's estimated dietary intake to SDBS from current and the proposed food uses, FDA concludes that there is a reasonable certainty of no harm and the petitioned use of SDBS is safe within the meaning of section 409 of the FD&C Act.
FDA reviewed data in the petition and other available relevant material to evaluate the safety of SDBS as an antimicrobial agent for use in wash water for fruits and vegetables without the requirement of a potable water rinse. Based on this information, FDA concludes that the proposed use of the additive is safe and the additive will achieve its intended technical effect as an antimicrobial agent under the proposed conditions of use. Therefore, the regulations in part 173 should be amended as set forth in this document.
In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition will be made available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person (see
FDA has carefully considered the potential environmental effects of this action. FDA has concluded that the action will not have a significant impact on the human environment, and that an environmental impact statement is not required. FDA's finding of no significant impact and the evidence supporting that finding, contained in an environmental assessment, may be seen in the Division of Dockets Management (see
This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
Any person who will be adversely affected by this regulation may file with the Division of Dockets Management (see
FDA's review of this petition was limited to section 409 of the FD&C Act. This final rule is not a statement regarding compliance with other sections of the FD&C Act. For example, the Food and Drug Administration Amendments Act of 2007, which was signed into law on September 27, 2007, amended the FD&C Act to, among other things, add section 301(ll) (21 U.S.C. 331(ll)). Section 301(ll) of the FD&C Act prohibits the introduction or delivery for introduction into interstate commerce of any food that contains a drug approved under section 505 of the FD&C Act (21 U.S.C. 355), a biological product licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or a drug or biological product for which substantial clinical investigations have been instituted and their existence has been made public, unless one of the
Food additives.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 173 is amended as follows:
21 U.S.C. 321, 342, 348.
Sodium dodecylbenzenesulfonate (CAS No. 25155-30-0) may be safely used in accordance with the following prescribed conditions:
(a) The additive is an antimicrobial agent used in wash water for fruits and vegetables. The additive may be used at a level not to exceed 111 milligrams per kilogram in the wash water. Fruits and vegetables treated by the additive do not require a potable water rinse.
(b) The additive is limited to use in commissaries, cafeterias, restaurants, retail food establishments, nonprofit food establishments, and other food service operations in which food is prepared for or served directly to the consumer.
(c) To assure safe use of the additive, the label or labeling of the additive container shall bear, in addition to the other information required by the Federal Food, Drug, and Cosmetic Act, adequate directions to assure use in compliance with the provisions of this section.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary Safety Zone on the waters of Maumee River, Toledo, Ohio, from 8:30 a.m. on November 27, 2012 until 6:30 p.m. on December 7, 2012. This safety zone will encompass all waters of Maumee River starting from the CSX Railroad Bridge at River Mile Marker 1.07 and ending 700 feet downriver from the CSX Railroad Bridge. This temporary Safety Zone is necessary to protect persons operating in the area.
This temporary final rule is effective December 4, 2012. This rule has been enforced with actual notice since November 27, 2012.
Documents mentioned in this preamble are part of docket USCG-2012-0971. To view documents mentioned in this preamble as being available in the docket, go
If you have questions on this temporary rule, call or email MST1 Kevin Biami, Marine Safety Unit Toledo, Coast Guard; telephone (419) 418-6008, email
On October 18, 2012, the Coast Guard established a temporary final rule (TFR) entitled Safety Zone; Overhead Cable Replacement, Maumee River, Toledo, OH (docket number USCG-2012-0948) in support of the replacement of electrical cables suspended over the Maumee River. To coincide with the expected schedule of the cable replacement project, that TFR was effective from 9:30 a.m. on October 23, 2012 until 3 p.m. on October 26, 2012. However, due to an equipment failure, an unforeseen breakage of one of the electrical cables and inclement weather conditions, the contractor had requested an extension of the safety zone, and a subsequent TFR was established on October 26, 2012, extending the safety zone from 9:30 a.m. on October 27, 2012 until 3 p.m. on November 2, 2012. Due to the effects of Hurricane Sandy, the contractor was unable to complete the operation and has requested that a new safety zone be established from 8:30 a.m. on November 27, 2012 until 6:30 p.m. on December 7, 2012.
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this stage of the operation were not known to the Coast Guard until there was insufficient time remaining before the operation to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public from the hazards associated with this Coast Guard operation.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
First Energy/Toledo Edison is replacing three overhead power cables that span across the Maumee River near the CSX Railroad Bridge on the Maumee River. All work will be near the CSX Railroad Bridge on the downriver side. The Captain of the Port Detroit has determined that this stage of the operation continues to pose certain public hazards, including possible entanglement of the power lines in a vessel's propellers if the power lines are dropped onto the Maumee River during the operation.
With the aforementioned hazards in mind, the Captain of the Port Detroit has determined that a safety zone is necessary to ensure the safety of participants and vessels during the operation. The temporary safety zone is established herein will be enforced from 8:30 a.m. on November 27, 2012 until 6:30 p.m. on December 7, 2012, and will be enforced from 8:30 a.m. until 6:30 p.m. on each day of this period.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Detroit or his designated on scene representative. The Captain of the Port, Sector Detroit or his designated on scene representative may be contacted via VHF Channel 16. All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port, designated on scene patrol personnel, or operation personnel.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory 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 these Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this 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 safety zone created by this rule will be relatively small and enforced for relatively short time. Although the requesting organization, First Energy/Toledo Edison, is requesting a ten hour block each day for up to eleven days, First Energy/Toledo Edison estimates that the safety zone will only need to be active for forty minutes to three hours on each day. Also, the safety zone is designed to minimize its impact on navigable waters. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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 rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit through the Maumee River, OH between 8:30 a.m. and 6:30 p.m. on November 27th, 28th, 29th, 30th, and December 1st, 2nd, 3rd, 4th, 5th, 6th and 7th 2012.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule is expected to be in effect for only approximately forty minutes to three hours each day. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port, Sector Detroit to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.
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 rule so that they can better evaluate its effects on them. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a 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 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. We have analyzed this rule under that Order and determined that this rule 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 rule
This 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 rule meets 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 rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this 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 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 rule involves a temporary safety zone and, therefore it is categorically excluded from further review under paragraph (34)(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1) “On-scene Representative” means any Coast Guard Commissioned, warrant, or petty officer designated by the Captain of the Port Detroit to monitor a safety zone, permit entry into the zone, give legally enforceable orders to persons or vessels within the zones, and take other actions authorized by the Captain of the Port.
(2) “Public vessel” means vessels owned, chartered, or operated by the United States, or by a State or political subdivision thereof.
(2) This safety zone is closed to all vessel traffic, excepted as may be permitted by the Captain of the Port Detroit or his designated representative. All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port or his designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.
(3) All vessels must obtain permission from the Captain of the Port or his designated representative to enter, move within, or exit the safety zone established in this section when this safety zone is enforced. Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port or a designated representative. While within a safety zone, all vessels must operate at the minimum speed necessary to maintain a safe course.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve a revision to the Delaware Department of Natural Resources and Environmental Control (DNREC) State Implementation Plan (SIP). The revision amends Regulation 1102—PERMITS, Appendix A to provide permit exemptions for certain internal combustion engines. EPA is approving this revision in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on February 4, 2013 without further notice, unless EPA receives adverse written comment by January 3, 2013. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0619 by one of the following methods:
A.
B.
C.
D.
Cathleen Van Osten, (215) 814-2746, or by email at
On April 29, 2008 (73 FR 23101), EPA approved a SIP revision containing provisions to control emissions from stationary generators. The revision added a new regulation, Regulation No. 1144—CONTROL OF STATIONARY GENERATOR EMISSIONS. The regulation established operating requirements, fuel sulfur content limits, and record keeping requirements for stationary generators.
On November 1, 2007, the Delaware Department of Natural Resources and Environmental Control submitted a formal revision to its State Implementation Plan. The SIP revision contains amendments to Regulation No. 1102—PERMITS. This amendment clarifies the permitting requirements for owners of stationary generators, specifically adding certain internal combustion engines to the list of exempted sources in Appendix A, of Regulation No. 1102, List of Exempted Sources. The amendment exempts: (a) Any internal combustion engine associated with a stationary electrical generator that (1) has a standby power rating of 450 kilowatts or less that is used only during the times of emergency, (2) is located at any residence, or (3) is located at any commercial poultry producing premise, as these terms are defined in Regulation No. 1144; and (b) any internal combustion fuel burning equipment, which is not associated with a stationary electrical generator, and has an engine power rating of 450 horsepower (hp) or less.
EPA is approving the Delaware SIP revision for Regulation No. 1102-PERMITS submitted on November 1, 2007. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions,
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 4, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Final rule; correction.
The Department of Health and Human Services is correcting a final rule that appeared in the
Robbin Weyant, Director, Division of Select Agents and Toxins, Centers for Disease Control and Prevention, 1600 Clifton Rd., MS A-46, Atlanta, GA 30333. Telephone: (404) 718-2000.
In FR Doc. 2012-24389, published on October 5, 2012 (77 FR 61084) appearing on pages 61086 and 61110, the following corrections are made: Preamble [Corrected]
1. On page 61086, in the second column, second paragraph, beginning on the fourth line, “According to available reports, Lujo virus (1) caused a fatal outbreak of hemorrhagic fever, (2) has a case fatality rate of 80 percent, (3) has been phylogenetically identified as an arenavirus, and (4) is related to those members of the Old World arenaviridae family (Junin, Machupo, Sabia, Guanarito, and Lassa) listed as HHS select agents that cause hemorrhagic fever and pose a significant risk to public health and safety (Ref 2)” is corrected to read: “According to available reports, Lujo virus (1) caused a fatal outbreak of hemorrhagic fever, (2) has a case fatality rate of 80 percent, (3) has been phylogenetically identified as an arenavirus, and (4) is related to those members of the
2. On page, 61110, in the second column, in § 73.0 (Applicability and related requirements), in paragraph one, “All individuals and entities that possess SARS-CoV, Lujo virus, or Chapare virus must provide notice to CDC regarding their possession of SARS-CoV, Lujo virus, or Chapare virus on or before November 5, 2012. Currently registered individuals and entities possessing SARS-CoV, Lujo virus, or Chapare virus must meet all the requirements of this part by December 4, 2012. All previously unregistered individuals and entities possessing SARS-CoV, Lujo virus, or Chapare virus must meet all of the requirements of this part by April 3, 2013 is corrected to read: “All individuals and entities that possess SARS-CoV, Lujo virus, or Chapare virus must provide notice to CDC regarding their possession of SARS-CoV, Lujo virus, or Chapare virus on or before December 4, 2012. Currently registered individuals and entities possessing SARS-CoV, Lujo virus, or Chapare virus must meet all the requirements of this part by December 4, 2012. All previously unregistered individuals and entities possessing SARS-CoV, Lujo virus, or Chapare virus must meet all of the requirements of this part by April 3, 2013.”
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
42 U.S.C. 4001
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) amends its rules to reassign to the Office of Managing Director (OMD) certain audit activities formerly assigned to the Office of Inspector General (OIG). The activities concern oversight of the annual audit of the Universal Service Administrative Corporation (USAC) required by the Commission's rules. In addition, the Commission delegates of authority to OMD, in consultation with the Office of General Counsel, to issue subpoenas concerning matters within its jurisdiction.
Effective December 4, 2012.
Office of Managing Director, Financial Operations: call Thomas Buckley at (202) 418-0725.
This is a summary of the Part 54 Audit Authority Transition Order released on October 19, 2012. The Part 54 Audit Authority Transition Order and related Commission documents may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, fax 202-488-5563, or you may contact BCPI at its Web site:
1. Section 54.717 of the Commission's rules requires the USAC “to obtain and pay for an annual audit conducted by an independent auditor to examine its operations and books of account to determine, among other things, whether * * * [USAC] is properly administering the universal service support mechanisms to prevent fraud, waste, and abuse.” Since 2006, OIG has been the staff unit responsible for overseeing the conduct of the part 54 audit. The purpose of this annual audit has been to oversee the operations of the Universal Service Administrator and to safeguard the Universal Service Fund from potential waste, fraud, and abuse.
2. The Commission amends section 54.717 of its rules to substitute OMD as the staff unit responsible for overseeing the part 54 USAC audit. In 2010, OMD instructed USAC that OIG would no longer directly conduct or oversee the universal service fund beneficiary and contributor audit plan (BCAP), an audit separate from the part 54 USAC audit. This change was in furtherance of OIG's understanding of its responsibilities consistent with the Inspector General Act of 1978, as amended (IG Act). As a result, OMD assumed from OIG the responsibility for directing and overseeing USAC's implementation of the BCAP program. Consistent with OIG's request that the part 54 audit function be transferred back to an appropriate Bureau or Office, and because the Commission finds that OMD now oversees the universal service fund BCAP audits and has in place the resources and expertise needed to oversee the part 54 audit as well, the Commission transfers part 54 oversight authority to OMD.
3. Given this augmentation of OMD's role in audit oversight, the Commission also finds it appropriate to delegate limited authority to OMD, upon receiving approval from the Office of General Counsel, to issue subpoenas that directly relate to OMD'S oversight of audits of the USF programs and OMD's review and evaluation of the interstate telecommunications relay services fund, the North American numbering plan, regulatory fee collection, FCC operating expenses, and debt collection. By granting OMD with this specific, limited and discreet subpoena authority, the Commission will ensure that OMD has the necessary tools to obtain all relevant documentation in a timely manner to complete audit findings and implement corrective actions for all of these programs. Absent this delegation, there is the potential that an audited entity in a particular FCC program may resist providing essential data to OMD to confirm that entity is operating consistent with program rules. Providing OMD with this specific, limited and discreet subpoena authority, therefore strengthens OMD's ability to effectively review and evaluate the aforementioned FCC programs in a
4. The rule amendments adopted in this Order involve rules of agency organization, procedure, or practice. The notice and comment and effective date provisions of the Administrative Procedure Act are therefore inapplicable.
5. Accordingly, it is ordered, that pursuant to sections 4(i), 4(j), 5(c), 303(r), 47 U.S.C. 154(i), 154(j), 155(c), 303(r) of the Communications Act of 1934, as amended, 47 CFR part 54 is amended, as set forth below, effective upon publication in the
Classified information, Freedom of information, Government publications, Reporting and recordkeeping requirements.
Communications common carriers, Health facilities, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 0 and 54 as follows:
Secs. 5, 48 Stat. 1068, as amended;
(l)
Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection requirements associated with certain of the provisions of the rules adopted as part of the Commission's
The Office of Management and Budget granted approval on November 7, 2012 for the information collection requirements under OMB Control No. 3060-0819.
Jonathan Lechter, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484.
This document announces that, on November 7, 2012, OMB approved, for a period of three years, the information collection requirements contained in the Commission's
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on November 7, 2012, for the information collection requirements contained in the Commission's rules at 47 CFR Sections 54.202(a), 54.401(d), 54.403, 54.404, 54.405(c), 54.405(e) except the portion of paragraph (4) relating to temporary address de-enrollment, 54.407, 54.410(a) through (f), 54.416, 54.417, 54.420, and 54.422.
Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0819.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Pub. L. 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
Nature and Extent of Confidentiality: The Commission is not requesting that respondents submit confidential information to the Commission. We note that the Universal Service Administrative Corporation must preserve the confidentiality of all data obtained from respondents and contributors to the universal service support program mechanism, must not use the data except for purposes of administering the universal service support program, and must not disclose data in company-specific form unless directed to do so by the Commission. Also, respondents may request materials or information submitted to the Commission be withheld from public inspection under 47 CFR 0.459 of the Commission's rules.
Needs and Uses: In the
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection requirements (form revisions) associated with the Commission's rules contained in the Third Report and Order, FCC 11-190, pertaining to the policies to promote rural radio service and to streamline allotment and assignment procedures. This notice is consistent with the Third Report and Order, which stated that the Commission would publish a document in the
Cathy Williams on (202) 418-2918 or via email to:
This document announces that, on October 10, 2012, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Third Report and Order, FCC 11-190, published at 77 FR 2916, January 20, 2012. The OMB Control Number is 3060-0031. The Commission publishes this document as an announcement of the effective date of the information collection requirements (form revisions for FCC Forms 314 and 315).
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on October 10, 2012, for the form revisions to FCC Forms 314 and 315.
Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0031.
The foregoing is required by the Paperwork Reduction Act of 1995, Pub. L. 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
Furthermore, under the Commission's Tribal Priority procedures, entities obtaining:
(a) An AM authorization for which the applicant claimed and received a dispositive Section 307(b) priority because it qualified for the Tribal Priority; or
(b) An FM commercial non-reserved band station awarded:
(1) To the applicant as a singleton Threshold Qualifications Window applicant,
(2) To the applicant after a settlement among Threshold Qualifications Window applicants, or
(3) To the applicant after an auction among a closed group of bidders composed only of threshold qualified Tribal applicants; or
(c) A reserved-band NCE FM station for which the applicant claimed and received the Tribal Priority in a fair distribution analysis as set forth in 47 CFR 73.7002(b)(1), may not assign or transfer the authorization during the period beginning with issuance of the construction permit, until the station has completed four years of on-air operations, unless the assignee or transferee also qualifies for the Tribal Priority. Pursuant to procedures set forth in the Rural Third R&O, 26 FCC Rcd at 17645-50, the Tribal Priority Holding Period is now applied in the context of authorizations obtained using Tribal Priority Threshold Qualifications.
Consistent with actions taken by the Commission in the Rural Third R&O, the following changes are made to Forms 314 and 315: Section I of each form includes a question asking applicants to indicate whether any of the authorizations involved in the subject transaction were obtained: after award of a dispositive Section 307(b) preference using the Tribal Priority; through Threshold Qualification procedures; or through the Tribal Priority as applied before the NCE fair distribution analysis. A subsequent question then asks whether both the assignor/transferor and assignee/transferee qualify for the Tribal Priority in all respects. Applicants not meeting the Tribal Priority qualifications and proposing an assignment or transfer during the Holding Period must provide an exhibit demonstrating that the transaction is consistent with the Tribal Priority policies or that a waiver is warranted. The instructions for Section I of Forms 314 and 315 have been revised to assist applicants with completing the questions.
National Highway Traffic Safety Administration (NHTSA), DOT.
Final rule.
This document amends regulations that prescribe the format and contents labels that manufacturers are required to affix to motor vehicles manufactured for sale in the United States to certify the compliance of those vehicles with U.S. safety standards. The amendment will require specified certification language to be included on the labels affixed to certain types of vehicles.
This rule is effective January 3, 2013. Petitions for reconsideration must be received by NHTSA not later than January 18, 2013.
Petitions for reconsideration of this final rule should refer to the docket and notice numbers identified above and be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., West Building, Washington, DC 20590. It is requested, but not required, that 10 copies of the petition be submitted. The petition must be received not later than 45 days after publication of this final rule in the
The petition must contain a brief statement of the complaint and an explanation as to why compliance with the final rule is not practicable, is unreasonable, or is not in the public interest. Unless otherwise specified in the final rule, the statement and explanation together may not exceed 15 pages in length, but necessary attachments may be appended to the submission without regard to the 15-page limit. If it is requested that additional facts be considered, the petitioner must state the reason why they were not presented to the Administrator within the prescribed time. The Administrator does not consider repetitious petitions and unless the Administrator otherwise provides, the filing of a petition does not stay the effectiveness of the final rule.
Coleman Sachs, Office of Vehicle Safety Compliance, 1200 New Jersey Avenue SE., Washington, DC 20590; (202) 366-3151.
NHTSA published a final rule on February 14, 2005 (70 FR 7414) that amended certain provisions of title 49, Code of Federal Regulations, that pertain to the certification of motor vehicles to standards administered by NHTSA. In amending the provisions that establish the format and content requirements for certification labels, the agency inadvertently omitted from 49 CFR 576.4(g)(5) the requirement for manufacturers to include a specific certification statement in the labels they affix to certain types of motor vehicles. This rule corrects that inadvertent omission.
This rule was preceded by a notice of proposed rulemaking that NHTSA published on August 6, 2012 (77 FR 46677). There were no comments in response to the notice of proposed rulemaking.
Under the National Traffic and Motor Vehicle Safety Act of 1966, as amended, (49 U.S.C. 30112(a), 30115), a motor vehicle manufactured for sale in the United States must be manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS) and bear a label certifying such compliance that is permanently affixed by the vehicle's original manufacturer. The label constitutes the manufacturer's certification that the vehicle complies with the applicable standards. Under 49 CFR 567.4, the label, among other things, must identify the vehicle's manufacturer, its date of manufacture, its gross vehicle weight rating or GVWR, the gross axle weight rating or GAWR of each axle, the vehicle type classification (e.g., passenger car, multipurpose passenger vehicle, truck, bus, motorcycle, trailer, low-speed vehicle), and the vehicle's Vehicle Identification Number or “VIN.” The certification label must also contain a variant of the statement: “This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above.” For example, passenger cars are subject to safety, bumper, and theft prevention standards; therefore, a passenger car certification label must contain the statement: “This vehicle conforms to all applicable Federal motor vehicle safety, bumper, and theft prevention standards in effect on the date of manufacture shown above.” The expression “U.S.” or “U.S.A.” may be inserted before the word “Federal” as it appears in this statement.
In the final rule published on February 14, 2005 (70 FR 7414), 49 CFR 567.4(g)(5) was amended by replacing the statement “This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above” with the language, “One of the following statements, as appropriate” followed by subparagraphs i, ii, and iii, which pertain, respectively, to passenger cars, multipurpose passenger vehicles (MPVs) and trucks with a GVWR of 6,000 pounds or less, and multipurpose passenger vehicles and trucks with a GVWR of over 6,000 pounds. Manufacturers of other types of motor vehicles remained subject to the statutory duty to certify those vehicles to the applicable FMVSS. And the logical certification language for these manufacturers to use was: “This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above.” But due to an inadvertent omission in the course of amendments to the regulations, the regulations did not specifically state that manufacturers of trailers, buses, motorcycles, and low-speed vehicles (those vehicle types not identified by subparagraphs i, ii, and iii) were required to use this specific language. To address this lack of specificity, the agency is amending section 567.4(g) to add a new subparagraph (iv) that covers these vehicle types. Subparagraphs i, ii, and iii remain unchanged.
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
NHTSA has considered the impact of this rulemaking under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking is not significant. Accordingly, the Office of Management and Budget has not reviewed this rulemaking under Executive Order 12886. Further, NHTSA has determined that the rulemaking is not significant under Department of Transportation's regulatory policies and procedures. Manufacturers are required by statute (49 U.S.C. 30115(a)) to permanently affix a tag or label to a vehicle certifying the vehicle's compliance with applicable safety standards. The agency is not aware of any manufacturer that has discontinued inserting the certification language on the certification labels affixed to trailers, buses, motorcycles, and low-speed vehicles manufactured since the regulations were revised in 2005. Based on this, NHTSA currently anticipates that the costs of the final rule would be so minimal as not to warrant preparation of a regulatory evaluation. The action does not involve any substantial public interest or controversy. The rule would have no substantial effect upon State and local governments. There would be no substantial impact upon a major transportation safety program.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) provides that no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.
NHTSA has considered the effects of this rulemaking under the Regulatory Flexibility Act, and certifies that the rule being adopted will not have a significant economic impact on a substantial number of small entities. Accordingly, the agency has not prepared a final regulatory flexibility analysis for this rulemaking. NHTSA makes these statements on the basis that covered entities have been and are subject to a statutory obligation to certify vehicles they manufacture, this rulemaking merely restores text that was part of the regulation before it was last amended in 2005, and manufacturers have continued to affix labels that include the appropriate certification language on trailers, buses, motorcycles, and low-speed vehicles manufactured since then. As a consequence, this rulemaking will not impose any significant costs on anyone. Therefore, it has not been necessary for NHTSA to conduct a regulatory evaluation or Regulatory Flexibility Analysis for this rulemaking.
The costs of the 2005 amendments were analyzed at the time they were issued as a final rule. At that time, we explained that the rule did not impose
The agency is not aware that any vehicle manufacturers have stopped including the certification language that is the subject of this rule on the labels they affix to trailers, buses, motorcycles, or low-speed vehicles. For this reason, we view this rulemaking as merely restoring to the regulation text that was inadvertently omitted in the 2005 amendment and find that there is no change in the meaning or application of the rule as explained in the preamble at 70 FR 7414.
Executive Order 13132 on “Federalism” requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” Executive Order 13132 defines the term “policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, NHTSA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rulemaking action.
Executive Order 12988 requires that agencies review proposed regulations and legislation and adhere to the following general requirements: (1) The agency's proposed legislation and regulations shall be reviewed by the agency to eliminate drafting errors and ambiguity; (2) The agency's proposed legislation and regulations shall be written to minimize litigation; and (3) The agency's proposed legislation and regulations shall provide a clear legal standard for affected conduct rather than a general standard, and shall promote simplification and burden reduction.
When promulgating a regulation, Executive Order 12988 specifically requires the agency to make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.
NHTSA has reviewed this rulemaking according to the general requirements and the specific requirements for regulations set forth in Executive Order 12988. This rulemaking simply restores text that existed before the regulation was amended in 2005 and makes clear the requirement that manufacturers include language in the certification labels that they must affix to vehicles under 49 U.S.C. 30115 and the regulations at 49 CFR part 567. This change does not result in any preemptive effect and does not have a retroactive effect. A petition for reconsideration or other administrative proceeding is not required before parties may file suit in court.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with the base year of 1995). Before promulgating a rule for which a written assessment is needed, Section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Because this final rule will not require the expenditure of resources beyond $100 million annually, this action is not subject to the requirements of Sections 202 and 205 of the UMRA.
Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule includes a “collection of information,” as that term is defined in 5 CFR part 1320
OMB has approved NHTSA's collection of information associated with motor vehicle labeling requirements under OMB clearance no. 2127-0512,
Executive Order 13045 applies to any rule that (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned rule is preferable to other potentially effective and reasonably feasible alternatives considered by us. This rulemaking is not economically significant and does not concern an environmental, health, or safety risk.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs the agency to provide Congress, through the OMB, with explanations when we decide not to use available and applicable voluntary consensus standards.
In this final rule, we are adding to 49 CFR 576.4(g)(5) the requirement that manufacturers include in the certification labels that they affix to certain types of motor vehicles a statement certifying that the vehicle conforms to all applicable FMVSS. This language was inadvertently omitted from the regulation in 2005 and we are adopting no substantive changes to the regulation nor do we propose any technical standards. For these reasons, Section 12(d) of the NTTAA would not apply.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Labeling, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, Part 567, Certification, in Title 49 of the Code of Federal Regulations is amended as follows:
49 U.S.C. 322, 30111, 30115, 30117, 30166, 32502, 32504, 33101-33104, 33108, and 33109; delegation of authority at 49 CFR 1.95.
(g) * * *
(5) * * *
(iv) For all other vehicles, the statement: “This vehicle conforms to all applicable Federal motor vehicle safety standards in effect on the date of manufacture shown above.” The expression “U.S.” or “U.S.A.” may be inserted before the word “Federal”.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Final rule.
NHTSA is amending the Federal motor vehicle safety standard (FMVSS) on lamps, reflective devices, and associated equipment to restore the blue and green color boundaries that were removed when the agency published a final rule reorganizing that standard on December 4, 2007.
Any petitions for reconsideration should refer to the docket number of this document and be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, West Building, Ground Floor, Docket Room W12-140, Washington, DC 20590.
For technical issues: Ms. Marisol Medri, Office of Crash Avoidance Standards, NHTSA, 1200 New Jersey Avenue SE, West Building, Washington, DC 20590 (Telephone: (202) 366-6987) (Fax: (202) 366-7002).
For legal issues: Mr. Thomas Healy, Office of the Chief Counsel, NHTSA, 1200 New Jersey Avenue SE, West Building, Washington, DC 20590 (Telephone: (202) 366-2992) (Fax: (202) 366-3820).
FMVSS No. 108,
SABIC Innovative Plastics US LLC (SABIC-IP) sent a letter to NHTSA on August 11, 2008, after the final rule comment period was over. In this letter, SABIC-IP stated that the agency did not allow for public comment when it made the decision to remove the blue and green color boundaries from the standard. SABIC-IP further stated that in removing the blue and green color boundaries from paragraph S14.4.1.3.2, the agency substantively changed the requirements of FMVSS No. 108 during the rewrite process. On July 13, 2011, NHTSA published a NPRM
In the NPRM, the agency explained that while neither blue nor green are directly permitted by the standard, it is possible to use these color boundaries to certify a material to the outdoor exposure test. Once individually certified to the three year outdoor exposure test, the blue and clear material could be mixed to produce a clear material with a blue tint, which could then be used in a lamp lens provided the lamp itself emits light within the white color boundary. Under the standard, the mixed material can be certified to the outdoor exposure test without an additional three years of testing. The pre-rewrite version of the standard contained two tests for determining compliance with the color requirements in the standard, the Visual Method or the Tristimulus Method. The blue and green color boundary definitions that were removed are part of the color requirements of the Tristimulus method procedure. The NPRM proposed to amend FMVSS No. 108 to restore the color boundary definitions for green, restricted blue and signal blue so that the requirements of the rewrite coincide with those of the old standard.
NHTSA received four public comments in response to the Notice of Proposed Rulemaking for this rulemaking.
The Alliance of Automobile Manufacturers (the “Alliance”) supported the rulemaking but stated that the agency omitted the color requirements for green and blue when tested according to the visual method. The Alliance claimed that these requirements from SAE J578c
SABIC-IP submitted a comment urging the agency to restore the green and blue color boundaries to FMVSS No. 108. SABIC-IP also requested that the agency clarify that polymers and additives would not have to be retested to the three year outdoor exposure test after the effective date of the administrative rewrite before being combined to create new materials. SABIC-IP stated that the rewrite of the standard creates ambiguity as to whether combinations of individually certified materials can continue to be mixed to create new material and then certified to the outdoor exposure test without an additional three years of testing as was permitted under the pre-write version of the standard. SABIC-IP requested that NHTSA amend paragraph S14.4.2.2.2 to state that materials and additives used in plastics could be changed without outdoor exposure testing if the materials had previously been tested to FMVSS No. 108 and found to meet the requirements. Paragraph S14.4.2.2.2 currently states that materials and additives used in plastics can be changed without outdoor exposure testing if the materials have previously been tested to “this section” and found to meet the requirements. SABIC-IP believes that it is possible to interpret the use of the words “this section” in paragraph S14.4.2.2.2 to require that materials be retested to the outdoor exposure test in the new paragraph S14.4.2.2.2, published in December 2007, before they can be used to create new materials. SABIC-IP stated that this interpretation would go against the stated goal of the rewrite of the standard to refrain from making any substantive change to the requirements.
SABIC-IP also asked the agency to clarify that the lower concentration of additive of previously tested materials used to create a new material according to S14.4.2.2.2 paragraph can be represented by a composition of zero.
Since it was not the agency's intention to create any substantive modifications to the standard, we have decided to amend FMVSS No. 108 to add the color boundary definitions for green, restricted blue and signal blue to the Tristimulus method procedure as proposed in the NPRM and to include the two missing color requirements from the visual method procedure so that the requirements of the rewrite coincide with those of the old standard.
We have decided not to amend paragraph S14.4.2.2.2 of FMVSS No. 108 as requested by SABIC-IP over the course of the rewrite rulemaking. We attempted, where ever possible, to avoid changes to the language of the standard. We note that the phrase “this section” refers to the requirements of paragraph S14.4.2.2 in general, not to a specific version of the standard. Thus, so long as the additives and polymers have previously been tested to and found to comply with the same substantive requirements as they appear in FMVSS No. 108, they can be added to create new materials without additional outdoor exposure testing. However, if the requirements of S14.4.2.2 were changed, previously tested additives and polymers would no longer have been tested to “this section” and would have to be retested to the outdoor exposure test before being used to create new materials under paragraph S14.4.2.2.2.
The agency will respond to SABIC-IP's comment about the lower concentration of additive used to create new materials being represented by a composition of zero in a letter of interpretation from the NHTSA Office of Chief Counsel.
The National Highway and Motor Vehicle Safety Act states that an FMVSS issued by NHTSA cannot become effective before 180 days after the standard is issued unless the agency makes a good cause finding that a different effective date is in the public interest. Additionally, the Administrative Procedure Act (5 U.S.C. 553(d)) requires that a rule be published 30 days prior to its effective date unless one of three exceptions applies. One of these exceptions is when the agency finds good cause for a shorter period. We have determined that it is in the public interest for this final rule to have an immediate effective date so that the effective date of this final rule coincides as closely as possible with the effective date of the 2007 rewrite of the standard. An effective date for this final rule that
NHTSA has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the DOT's regulatory policies and procedures. This final rule was not reviewed by the Office of Management and Budget (OMB) under E.O. 12866, “Regulatory Planning and Review.” It is not considered to be significant under E.O. 12866 or the Department's regulatory policies and procedures.
This Final Rule restores existing requirements to the standard thereby maintaining flexibility in compliance for manufacturers who choose to use these colors to certify materials to the outdoor exposure test. Because this Final Rule merely restores existing requirements it is not expected to have any costs. The agency expects some minor unquantifiable benefits to manufacturers due to the continued availability of the green and blue color boundaries to certify to the outdoor exposure test. Because there are not any costs associated with this rulemaking and only minor unquantifiable benefits, we have not prepared a separate economic analysis for this rulemaking.
The policy statement in section 1 of Executive Order 13609 provides, in part:
The regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. In some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
In compliance with the Regulatory Flexibility Act, 5 U.S.C. 60l
NHTSA has examined today's rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule would not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: “When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.” 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
The express preemption provision set forth above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e) Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See
Pursuant to Executive Order 13132 and 12988, NHTSA has considered whether this rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (e.g., the language and structure of the regulatory text) and objectives of today's rule and finds that this rule, like many NHTSA rules, prescribes only a minimum safety standard. As such, NHTSA does not intend that this rule preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by today's rule. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard announced here. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.
NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any
Under the procedures established by the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule would not establish any new information collection requirements.
Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Public Law 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” This Final Rule would not adopt or reference any new industry or consensus standards that were not already present in FMVSS No. 108.
With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.
Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this final rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). This final rule would not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually.
Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any rulemaking that: (1) Is determined to be economically significant as defined under E.O. 12866, and is likely to have a significantly adverse effect on the supply of, distribution of, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This rulemaking is not subject to E.O. 13211.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Anyone is able to search the electronic form of all 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 DOT's complete Privacy Act Statement in the
Imports, Motor vehicle safety, Motor vehicles, and Tires.
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as set forth below.
49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50.
S14.4.1.3.2.4 Green. Green is not acceptable if it is less saturated (paler), yellower, or bluer than the limit standards.
S14.4.1.3.2.5 Blue. Blue is not acceptable if it is less saturated (paler), greener, or redder than the limit standards.
S14.4.1.4.2.4 Green. The color of light emitted must fall within the following boundaries:
S14.4.1.4.2.5 Restricted Blue. The color of light emitted must fall within the following boundaries:
S14.4.1.4.2.6 Signal Blue. The color of light emitted must fall within the following boundaries:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is broadening the scope of individuals and entities approved to complete vessel fish hold capacity certifications for vessels issued Tier 1 and 2 limited access Atlantic mackerel permits under the Atlantic
Effective on December 3, 2012.
Copies of supporting documents used by the Mid-Atlantic Fishery Management Council, including the Framework Document, are available from: Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The Framework Document is also accessible via the Internet at
Lindsey Feldman, Fishery Management Specialist, 978-675-2179, fax 978-281-9135.
NMFS published a proposed rule for Framework Adjustment 5 on September 21, 2012 (77 FR 58507). Additional background information and detail on why and how Framework Adjustment 5 was developed are included in the proposed rule, and are not repeated here. Amendment 11 to the MSB FMP (76 FR 68642, November 7, 2011) implemented a three-tiered mackerel limited access program in which all qualifiers were required to have possessed a valid permit on March 21, 2007. The final rule implementing Amendment 11 provided that a fish hold capacity certification must be made by an individual credentialed as a Certified Marine Surveyor with a fishing specialty by the National Association of Marine Surveyors (NAMS), or by an individual credentialed as an Accredited Marine Surveyor with a fishing specialty by the Society of Accredited Marine Surveyors (SAMS). Vessel owners who have received a certification of their vessel's fish hold capacity by the Maine State Sealer of Weights and Measures also meet the fish hold capacity requirement. Vessel owners are required to submit documentation in support of their vessel's certified fish hold capacity to NMFS by December 31, 2012, or their first vessel replacement or upgrade, whichever comes first.
This action revises the fish hold capacity certification requirement to allow additional individuals or entities beyond those with credentials approved in Amendment 11 to complete fish hold capacity certifications. This framework action does not make any changes from the proposed rule and expands the range of individuals and entities that are approved to complete hold capacity certifications and allow them also to be completed by employees or agents of a classification society approved by the Coast Guard pursuant to 46 U.S.C. 3316(c), Maine State Sealer of Weights and Measures, a professionally licensed and/or registered Marine Engineer, or a Naval Architect with a professional engineer license. This action also extends the date that vessels are required to submit fish hold capacity measurements by 1 year. Due to a delay in rulemaking, vessels with mackerel Tier 1 and 2 permits will be required to submit fish hold capacity measurements by December 31, 2013, or their first vessel replacement or upgrade, whichever comes first, instead of December 31, 2012.
NMFS received four comments on the proposed rule for Framework Adjustment 5 from: Lund's Fisheries, Inc., a processing facility in Cape May, NJ; Quest Marine Services, a marine surveying company; a vessel owner with a mackerel permit; and a member of the general public.
The Administrator, Northeast Region, NMFS, determined that this framework adjustment to the Atlantic Mackerel, Squid, and Butterfish FMPs is necessary for the conservation and management of the Atlantic mackerel, butterfish, fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable laws.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received, and no new information has been received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.
The Assistant Administrator for Fisheries finds good cause under section 553(d) of the Administrative Procedure Act to waive the 30-day delay in effectiveness for this action. Due to a delay in rulemaking, this action extends the deadline for Tier 1 and 2 Atlantic mackerel vessels to complete vessel hold capacity measurements from December 31, 2012, to December 31, 2013. If the effectiveness of this rule was delayed for 30-days from the date of publication, vessels issued Tier 1 and 2 mackerel permits would still be required to submit hold capacity measurements by December 31, 2012, therefore invalidating the 1 year extension in this action. Because the majority of Tier 1 and 2 mackerel vessels have been waiting to obtain and submit vessel hold capacity measurements to NMFS until this rulemaking was published in the
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(a) * * *
(5) * * *
(iii) * * *
(H) * * *
(
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain The Boeing Company Model 737-200, -200C, -300, and -400 series airplanes. The existing AD currently requires repetitive inspections to detect cracking of the corners of the door frame and the cross beams of the aft cargo door, and corrective actions if necessary. The existing AD also requires a modification to the aft cargo door, which terminates the repetitive inspections. Since we issued that AD, we have received reports of cracking on doors on airplanes that were not included in the existing AD. This proposed AD would add airplanes to the applicability, add inspections and related investigative and corrective actions, and revise certain inspection types. This proposed AD would also reduce the compliance time, for certain doors, to do a modification of the doors. We are proposing this AD to prevent fatigue cracking of the corners of the door frame and the cross beams of the aft cargo door, which could result in rapid depressurization of the airplane.
We must receive comments on this proposed AD by January 18, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Alan Pohl, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: (425) 917-6450; fax: (425) 917-6590; email:
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
We will post all comments we receive, without change, to
On July 2, 2001, we issued AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), for certain The Boeing Company Model 737-200, -200C, -300, and -400 series airplanes. That AD requires repetitive inspections to detect cracking of the corners of the door frame and the cross beams of the aft cargo door, and corrective actions, if necessary. That AD also requires a modification to the aft cargo door, which terminates the repetitive inspections. That AD resulted from reports of cracking in the forward and aft corner frame of the aft cargo door and in the lower cross beam. We issued that AD to prevent fatigue cracking of the corners of the door frame and the cross beams of the aft cargo door, which could result in rapid depressurization of the airplane.
Since we issued AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), we received reports of cracking on doors on airplanes that were not included in the existing AD. Therefore, we have determined that the applicability of AD 2000-06-13 R1 must be expanded to include all The Boeing Company Model 737-200, -200C, -300, -400, and -500 series airplanes in order to adequately address the identified unsafe condition. The existing AD also bases compliance times and repetitive intervals on airplane flight cycles. Since that AD was issued, we have determined that door interchangeability has a significant impact on addressing the unsafe condition. Doors may be rotated from airplane to airplane, and a door may have accumulated considerably more cycles than the
In addition, more work is necessary on airplanes that have not accomplished the repair or preventive modification specified in Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999, or previous issues of that service bulletin. We have also determined that the compliance time to do a modification of those doors should be reduced. We referred to Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999, as the appropriate source of service information for accomplishing the required actions specified in AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001). We have also determined that additional work is necessary on airplanes on which certain repairs and modifications specified in Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999, or previous issues of that service bulletin, have been done.
We reviewed the following service information:
• Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011.
• Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010.
• Boeing Special Attention Service Bulletin 737-52-1154, dated December 17, 2010.
For information on the procedures and compliance times, see this service information at
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain all the requirements of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001). This proposed AD would add airplanes to the applicability. This proposed AD would also require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Information.”
The phrase “related investigative actions” might be used in this proposed AD. “Related investigative actions” are follow-on actions that (1) are related to the primary action, and (2) are actions that further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
In addition, the phrase “corrective actions” might be used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
Since AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
We have revised the retained paragraph (d) of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001) (which corresponds to paragraph (k) of this proposed AD), by removing reference to Boeing 737 Nondestructive Test Manual, Part 6, Chapter 51-00-00 (Figure 4 or Figure 23) for the high frequency eddy current inspection. Instead, we have added Note 1 to paragraph (k) of this proposed AD to specify that guidance on the inspection can be found in Boeing 737 Nondestructive Test Manual, Part 6, Chapter 51-00-00 (Figure 4 or Figure 23).
We have also moved the method of compliance specified in Note 3 of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), into paragraph (m) of this proposed AD.
We have also revised the language for the credit for previous service information specified in Note 4 of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), and included it in paragraph (n) of this proposed AD.
Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010; and Boeing Special Attention Service Bulletin 737 52-1154, dated December 17, 2010; specify to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
Table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010, references an incorrect part number for reinforcement angles. Paragraph (q) of this proposed AD specifies the correct part number.
Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011; and Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010; specify accomplishing supplemental structural inspections. Those inspections are not required by this proposed AD. The damage tolerance inspections specified in those service bulletins may be used in support of compliance with section 121.1109(c)(2) or 129.109(b)(2) of the Federal Aviation Regulations (14 CFR 121.1109(c)(2) or 14 CFR 129.109(b)(2)).
For certain actions, Boeing Alert Service Bulletin 737-52A1079, Revision
We estimate that this proposed AD affects 581 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary related investigative and corrective actions that would be required based on the results of the proposed inspections. We have no way of determining the number of aircraft that might need these actions:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
(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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive (AD) 2000-06-13 R1, Amendment 39-12317
The FAA must receive comments on this AD action by January 18, 2013.
This AD supersedes AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), which revised AD 2000-06-13, Amendment 39-11654 (65 FR 17583, April 4, 2000). AD 2000-06-13 superseded AD 98-25-06, Amendment 39-10931 (63 FR 67769, December 9, 1998).
This AD applies to all The Boeing Company Model 737-200, -200C, -300, -400, and -500 series airplanes, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 52, Doors.
This AD was prompted by reports of cracking in the forward and aft corner frame of the aft cargo door and in the lower cross beam. We are issuing this AD to prevent fatigue cracking of the corners of the door frame and the cross beams of the aft cargo door, which could result in rapid depressurization of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Paragraphs (h), (i), (j), (k), and (l) of this AD are restated from AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001). These paragraphs apply to Model 737-200 and -200C series airplanes, line numbers 6 through 873 inclusive; and Model 737-200, -200C, -300, and -400 series airplanes, line numbers 874 through 1642 inclusive; equipped with an aft cargo door having Boeing part number (P/N) 65-47952-1 or P/N 65-47952-524, excluding airplanes identified in paragraphs (g)(1) and (g)(2) of this AD.
(1) Those airplanes on which that door has been modified as specified in Boeing Service Bulletin 737-52-1079. Or,
(2) Those airplanes on which the door assembly having P/N 65-47952-524 includes four straps (P/Ns 65-47952-139, 65-47952-140, 65-47952-141, and 65-47952-142) and a thicker lower cross beam web (P/N 65-47952-157).
This paragraph restates the actions required by paragraph (a) of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), with revised service information. For airplanes identified in paragraph (g) of this AD: Within 90 days or 700 flight cycles after December 24, 1998 (the effective date of AD 98-25-06, Amendment 39-10931 (63 FR 67769, December 9, 1998)), whichever occurs later, perform an internal detailed visual inspection to detect cracking of the corners of the door frame and the cross beams of the aft cargo door, in accordance with Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996; Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010. Accomplishment of the modification required by paragraph (l) of this AD constitutes terminating action for the repetitive inspection requirements of this paragraph. Doing the inspections required by paragraph (p) or (s) of this AD terminates the inspections required by this paragraph.
(1) If no cracking is detected, accomplish the requirements of either paragraph (h)(1)(i) or (h)(1)(ii) of this AD.
(i) Repeat the internal visual inspection thereafter at intervals not to exceed 4,500 flight cycles. Or
(ii) Prior to further flight, modify the corners of the door frame and the cross beams of the aft cargo door, in accordance with Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996; Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010. Accomplishment of such modification constitutes terminating action for the repetitive inspection requirements of paragraph (h)(1)(i) of this AD.
(2) If any cracking is detected in the upper or lower cross beams, prior to further flight, modify the cracked beam, in accordance with Part I of the Accomplishment Instructions of Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996; Part I of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Part II of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010. Accomplishment of such modification constitutes terminating action for the repetitive inspection requirements of paragraph (h)(1)(i) of this AD for the modified beam.
(3) If any cracking is detected in the forward or aft upper door frame, prior to further flight, repair the frame and modify the corners of the door frame of the aft cargo door, in accordance with Part I of the Accomplishment Instructions of Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996; Part I of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Part II of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010; except as provided by paragraph (i) of this AD. Accomplishment of such modification constitutes terminating action for the repetitive inspection requirements of paragraph (h)(1)(i) of this AD for the upper door frame.
(4) If any cracking is detected in the forward or aft lower door frame, prior to further flight, replace the damaged frame with a new frame, and modify the corners of the door frame of the aft cargo door, in accordance with Part I of the Accomplishment Instructions of Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996; Part I of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Part II of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010. Accomplishment of such modification constitutes terminating action for the repetitive inspection requirements of paragraph (h)(1)(i) of this AD for the lower door frame.
This paragraph restates the requirement of paragraph (b) of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001). For actions required by paragraphs (h) and (l) of this AD: Where Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996; Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010; specifies that certain repairs are to be accomplished in accordance with instructions received from Boeing, this AD requires that, prior to further flight, such repairs be accomplished in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA; or using a method approved in accordance with the procedures specified in paragraph (x) of this AD.
This paragraph restates the corrective action required by paragraph (c) of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), with revised service information. If any cracking of the outer chord of the upper or lower cross beams of the aft cargo door is detected during any inspection required by paragraph (h) of this AD, prior to further flight, accomplish the repair specified in paragraph (j)(1), (j)(2), (j)(3), or (j)(4) of this AD. For a repair method to be approved, as required by paragraphs (j)(1), (j)(3), and (j)(4) of this AD, the approval letter must specifically reference this AD.
(1) Repair in accordance with a method approved by the Manager, Seattle ACO.
(2) Repair in accordance with Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010.
(3) Repair in accordance with data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.
(4) Repair in accordance with a method approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
This paragraph restates the actions required by paragraph (d) of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), with revised service information. For airplanes identified in paragraph (g) of this AD: Within 4,500 flight cycles or 1 year after May 9, 2000 (the effective date of AD 2000-06-13, amendment 39-11654 (65 FR 17583, April 4, 2000), whichever occurs later, perform a high frequency eddy current inspection (HFEC) to detect cracking of the four corners of the door frame of the aft cargo door, using a method approved in accordance with the procedures specified in paragraph (x) of this AD, or in accordance with Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010. Accomplishment of the modification required by paragraph (l) of this AD constitutes terminating action for the repetitive inspection requirements of this paragraph. Doing the inspections required by paragraph (p) or (s) of this AD terminates the inspections required by this paragraph.
Additional guidance for the inspection can be found in Boeing 737 Nondestructive Test Manual, Part 6, Chapter 51-00-00 (Figure 4 or Figure 23).
(1) If no cracking of the corners of the door frame of the aft cargo door is detected, repeat the HFEC inspections thereafter at intervals not to exceed 4,500 flight cycles until accomplishment of the modification specified in paragraph (l) of this AD.
(2) If any cracking of the corners of the door frame of the aft cargo door is detected, prior to further flight, replace the damaged frame with a new frame, and modify the four corners of the door frame, in accordance with Part II and Part III of the Accomplishment Instructions of Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996; Part II and Part III of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Part III and Part IV of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010. Accomplishment of such modification constitutes terminating action for the repetitive inspection requirements of paragraph (k)(1) of this AD for that door frame.
This paragraph restates the action required by paragraph (e) of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001), with revised service information. For airplanes identified in paragraph (g) of this AD: Within 4 years or 12,000 flight cycles after August 15, 2001 (the effective date of AD 2000-06-13 R1), whichever occurs later, modify the four corners of the door frame and the cross beams of the aft cargo door, in accordance with Part II of the Accomplishment Instructions of Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996; Part II of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999; or Part III of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010. Accomplishment of that modification constitutes terminating action for the repetitive inspection requirements of paragraphs (h) and (k) of this AD.
This paragraph restates the method of compliance of Note 3 of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001). Accomplishment of the modification required by paragraph (a) of AD 90-06-02, Amendment 39-6489 (55 FR 8372, March 7, 1990), is considered acceptable for compliance with the requirements of paragraph (l) of this AD.
This paragraph restates the credit given for service information specified in Note 4 of AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001). This paragraph provides credit for the modification of the corners of the door frame and the cross beams of the aft cargo door required by paragraph (l) of this AD, if the modification was accomplished prior to August 15, 2001 (the effective date of AD 2000-06-13 R1), using Boeing Service Bulletin 737-52-1079, dated December 16, 1983; Revision 1, dated December 15, 1988; Revision 2, dated July 20, 1989; Revision 3, dated May 17, 1990; or Revision 4, dated February 21, 1991.
At the applicable time specified in Table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011, except as provided by paragraph (u)(1) of this AD: Inspect the door to determine the configuration, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011.
If, during the inspection required by paragraph (o) of this AD, any door is determined to be from any airplane having line numbers 6 through 873 inclusive, and neither the modification nor the repair specified in any service bulletin identified in paragraphs (p)(1) through (p)(7) of this AD has been done as of the effective date of this AD: Do a one-time HFEC and a one-time ultrasonic inspection for cracking of the upper and lower corner frames and the upper and lower cross beams, and do all applicable related investigative and corrective actions, in accordance with Parts II, III, IV, and VI of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010; and, as applicable, the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-52-1154, dated December 17, 2010, as revised by Boeing Special Attention Service Bulletin 737-52-1154, Revision 1, dated August 3, 2011; except as provided by paragraphs (u)(2) and (u)(3) of this AD. Do the inspections at the applicable time specified in Table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010; except as provided by paragraph (u)(4) of this AD. Do all applicable related investigative and corrective actions before further flight. If no cracking is found during the initial inspections, before further flight, do the modification in accordance with Part III of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010. Doing the inspection specified in this paragraph terminates the inspections required by paragraphs (h) and (k) of this AD.
(1) Boeing Service Bulletin 737-52-1079, dated December 16, 1983.
(2) Boeing Service Bulletin 737-52-1079, Revision 1, dated December 15, 1988.
(3) Boeing Service Bulletin 737-52-1079, Revision 2, dated July 20, 1989.
(4) Boeing Service Bulletin 737-52-1079, Revision 3, dated May 17, 1990.
(5) Boeing Service Bulletin 737-52-1079, Revision 4, dated February 21, 1991.
(6) Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996.
(7) Boeing Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999.
If, during the inspection required by paragraph (o) of this AD, any door is determined to be from any airplane having line numbers 6 through 873 inclusive: At the applicable time specified in Table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010, except as provided by paragraph (u)(4) of this AD, inspect the lower corner frames to determine if the door has reinforcement angles, P/N 65C25180-9, -43, -10, -11, or -12, that were installed as specified in any service bulletin identified in paragraphs (q)(1) through (q)(5) of this AD. If any affected reinforcement angle is found, do a one-time general visual inspection for edge margin and do a detailed inspection for cracks; in accordance with Part V of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010.
(1) Boeing Service Bulletin 737-52-1079, dated December 16, 1983.
(2) Boeing Service Bulletin 737-52-1079, Revision 1, dated December 15, 1988.
(3) Boeing Service Bulletin 737-52-1079, Revision 2, dated July 20, 1989.
(4) Boeing Service Bulletin 737-52-1079, Revision 3, dated May 17, 1990.
(5) Boeing Service Bulletin 737-52-1079, Revision 4, dated February 21, 1991.
If, during any inspection required by paragraph (q) of this AD, any crack is found, or if any edge margin does not meet the specification identified in Part V of the Accomplishment Instructions of Boeing Alert
(1) Replace the corner reinforcement angle, in accordance with Part III of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010.
(2) Do a one-time detailed inspection or HFEC inspection for cracking at the forward and aft ends of cross beam D, in accordance with Part 1 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-52-1154, dated December 17, 2010. If any cracking is found, before further flight, do all applicable repairs in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-52-1154, dated December 17, 2010, except as provided by paragraph (u)(2) of this AD.
(3) Do a one-time detailed inspection or ultrasonic inspection for cracking on the frames, in accordance with Part 2 (detailed inspection) or Part 8 (ultrasonic inspection) of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-52-1154, dated December 17, 2010, as revised by Boeing Special Attention Service Bulletin 737-52-1154, Revision 1, dated August 3, 2011. If any cracking is found, before further flight, replace the frame in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010.
If, during the action required by paragraph (o) of this AD, a door is determined to be from an airplane having line numbers 874 and subsequent: At the applicable time specified in Tables 1 and 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011, except as provided by paragraph (u)(1) of this AD, do high frequency and detailed inspections for cracks in the forward and aft ends of cross beam E, and do all applicable related investigative and corrective actions, in accordance with Parts 1, 3, 4, 5, and 6 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011; and, as applicable, the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-52-1154, dated December 17, 2010, as revised by Boeing Special Attention Service Bulletin 737-52-1154, Revision 1, dated August 3, 2011; except as provided by paragraph (u)(2) of this AD. Do all applicable related investigative and corrective actions at the applicable time specified in Tables 1 and 2 of paragraph 1.E., “Compliance,” of Boeing Service Bulletin 737-52A1153, dated July 13, 2011, except as provided by paragraph (u)(1) of this AD. If no cracking is found during the inspections specified in Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011, at the applicable time specified in Tables 1 and 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011, except as provided by paragraph (u)(1) of this AD, do the modification in accordance with Parts 5 and 6, as applicable, of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011. Repeat the inspections thereafter at the times specified in Tables 1 and 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011, until the preventative modification or repair is done to both ends of cross beam E in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011. Doing the inspection specified in this paragraph terminates the inspections required by paragraphs (h) and (k) of this AD.
If, during the actions required by paragraph (o) of this AD, a door is determined to be from an airplane having line numbers 874 and subsequent: At the applicable time specified in Tables 3 and 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011, except as provided by paragraph (u)(1) of this AD, do a one-time ultrasonic inspection of the frame and a detailed inspection of the reinforcing angle for cracks of the forward and aft ends of cross beam E, and do all applicable related investigative and corrective actions, in accordance with Parts 1, 3, 4, 7, and 8 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011; and, as applicable; the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-52-1154, dated December 17, 2010, as revised by Boeing Special Attention Service Bulletin 737-52-1154, Revision 1, dated August 3, 2011; except as provided by paragraph (u)(2) of this AD. Do all applicable related investigative and corrective actions before further flight.
The following exceptions apply to this AD.
(1) Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) Where Boeing Special Attention Service Bulletin 737-52-1154, dated December 17, 2010, specifies to contact Boeing for repair, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (x) of this AD.
(3) Where Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010, specifies to contact Boeing for repair, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (x) of this AD.
(4) Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010, specifies a compliance time “from the date of Revision 7 to this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
The supplemental structural inspections specified in Tables 5 and 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011; and Tables 3 and 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010; are not required by this AD.
The damage tolerance inspections specified in Tables 5 and 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011; and Tables 3 and 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010; may be used in support of compliance with section 121.1109(c)(2) or 129.109(b)(2) of the Federal Aviation Regulations (14 CFR 121.1109(c)(2) or 14 CFR 129.109(b)(2)). The corresponding actions specified in the Accomplishment Instructions and figures of Boeing Alert Service Bulletin 737-52A1153, dated July 13, 2011; and Boeing Alert Service Bulletin 737-52A1079, Revision 7, dated December 17, 2010; are not required by this AD.
This paragraph provides credit for actions required by paragraphs (p), (q), and (r) of this AD, if the actions were accomplished before the effective date of this AD using any service information specified in paragraph (w)(1), (w)(2), (w)(3), (w)(4), (w)(5), (w)(6), or (w)(7) of this AD.
(1) Boeing Service Bulletin 737-52-1079, dated December 16, 1983.
(2) Boeing Service Bulletin 737-52-1079, Revision 1, dated December 15, 1988.
(3) Boeing Service Bulletin 737-52-1079, Revision 2, dated July 20, 1989.
(4) Boeing Service Bulletin 737-52-1079, Revision 3, dated May 17, 1990.
(5) Boeing Service Bulletin 737-52-1079, Revision 4, dated February 21, 1991.
(6) Boeing Service Bulletin 737-52-1079, Revision 5, dated May 16, 1996.
(7) Boeing Alert Service Bulletin 737-52A1079, Revision 6, dated November 18, 1999.
(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes ODA that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously in accordance with AD 2000-06-13, Amendment 39-11654 (65 FR 17583, April 4, 2000); and AD 2000-06-13 R1, Amendment 39-12317 (66 FR 36146, July 11, 2001); are approved as AMOCs for the corresponding requirements of this AD.
(1) For more information about this AD, contact Alan Pohl, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: (425) 917-6450; fax: (425) 917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede an existing airworthiness directive (AD) that applies to certain Bombardier, Inc. Model DHC-8-400 series airplanes. The existing AD currently requires a free-play check for excessive free-play of the shaft swaged bearing installed in the tailstock end of each elevator power control unit (PCU), and replacing any PCU on which the bearing exceeds allowable limits with a serviceable PCU. Since we issued that AD, we have determined that additional airplanes are affected by the identified unsafe condition. This proposed AD would add airplanes to the applicability in the existing AD. We are proposing this AD to detect and correct excessive freeplay of the swaged bearings, which could lead to excessive airframe vibrations and difficulties in pitch control, and consequent loss of controllability of the airplane.
We must receive comments on this proposed AD by January 18, 2013.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
You may examine the AD docket on the Internet at
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7318; fax (516) 794-5531.
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
We will post all comments we receive, without change, to
On June 14, 2011, we issued AD 2011-13-08, Amendment 39-16731 (76 FR 37253, June 27, 2011). That AD required actions intended to address an unsafe condition on Bombardier, Inc. Model DHC-8-400 series airplanes.
Since we issued the existing AD (76 FR 37253, June 27, 2011), we have determined that additional airplanes are affected by the identified unsafe condition. Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2010-28R1, dated June 12, 2012 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Several reports have been received on the elevator power control units (PCUs) where the shaft (tailstock) swaged bearing liners had shown a higher than normal rate of wear. Investigation revealed that the excessive wear was due to the paint contamination between the bearing roller and bearing liner. The bearing paint contamination is known to be abrasive and could seize the bearing.
This condition, if not corrected, could lead to excessive airframe vibrations and difficulties in aircraft pitch control.
This [TCCA] directive mandates a free-play check of the shaft swaged bearing installed in the elevator PCU tailstock end and replacement of the shaft swaged bearings if excessive free-play is found.
This [TCCA] AD is revised to amend the applicability for DHC-8 Series 400 aeroplanes.
The unsafe condition is loss of controllability of the airplane. You may obtain further information by examining the MCAI in the AD docket.
Bombardier Inc. has issued Service Bulletin 84-27-52, Revision A, dated March 5, 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 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 81 products of U.S. registry.
The actions that are required by AD 2011-13-08, Amendment 39-16731 (76 FR 37253, June 27, 2011), and retained in this proposed AD take about 3 work-hours per product, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required actions is $255 per product.
We estimate that it would take about 3 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators for the added airplanes to be $255 per product.
In addition, we estimate that any necessary follow-on actions would take about 5 work-hours and require parts costing $33, for a cost of $458 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing airworthiness directive AD 2011-13-08, Amendment 39-16731 (76 FR 37253, June 27, 2011), and adding the following new AD:
We must receive comments by January 18, 2013.
This AD supersedes AD 2011-13-08, Amendment 39-16731 (76 FR 37253, June 27, 2011).
This AD applies to Bombardier, Inc. Model DHC-8-400, -401, and -402 airplanes; certificated in any category; having serial numbers (S/Ns) 4001 through 4334 inclusive, and 4336.
Air Transport Association (ATA) of America Code 27: Flight controls.
This AD was prompted by reports of replacement of several elevator power control units (PCUs) due to worn swaged bearings located in the elevator PCU tailstock. We are issuing this AD to detect and correct excessive freeplay of the swaged bearings, which could lead to excessive airframe vibrations and difficulties in pitch control, and consequent loss of controllability of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
This paragraph restates the requirements of paragraph (g) of AD 2011-13-08, Amendment 39-16731 (76 FR 37253, June 27, 2011), with revised service information. For airplanes identified in paragraph (c) of this AD, except airplanes having S/N 4305 through 4334 inclusive, and 4336: At the applicable time specified in paragraphs (g)(1) and (g)(2) of this AD, perform a free-play check for any shaft swaged bearing having part number (P/N) MS14103-7 that is installed in the tailstock end of each elevator PCU (three PCUs per elevator surface) having P/Ns 390600-1007 and 390600-1009, in accordance with paragraph 3.B., Part A, of Bombardier Service Bulletin 84-27-52, dated May 25, 2010; or Revision A, dated March 5, 2012. As of the effective date of this AD, only Bombardier Service Bulletin 84-27-52, Revision A, dated March 5, 2012, may be used to accomplish the actions required by this paragraph.
(1) For airplanes that have accumulated 8,000 or more total flight hours as of August 1, 2011 (the effective date of AD 2011-13-08, Amendment 39-16731 (76 FR 37253, June 27, 2011)): Within 2,000 flight hours after August 1, 2011 (the effective date of AD 2011-13-08).
(2) For airplanes that have accumulated less than 8,000 total flight hours as of August 1, 2011 (the effective date of AD 2011-13-08, Amendment 39-16731 (76 FR 37253, June 27, 2011)): Within 6,000 flight hours after August 1, 2011 (the effective date of AD 2011-13-08), or before the accumulation of 10,000 total flight hours, whichever occurs first.
This paragraph restates the requirements of paragraph (h) of AD 2011-13-08, Amendment 39-16731 (76 FR 37253, June 27, 2011), with revised service information. If, during the check required by paragraph (g) of this AD, the bearing free-play is within the limits specified in Bombardier Service Bulletin 84-27-52, dated May 25, 2010, or Revision A, dated March 5, 2012; no further action is required by this AD. As of the effective date of this AD, only Bombardier Service Bulletin 84-27-52, Revision A, dated March 5, 2012, may be used to accomplish the actions required by this paragraph.
This paragraph restates the requirements of paragraph (i) of AD 2011-13-08, Amendment 39-16731 (76 FR 37253, June 27, 2011), with revised service information. If, during the check required by paragraph (g) of this AD, the bearing free-play exceeds the limits specified in Bombardier Service Bulletin 84-27-52, dated May 25, 2010; or Revision A, dated March 5, 2012: Before further flight, replace the elevator PCU with a serviceable one, in accordance with paragraph 3.B., Part B, of Bombardier Service Bulletin 84-27-52, dated May 25, 2010; or Revision A, dated March 5, 2012. As of the effective date of this AD, only Bombardier Service Bulletin 84-27-52, Revision A, dated March 5, 2012, may be used to accomplish the actions required by this paragraph.
For airplanes having S/N 4305 through 4334 inclusive, and 4336: At the applicable time specified in paragraphs (j)(1) and (j)(2) of this AD, perform a free-play check for any shaft swaged bearing having P/N MS14103-7 that is installed in the tailstock end of each elevator PCU (three PCUs per elevator surface), having P/Ns 390600-1007 and 390600-1009, in accordance with paragraph 3.B., Part A, of Bombardier Service Bulletin 84-27-52, Revision A, dated March 5, 2012.
(1) For airplanes that have accumulated 8,000 or more total flight hours as of the effective date of this AD: Within 2,000 flight hours after the effective date of this AD.
(2) For airplanes that have accumulated less than 8,000 total flight hours as of the effective date of this AD: Within 6,000 flight hours after the effective date of this AD, or before the accumulation of 10,000 total flight hours, whichever occurs first.
During the check required by paragraph (j) of this AD, if the bearing free-play is found to exceed the limits specified in Bombardier Service Bulletin 84-27-52, Revision A, dated March 5, 2012: Before further flight, replace the elevator PCU with a serviceable one, in accordance with paragraph 3.B., Part B, of Bombardier Service Bulletin 84-27-52, Revision A, dated March 5, 2012.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2010-28R1, dated June 12, 2012, and the service information specified in paragraphs (l)(1)(i) and (l)(1)(ii) of this AD, for related information.
(i) Bombardier Service Bulletin 84-27-52, dated May 25, 2010.
(ii) Bombardier Service Bulletin 87-27-52, Revision A, dated March 5, 2012.
(2) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 777-200 and -300 series airplanes. This proposed AD was prompted by reports of hydraulic fluid contamination found in the strut forward dry bay. This proposed AD would require repetitive general visual inspections of the strut forward dry bay for the presence of hydraulic fluid, and related investigative and corrective actions if necessary. We are proposing this AD to detect and correct hydraulic fluid contamination of the strut forward dry bay, which could result in hydrogen embrittlement of the titanium forward engine mount bulkhead fittings, and consequent inability of the fittings to carry engine loads, resulting in the loss or departure of an engine. Hydraulic embrittlement could cause a through-crack formation across the fittings through which an engine fire could breach into the strut, resulting in an uncontained strut fire.
We must receive comments on this proposed AD by January 18, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1;
You may examine the AD docket on the Internet at
Kevin Nguyen, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6501; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received reports of hydraulic fluid contamination in the strut forward dry bay caused by the clogged and blocked forward strut drain lines not allowing fluids (water, fuel, engine oil and hydraulic) to drain properly, resulting in fluids backing up to the dry bay. The presence of hydraulic fluid and temperatures above 270 degrees Fahrenheit can cause hydrogen embrittlement of the titanium forward engine mount bulkhead fittings. This condition, if not corrected, could result in the inability of the forward engine mount bulkhead fittings to carry engine loads, resulting in the loss or departure of an engine; or cause a through-crack formation across the fittings through which an engine fire could breach into the strut, resulting in an uncontained strut fire.
We reviewed Boeing Special Attention Service Bulletin 777-54-0028, dated May 25, 2012. The service information describes procedures for repetitive general visual inspections for hydraulic fluid contamination of the strut forward dry bay, and related investigative and corrective actions if necessary. Related investigative actions include a detailed inspection for hydraulic fluid coking, heat discoloration, damage to sealant and primer, damage to leveling compound, cracking, and etching or pitting of the interior strut forward dry bay; a detailed and high frequency eddy current (HFEC) inspection for cracking, etching, or pitting of the bulkhead upper and lower fittings of the strut forward engine mount; and checking drain lines for blockage. Corrective actions include cleaning and restoring sealant, primer, and leveling compound of the detail parts in the strut forward dry bay; cleaning or replacing drain lines; and contacting the manufacturer for repair instructions and doing the repair.
The compliance time for the initial inspection is within 600 flight cycles or 12 months, whichever occurs first. The compliance times for the related investigative actions are before further flight. The compliance times for corrective actions vary between before further flight, and within 25 flight cycles or 10 days, whichever occurs first (depending on the condition). The repetitive inspection intervals do not exceed 1,200 flight cycles.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Information.”
Although the service bulletin specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions using a method approved by the FAA.
We estimate that this proposed AD affects 55 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any actions that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these actions.
We have received no definitive data that would enable us to provide a cost estimate for the on-condition repair specified in this proposed AD.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
We must receive comments by January 18, 2013.
None.
This AD applies to The Boeing Company Model 777-200 and -300 series airplanes; certificated in any category; equipped with Pratt & Whitney 4000 engines; as identified in Boeing Special Attention Service Bulletin 777-54-0028, dated May 25, 2012.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 54, Nacelles/pylons.
This AD was prompted by reports of hydraulic fluid contamination found in the strut forward dry bay. We are issuing this AD to detect and correct hydraulic fluid contamination of the strut forward dry bay, which could result in hydrogen embrittlement of the titanium forward engine mount bulkhead fittings, and consequent inability of the fittings to carry engine loads, resulting in the loss or departure of an engine. Hydraulic embrittlement could cause a through-crack formation across the fittings through which an engine fire could breach into the strut, resulting in an uncontained strut fire.
Comply with this AD within the compliance times specified, unless already done.
Except as provided by paragraph (h)(1) of this AD, at the times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-54-0028, dated May 25, 2012: Do a general visual inspection for hydraulic fluid contamination of the interior of the strut forward dry bay, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-54-0028, dated May 25, 2012, except as required by paragraph (h)(2) of this AD. Repeat the inspection thereafter at the times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-54-0028, dated May 25, 2012. Except as required by paragraph (h)(3) of this AD, do all applicable related investigative and corrective actions at the times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-54-0028, dated May 25, 2012.
(1) Where the Compliance time column of paragraph 1.E., “Compliance,” of Boeing Service Bulletin 777-54-0028, dated May 25, 2012, refers to the compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) Where Boeing Special Attention Service Bulletin 777-54-0028, dated May 25, 2012, specifies to contact Boeing for repair: Except as required by paragraph (h)(3) of this AD, at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777-54-0028, dated May 25, 2012, repair, in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(3) Where paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Kevin Nguyen, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6501; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of meetings.
This notice announces three fact-finding informal airspace meetings to solicit information from airspace users and others, concerning a proposal to revise the Class B airspace at Miami, FL, and the Class C airspace at Ft Lauderdale, FL. The purpose of these meetings is to provide interested parties an opportunity to present views, recommendations, and comments on the proposal. All comments received will be considered prior to any issuance of a notice of proposed rulemaking.
The informal airspace meetings will be held on Monday, January 28, 2013; Tuesday, January 29, 2013; and Wednesday, January 30, 2013. One meeting session will be held on January 28, beginning at 6:00 p.m. Two sessions will be held on January 29 and January 30, beginning at 2:00 p.m. and 6:00 p.m. Comments must be received on or before March 4, 2013.
(1) The meeting on Monday, January 28, 2013, will be held at the Wings Over Miami Air Museum, Kendall-Tamiami Executive Airport, 14710 SW 128th St., Miami, FL 33196 [Call 305-233-5197 for directions]; (2) The meeting on Tuesday, January 29, 2013, will be held at the Miami Dade College, 2460 NW 66th Avenue, Bldg. 701, Room 213, Miami, FL 33122 [Call 305-588-1959 for directions]; and (3) The meeting on Wednesday, January 30, 2013, will be held at the Miramar Town Center, 2050 Civic Center Place. Miramar, FL 33025 [Call 954-201-8084 for directions].
Tony Russo, Support Manager, Miami ATCT/TRACON, 6400 NW. 22nd St., Miami, FL 33122; Telephone: 305-869-5403.
(a) The meetings will be open to all persons on a space-available basis. There will be no admission fee or other charge to attend and participate.
(b) The meetings will be informal in nature and will be conducted by one or more representatives of the FAA Eastern Service Area. Each participant will be given an opportunity to make a presentation, although a time limit may be imposed. Each person wishing to make a presentation to the FAA panel will be asked to sign in so those time frames can be established. The meetings may be adjourned at any time if all persons present have had an opportunity to speak.
(c) Position papers or other handout material relating to the substance of these meetings will be accepted. Participants submitting handout materials should present an original and two copies to the presiding officer. There should be an adequate number of copies for distribution to all participants.
(e) These meetings will not be formally recorded. However, a summary of comments made at the meetings will be filed in the docket.
Information gathered through these meetings will assist the FAA in drafting a Notice of Proposed Rulemaking (NPRM). The public will be afforded the opportunity to comment on any NPRM published on this matter.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to amend and harmonize minimum altitudes for use of autopilots for transport category airplanes. The proposed rule would enable the operational use of advanced autopilot and navigation systems by incorporating the capabilities of new and future autopilots, flight guidance systems, and Global Navigation Satellite System (GNSS) guidance systems while protecting the continued use of legacy systems at current autopilot minimum use altitudes. The proposed rule would accomplish this through a performance-based approach, using the certified capabilities of autopilot systems as established by the Airplane Flight Manual (AFM) or as approved by the Administrator.
Send comments on or before February 4, 2013.
Send comments identified by docket number Docket No.: FAA-2012-1059 using any of the following methods:
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•
•
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For technical questions concerning this action, contact Kel O. Christianson, FAA, Aviation Safety Inspector, Performance Based Flight Systems Branch (AFS-470), Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone 202-385-4702; email
For legal questions concerning this action, contact Robert H. Frenzel, Manager, Operations Law Branch, Office of the Chief Counsel, Regulations Division (AGC-220), Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone 202-267-3073; email
The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. This rulemaking is promulgated under the authority described in 49 U.S.C. 44701(a)(5), which requires the Administrator to promulgate regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security. This amendment to the regulation is within the scope of that authority because it prescribes an accepted method for ensuring the safe operation of aircraft while using autopilot systems.
The FAA proposes to amend and harmonize minimum altitudes for use of autopilots for transport category airplanes in order to streamline and simplify these operational rules. The proposed rule would enable the operational use of advanced autopilot and navigation systems by incorporating the capabilities of new and future autopilots, flight guidance systems, and Global Navigation Satellite System (GNSS) guidance systems while protecting the continued use of legacy systems. This would allow the FAA to enable the benefits of Next Generation Air Transportation System (NextGen) technologies and procedures (Optimized Profile Descents, Performance Based Navigation (PBN)) to enhance aviation safety in the National Airspace System (NAS). The rule would accomplish this through a performance-based approach, using the certified capabilities of autopilot systems as established by the Airplane Flight Manual (AFM). The proposal would also give the FAA Administrator the authorization to require an altitude higher than the AFM if the Administrator believes it to be in the interest of public safety.
Currently, operators have a choice whether or not to update their aircraft with new autopilots as they are developed and certified by equipment manufacturers. This rule would not affect that decision-making process and would protect operators who choose to continue to operate as they do today. As a result, the proposed rule would not impose any additional costs on certificate holders that operate under parts 121, 125, or 135. Also, by setting new minimum altitudes for each phase of flight that certified equipment may operate to, the proposed rule would give manufacturers more certainty that new products could be used as they are developed.
In response to Executive Order 13563 issued by President Obama on January 18, 2011, the proposed rule was first identified for inclusion in the Department of Transportation Retrospective Regulatory Review (May 2011), noting that the current minimum altitudes for use of autopilots were unduly restrictive and would limit the ability to use new technologies. On May 10, 2012, President Obama signed Executive Order 13610, establishing the Retrospective Regulatory Review as an on-going obligation. The proposed rule would also be consistent with the requirement in Executive Order 13610 to modify or streamline regulations “in light of changed circumstances, including the rise of new technologies.”
The FAA and Civil Aviation Authority (CAA) technical standards for autopilot systems date back to 1947. These standards have been revised eight times since 1959, but the operating rules for autopilot minimum use altitudes in 14 CFR 121.579, 125.329, and 135.93 have not been amended in any significant way since the recodification of the Civil Aviation Regulations (CAR) and Civil Aviation Manuals (CAM) on December 31, 1964.
By contrast, autopilot certification standards contained in § 25.1329 were updated as recently as April 11, 2006. Consequently, operational regulations in parts 121, 125, and 135 do not adequately reflect the capabilities of modern technologies in use today and thus make it difficult to keep pace with the FAA's implementation of NextGen.
The FAA published an NPRM in the
In 1997, the FAA amended 14 CFR 121.579, 125.329, and 135.93 to permit certificate holders the use of an approved autopilot system for takeoff, based on the 1994 NPRM and an expectation that autopilot technology would continue to advance (62 FR 27922; May 21, 1997). This authorization was given to certificate holders through an Operations Specification (OpSpec), which was implemented as a stopgap measure. The rule itself was not changed to provide manufacturers and operators the guidance for producing and operating new aircraft capable of attaining lower autopilot minimum use altitudes. The amendment also failed to address autopilot minimum use altitudes on instrument approaches or harmonize 14 CFR parts 121, 125 and 135.
Since 1997, multiple groups have been formed to review current regulations and autopilot technologies. The FAA Transport Airplane Directorate initiated an effort under the ARAC Flight Guidance Harmonization Working Group to evaluate the status of current autopilot technologies, rules and guidance along with the harmonization of U.S. policy and guidance with the Joint Aviation Authorities. Later, the Performance-based operations Aviation Rulemaking Committee, which established the Autopilot Minimum Use Height (MUH) action team, evaluated autopilot minimum use altitudes and made recommendations to the Associate Administrator for Aviation Safety. The team was specifically tasked with developing recommendations to address progress in the area of PBN and the subsets of area navigation (RNAV) and required navigation performance (RNP) operations. The team's conclusions aligned with the previous groups' acknowledgement that 14 CFR 121.579, 125.329 and 135.93 were outdated and recommended new rulemaking to take advantage of advancements in modern aircraft technologies and the certified capabilities of autopilot systems to create a performance-based structure to aid in the implementation of NextGen flight operations.
The FAA proposes a complete rewrite of 14 CFR 121.579, 125.329 and 135.93. The language in each section of the proposed regulations would be identical except for an additional paragraph in § 135.93 exempting rotorcraft. The proposed rule would harmonize these three parts of 14 CFR because the rule would be based on the performance capabilities of the equipment being utilized, not the operating certificate held. Nothing in the proposed rule would prevent or adversely affect the continued safe operation of aircraft using legacy navigation systems.
The proposed rule would align the autopilot operational rules with the new autopilot certification standards contained in § 25.1329, updated and effective April 11, 2006. The proposed rule would also be proactive by allowing for future technological advances within the scope of the rule, thus facilitating the implementation of NextGen into the National Airspace System.
In effect, the proposed rule would accommodate future technological changes by setting safe minimum altitudes in each phase of flight that certified autopilots could operate to. Once a new piece of equipment or system is certified and the new limitations incorporated in the AFM, as required in §§ 21.5, 25.1501 and 25.1581, a certificate holder might then make use of the new capabilities when authorized through OpSpecs. This change would enable new autopilots to utilize both current and future navigational systems. The current rule only references ground-based instrument approach facilities and Instrument Landing Systems (ILS).
Sections 121.579(a), 125.329(a), and 135.93(a) of the proposed rule would define altitude references for the different phases of flight, unlike the current rule which defines all altitudes with reference to terrain. All altitudes referring to takeoff, initial climb and go around/missed approach would be defined as being above airport elevation. All altitudes referring to enroute flight would be defined as being above terrain elevation. All altitudes referring to approach would be defined as being above Touchdown Zone Elevation (TDZE), except if the altitude is in reference to a Decision Altitude/Height (DA(H)) or Minimum Descent Altitude (MDA) in which case the altitude would be defined in relation to the DA(H) or MDA itself (
As a result, the proposed rule would allow operators to add the applicable altitudes or heights published in the AFM to the airport and TDZE published on the instrument approach plate. This also would provide a standard reference for all operators and manufacturers using and producing Flight Management Systems (FMS).
The proposed rule would be formatted to model the actual phases of flight: Takeoff through landing or go-around. Each paragraph in the proposed rule would have a base minimum autopilot use altitude for the intended phase of flight that all aircraft may utilize. In order to protect the use of all legacy systems, the proposed base altitudes would remain identical to the altitudes in the current rule. Lower minimum use altitudes would be based on certification of the autopilot system and limitations found in the AFM. The
The current rule defines the base minimum altitude at which all aircraft may engage the autopilot after takeoff as 500 ft. or double the autopilot altitude loss (as specified in the AFM) above the terrain, whichever is higher. The current rule also gives the Administrator the authority to use OpSpecs to authorize a lower minimum engagement altitude on takeoff, which must be specified in the AFM. This takeoff paragraph was added as an amendment to the original autopilot rule that applied only to enroute operations. Although the amendment provided a vehicle to allow lower autopilot minimum use altitudes through OpSpecs, it did not place the authority for the operations directly in the rule.
The proposed rule would retain the same minimum altitudes for all aircraft to protect legacy systems and would introduce the ability to use lower engagement altitude on takeoff/initial climb based upon the certified limits of the autopilot as specified in the AFM. The proposed rule would also give the Administrator the authority to specify an altitude above, but not below, that specified in the AFM.
As a result, the proposed rule would establish the AFM as a performance-based standard by which a certificate holder might be authorized for operations through its OpSpecs. Once an autopilot's capabilities and limitations are certified and reflected in the AFM, a certificate holder might request a change to its OpSpecs to authorize use of the new minimum use altitude specified in the AFM.
The enroute paragraph of the current rule specifies a minimum use altitude of 500 ft. above terrain, or an altitude that is no lower than twice the autopilot altitude loss specified in the AFM, whichever is higher, for all operations. The proposed rule would maintain the same base minimum use altitude as the current rule. The proposed rule would also grant the Administrator the authority to specify a higher altitude.
The base minimum use altitude for an approach for the proposed rule would remain the same as that of the current rule. No person may use an autopilot at an altitude lower than 50 ft. below the DA (H) or MDA of the instrument approach being flown. The current rule allows for exceptions to this altitude with the use of a coupled autopilot, instrument landing system (ILS), and in specified reported weather conditions. The proposed rule would maintain the limitation that no person may use an autopilot at an altitude lower than 50 ft. below the DA(H) or MDA of the approach being flown and provides weather criteria that would allow current aircraft to meet the same autopilot minimum use altitudes as today.
However, the proposed rule would enable properly equipped aircraft to use the autopilot with other certified navigation systems in certain specified weather conditions to attain the same minimum use altitudes currently allowed with the coupled ILS. These aircraft must be capable of flying a coupled approach with both vertical and lateral path references being provided to the autopilot for guidance. A typical vertical path reference is a flight path angle provided by the signal of an ILS, microwave landing system, GNSS landing system or a navigation flight path provided for RNAV operations by an onboard database. This change would allow a greater number of aircraft to safely use their autopilots to lower minimum use altitudes.
The remaining provisions in the approach paragraph would provide minimum use altitudes dependent on the type of autopilot certification found in the AFM. The potential lowest minimum use altitude allowed by the proposed rule would be 50 ft. above the elevation TDZE. The advantage of this provision, for example, is that it would allow operators to keep the autopilot engaged until over the runway during complex PBN approaches. This would enable a stable approach path in both Instrument Meteorological Conditions (IMC) and Visual Meteorological Conditions (VMC). In IMC, it would alleviate the transition from the autopilot to instrument hand flying during a critical segment of the approach. This would reduce the possibility of disorientation and a destabilized approach. In VMC, the same stabilized approach could be maintained while flightcrews monitor aircraft performance and watch for potential traffic conflicts. Currently, pilots must perform these tasks while disconnecting the autopilot half way through a descending final turn and continuing the approach manually. Although not being utilized, current technology exists to allow aircraft autopilot systems to remain engaged below the current allowable altitude using multiple forms of navigation. Such technology will eventually become a requirement for the implementation of NextGen. The proposed rule would provide a regulatory vehicle to meet this vision.
The proposed rule would also provide guidance for executing a missed approach/go-around that the current rule lacks. This guidance is first presented in the approach paragraph, wherein an aircraft does not need to comply with the autopilot minimum use altitude of that paragraph provided it is executing a coupled missed approach/go-around. A new subparagraph is also included to provide guidance on when the autopilot could be engaged on the missed approach/go-around, if a manual missed approach/go-around is accomplished.
The last paragraph proposed in the new rule would provide guidance for landing. Current language authorizes the Administrator, through OpSpecs, to allow an aircraft to touchdown with the autopilot engaged using an approved autoland flight guidance system. This authorization relies upon an ILS to meet this requirement. The proposed rule would state that minimum use altitudes do not apply to autopilot operations when an approved and authorized landing system mode is being used for landing. The difference in the two rules is that the proposed rule would stand alone and would not limit approved landing systems to be ground based systems, as the current rule does. The proposed rule would also allow new performance based landing systems to be approved and implemented for autoland operations as they become available.
The current rule expressly excludes rotorcraft operations from the minimum altitudes for use of autopilots. The proposed rule would continue to exclude rotorcraft operations.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Public Law 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Public Law 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this proposed rule. The reasoning for this determination follows:
The rule would incorporate the capabilities of current autopilots and would allow operators to more readily utilize the capabilities of future autopilots, flight guidance systems, and GNSS guidance systems as they are developed. These new capabilities would enable and accelerate the benefits of NextGen technologies and procedures that depend upon flight guidance systems to enhance aviation safety in the NAS.
The proposed rule would specify autopilot minimum use altitudes for parts 121, 125 and 135 operators. The rule would be based on the capabilities of the aircraft and the minimum use altitudes or lack of minimum use altitudes published in the Airplane Flight Manual (AFM). The proposed rule would not affect the minimum use altitudes presently used by operators in the National Airspace System. Operators would have the option to operate as they currently do or pursue the proposed lower minimum use altitudes based on their aircraft certification. Operators with aircraft that are certified and wishing to immediately achieve the proposed lower minimum use altitudes might incur the cost of accelerated training. This accelerated training cost is a change in present value, but not in total cost, because this type of training would have occurred in the future. Additionally, operators would not incur certification costs for aircraft, avionics equipment, autopilot and flight management systems that have already been certificated. Also, by setting new minimum altitudes for each phase of flight that certified equipment might operate to, the proposed rule would give manufacturers more certainty that new products can be used as they are developed. The FAA recognizes some older airplanes are not certificated to utilize the lower proposed minimum use altitudes. The FAA believes these operators would not incur these costs because they would not seek to modify their aircraft in order to be certified for the lower minimum use altitudes. The FAA seeks public comments regarding these findings and requests that all comments be accompanied with detailed supporting data.
The FAA has, therefore, determined that this proposed rule would not qualify as a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.
The Regulatory Flexibility Act of 1980 (Public Law 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
This proposed rule would not impose any additional costs on operators that operate under parts 121, 125, or 135. Consequently, the FAA certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Public Law 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this proposed rule and determined that it would have only a domestic impact and therefore no effect on international trade.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances.
The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document.
The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Air Carriers, Aircraft, Airmen, Aviation Safety, Charter Flights, Safety, Transportation.
Aircraft, Airmen, Aviation Safety.
Air taxis, Aircraft, Airmen, Aviation Safety.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:
1. The authority citation for part 121 continues to read as follows:
49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 46105.
2. Revise § 121.579 to read as follows:
(a)
(1) Altitudes for takeoff/initial climb and go-around/missed approach are defined as above the airport elevation.
(2) Altitudes for enroute operations are defined as above terrain elevation.
(3) Altitudes for approach are defined as above the touchdown zone elevation (TDZE) unless the altitude is specifically in reference to DA(H) or MDA in which case the altitude is defined by reference to the DA(H) or MDA itself.
(4) Altitudes specified as above airport elevation, runway TDZE or terrain are considered to be above ground level (AGL).
(b)
No person may use an autopilot for takeoff or initial climb below the higher of 500 feet or an altitude that is no lower than twice the altitude loss specified in the Airplane Flight Manual (AFM), except as follows:
(1) At a minimum engagement altitude specified in the AFM, or
(2) At an altitude specified by the Administrator, whichever is greater.
(c)
No person may use an autopilot enroute, including climb and descent, below the following:
(1) 500 feet,
(2) At an altitude that is no lower than twice the altitude loss specified in the AFM for an autopilot malfunction in cruise conditions, or
(3) At an altitude specified by the Administrator, whichever is greater.
(d)
No person may use an autopilot at an altitude lower than 50 feet below the DA(H) or MDA for the instrument procedure being flown, except as follows:
(1) For autopilots with an AFM specified altitude loss for approach operations, the greater of:
(i) An altitude no lower than twice the specified altitude loss,
(ii) An altitude no lower than 50 feet higher than the altitude loss specified in the AFM when reported weather conditions are less than the basic VFR weather conditions in § 91.155 of this chapter, suitable visual references specified in § 91.175 of this chapter have been established on the instrument approach procedure, and the autopilot is coupled and receiving both lateral and vertical path references,
(iii) An altitude no lower than the higher of the altitude loss specified in the AFM or 50 feet above the TDZE when reported weather conditions are equal to or better than the basic VFR weather conditions in § 91.155 of this chapter, and the autopilot is coupled and receiving both lateral and vertical path references, or
(iv) An altitude specified by the Administrator.
(2) For autopilots with AFM specified approach altitude limitations, the greater of:
(i) The minimum use altitude specified for the coupled approach mode selected,
(ii) 50 feet, or
(iii) An altitude specified by Administrator.
(3) For autopilots with an AFM specified negligible or zero altitude loss for an autopilot approach mode malfunction, the greater of:
(i) 50 feet, or
(ii) An altitude specified by Administrator.
(4) If executing an autopilot coupled go-around or missed approach, using a certificated and functioning autopilot in accordance with paragraph (e) in this section.
(e)
No person may engage an autopilot during a go-around or missed approach below the minimum engagement altitude specified for takeoff and initial climb in paragraph (b) in this section. An autopilot minimum use altitude does not apply to a go-around/missed approach initiated with an engaged autopilot. Performing a go-around or missed approach with an engaged autopilot must not adversely affect safe obstacle clearance.
(f)
Notwithstanding paragraph (d) of this section, autopilot minimum use altitudes do not apply to autopilot operations when an approved automatic landing system mode is being used for landing. Automatic landing systems must be authorized in an operations specification issued to the operator.
3. The authority citation for part 125 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44710-44711, 44713, 44716-44717, 44722.
4. Revise § 125.329 to read as follows:
(a)
(1) Altitudes for takeoff/initial climb and go-around/missed approach are defined as above the airport elevation.
(2) Altitudes for enroute operations are defined as above terrain elevation.
(3) Altitudes for approach are defined as above the touchdown zone elevation (TDZE) unless the altitude is specifically in reference to DA(H) or MDA in which case the altitude is defined by reference to the DA(H) or MDA itself.
(4) Altitudes specified as above airport elevation, runway TDZE or terrain are considered to be above ground level (AGL).
(b)
No person may use an autopilot for takeoff or initial climb below the higher of 500 feet or an altitude that is no lower than twice the altitude loss specified in the Airplane Flight Manual (AFM), except as follows:
(1) At a minimum engagement altitude specified in the AFM, or
(2) At an altitude specified by the Administrator, whichever is greater.
(c)
No person may use an autopilot enroute, including climb and descent, below the following:
(1) 500 feet,
(2) At an altitude that is no lower than twice the altitude loss specified in the AFM for an autopilot malfunction in cruise conditions, or
(3) At an altitude specified by the Administrator, whichever is greater.
(d)
No person may use an autopilot at an altitude lower than 50 feet below the DA(H) or MDA for the instrument procedure being flown, except as follows:
(1) For autopilots with an AFM specified altitude loss for approach operations, the greater of:
(i) An altitude no lower than twice the specified altitude loss,
(ii) An altitude no lower than 50 feet higher than the altitude loss specified in the AFM when reported weather conditions are less than the basic VFR weather conditions in § 91.155 of this chapter, suitable visual references specified in § 91.175 of this chapter have been established on the instrument approach procedure, and the autopilot is coupled and receiving both lateral and vertical path references,
(iii) An altitude no lower than the higher of the altitude loss specified in the AFM or 50 feet above the TDZE when reported weather conditions are equal to or better than the basic VFR weather conditions in § 91.155 of this chapter, and the autopilot is coupled and receiving both lateral and vertical path references, or
(iv) An altitude specified by the Administrator.
(2) For autopilots with AFM specified approach altitude limitations, the greater of:
(i) The minimum use altitude specified for the coupled approach mode selected,
(ii) 50 feet, or
(iii) An altitude specified by Administrator.
(3) For autopilots with an AFM specified negligible or zero altitude loss for an autopilot approach mode malfunction, the greater of:
(i) 50 feet, or
(ii) An altitude specified by Administrator.
(4) If executing an autopilot coupled go-around or missed approach, using a certificated and functioning autopilot in accordance with paragraph (e) in this section.
(e)
No person may engage an autopilot during a go-around or missed approach below the minimum engagement altitude specified for takeoff and initial
(f)
Notwithstanding paragraph (d) of this section, autopilot minimum use altitudes do not apply to autopilot operations when an approved automatic landing system mode is being used for landing. Automatic landing systems must be authorized in an operations specification issued to the operator.
5. The authority citation for part 135 continues to read as follows:
49 U.S.C. 106(g), 41706, 40113, 44701-44702, 44705, 44709, 44711-44713, 44715-44717, 44722, 45101-45105.
6. Revise § 135.93 to read as follows:
(a)
(1) Altitudes for takeoff/initial climb and go-around/missed approach are defined as above the airport elevation.
(2) Altitudes for enroute operations are defined as above terrain elevation.
(3) Altitudes for approach are defined as above the touchdown zone elevation (TDZE) unless the altitude is specifically in reference to DA(H) or MDA in which case the altitude is defined by reference to the DA(H) or MDA itself.
(4) Altitudes specified as above airport elevation, runway TDZE or terrain are considered to be above ground level (AGL).
(b)
No person may use an autopilot for takeoff or initial climb below the higher of 500 feet or an altitude that is no lower than twice the altitude loss specified in the Airplane Flight Manual (AFM), except as follows:
(1) At a minimum engagement altitude specified in the AFM, or
(2) At an altitude specified by the Administrator, whichever is greater.
(c)
No person may use an autopilot enroute, including climb and descent, below the following:
(1) 500 feet,
(2) At an altitude that is no lower than twice the altitude loss specified in the AFM for an autopilot malfunction in cruise conditions, or
(3) At an altitude specified by the Administrator, whichever is greater.
(d)
No person may use an autopilot at an altitude lower than 50 feet below the DA(H) or MDA for the instrument procedure being flown, except as follows:
(1) For autopilots with an AFM specified altitude loss for approach operations, the greater of:
(i) An altitude no lower than twice the specified altitude loss,
(ii) An altitude no lower than 50 feet higher than the altitude loss specified in the AFM when reported weather conditions are less than the basic VFR weather conditions in § 91.155 of this chapter, suitable visual references specified in § 91.175 of this chapter have been established on the instrument approach procedure, and the autopilot is coupled and receiving both lateral and vertical path references,
(iii) An altitude no lower than the higher of the altitude loss specified in the AFM or 50 feet above the TDZE when reported weather conditions are equal to or better than the basic VFR weather conditions in § 91.155 of this chapter, and the autopilot is coupled and receiving both lateral and vertical path references, or
(iv) An altitude specified by the Administrator.
(2) For autopilots with AFM specified approach altitude limitations, the greater of:
(i) The minimum use altitude specified for the coupled approach mode selected,
(ii) 50 feet, or
(iii) An altitude specified by Administrator.
(3) For autopilots with an AFM specified negligible or zero altitude loss for an autopilot approach mode malfunction, the greater of:
(i) 50 feet, or
(ii) An altitude specified by Administrator.
(4) If executing an autopilot coupled go-around or missed approach, using a certificated and functioning autopilot in accordance with paragraph (e) in this section.
(e)
No person may engage an autopilot during a go-around or missed approach below the minimum engagement altitude specified for takeoff and initial climb in paragraph (b) in this section. An autopilot minimum use altitude does not apply to a go-around/missed approach initiated with an engaged autopilot. Performing a go-around or missed approach with an engaged autopilot must not adversely affect safe obstacle clearance.
(f)
Notwithstanding paragraph (d) of this section, autopilot minimum use altitudes do not apply to autopilot operations when an approved automatic landing system mode is being used for landing. Automatic landing systems must be authorized in an operations specification issued to the operator.
(g) This section does not apply to operations conducted in rotorcraft.
Federal Trade Commission.
Request for public comments.
The Federal Trade Commission (“Commission”) requests public comments on the overall costs and benefits of and the continuing need for its Guides for Advertising Allowances and Other Merchandising Payments and Services (“the Fred Meyer Guides” or ”the Guides”), as part of the agency's review of all its current regulations and guides.
Written comments will be accepted until January 29, 2013.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Neil W. Averitt (202) 326-2885, or Julie A. Goshorn (202) 326-3033, Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
The Fred Meyer Guides are intended to help businesses comply with sections 2(d) and 2(e) of the Clayton Act, as amended by the Robinson-Patman Act (“the Act”).
The Commission promulgated the Fred Meyer Guides under sections 5 and 6 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. 45-46, in 1969. Industry guides such as these are administrative interpretations of the law. Therefore, they do not have the force and effect of law and are not independently enforceable. The Guides are intended to reflect and interpret the requirements that courts have imposed upon sellers, in actions brought by private parties as well as by the Government. The Guides were most recently reviewed and amended in 1990.
The Guides contain a total of fifteen sections. The first seven of these consist of definitions and explanations that spell out the general scope of the Robinson-Patman Act and of the Guides themselves. Section 1 describes the purpose of the Guides, and emphasizes that, while they are intended to be consistent with the case law, they do not themselves have the force of law. Section 2 spells out systematically the jurisdictional prerequisites that must be met before 2(d) or 2(e) of the Robinson-Patman Act will apply, including, for example, having a seller of products, engaged in interstate commerce, who either directly or through an intermediary, makes certain payments or provides certain services. Section 3 defines the term “seller” explaining that the term reaches any person making sales for resale, that it includes intermediaries in the distribution chain such as wholesalers and distributors, and includes sales of goods that must be processed before being resold. Section 4 defines the term “customer,” clarifying that the term includes indirect purchasers and the headquarters of group buyers, but not the individual stores in such groups. Section 5 defines “competing customers” to include all businesses that compete in the resale of the seller's products of like grade and quality at the same functional level of distribution (
The next three sections interpret the substantive requirements of the Robinson-Patman Act. Section 8 suggests that sellers should provide their promotional payments and services according to a pre-determined plan, and, if the plan is complex, that they would be well advised to put it in writing. Section 9 interprets the reference to “proportionately equal terms” and notes that no single way of proportionalizing is prescribed by law, but suggests that convenient and acceptable techniques for doing so would include providing benefits on the basis of the dollar volume or the unit quantity of the product purchased during a specified period. Section 10 explains that the seller should take reasonable steps to ensure that the benefits are useable in a practical sense by all competing customers, a principle that may require offering alternative forms of benefits for customers of different sizes or customers that use different sales channels.
The last five sections address a variety of administrative issues and affirmative defenses. Section 11 states that a seller may contract with intermediaries, such as wholesalers, to perform its obligations. Section 12 states that the seller should take “reasonable precautions” to ensure that customers expend the allowance solely for its intended purposes. Section 13 deals with the subject of customer liability, and notes that, although sections 2(d) and 2(e) of the Robinson-Patman Act apply only to sellers, the Commission may proceed under section 5 of the FTC Act against customers who induce sellers to violate the Robinson-Patman Act. Section 14 affirms that a “meeting-competition” defense is available to charges under 2(d) and 2(e), provided that the seller acts in good faith to meet those competing offers. Section 15 notes that it is no defense to a charge that an allowance violates the Act that the payment or service could be justified through savings in the cost of manufacture, sales or delivery (
The Commission periodically reviews all of its rules and guides. These reviews seek information about the costs and benefits of the agency's rules and guides, and their regulatory and economic impact. The information obtained assists the Commission in identifying those rules and guides that warrant modification or rescission. Therefore, the Commission solicits comments on, among other things, the economic impact of and the continuing need for the Fred Meyer Guides; possible developments in the case law that need to be reflected in the Guides; and the effect on the Guides of any technological, economic, or other industry changes.
The Commission solicits written public comments on the following questions:
(1) Is there a continuing need for the Fred Meyer Guides?
(2) Have there been changes in the case law that are not, but should be, reflected in the Guides?
(3) How, if at all, should the Guides be revised to account for new methods of commerce introduced as a result of the growth of the Internet since 1990? In particular, how should the Guides address: (a) Support for Internet or other electronic promotion in various forms, such as pay-per-click, display ads, targeted ads, mobile ads, or other formats; (b) manufacturer support for different pages within a retailer's Web site (
(4) To what extent, if any, should § 240.13(a) of the Guides be revised to reflect cases discussing the possibility that what appears to be a discrimination in promotional allowances may support
(5) What benefits and costs have the Guides had on businesses that grant promotional allowances and services?
(6) What benefits and costs have the Guides had for businesses who receive promotional allowances and services?
(7) What benefits and costs have the Guides had for ultimate consumers?
(8) What changes, if any, should be made to the Guides to increase their benefits to those who use them and to consumers? Are there terms in the statute or concepts in the case law that are not presently addressed in the Guides, and that might benefit from clarification? How would these changes affect the costs that the Guides impose on firms that conform to them?
(9) What changes, if any, should be made to the Guides to reduce the burdens or costs imposed on firms that conform to them? How would these changes affect the benefits provided by the Guides?
(10) Do the Guides overlap or conflict with other federal, state, or local laws or regulations? If so, what changes in the Guides, if any, would be appropriate?
(11) In addition to the issues mentioned in Question (3) above, since the Guides were last amended, what, if any, developments in technology or economic conditions require modification to the Guides? What modifications are required?
(12) What effects, if any, do the Guides have on the costs, profitability, competitiveness and employment of small business entities?
(13) Are there foreign or international laws, regulations, or standards concerning the avoidance of discriminatory allowances and services that the Commission should consider as it reviews the Guides? If so, what are they? (a) Should the Guides be changed to harmonize with these foreign or international laws, regulations, or standards? Why or why not? (b) How would harmonization affect the costs and benefits of the Guides for consumers? (c) How would harmonization affect the costs and benefits of the Guides for businesses, particularly small businesses?
(14) Are there any other problems occurring in the provision of promotional allowances and services covered by the Guides that are not dealt with in the Guides? If so, what mechanisms should be explored to address such problems?
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before January 29, 2013. Write “Fred Meyer Guides Review” on the comment.
Your comment, including your name and your state, will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comments do not include any sensitive personal information, such as a Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually identifiable health information.
In addition, do not include any “[t]rade secret or any commercial or financial information which is * * * privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you must follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comments to be withheld from the public record. Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comment online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Fred Meyer Guides Review” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex B), 600 Pennsylvania Ave. NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
By direction of the Commission.
Securities and Exchange Commission.
Publication of list of rules scheduled for review.
The Securities and Exchange Commission is publishing a list of rules to be reviewed pursuant to Section 610 of the Regulatory Flexibility Act. The list is published to provide the public with notice that these rules are
Comments should be submitted by January 3, 2013.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. All submissions should refer to File No. S7-12-12. This file number should be included on the subject line if email is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
Anne Sullivan, Office of the General Counsel, 202-551-5019.
The Regulatory Flexibility Act (“RFA”), codified at 5 U.S.C. 600-611, requires an agency to review its rules that have a significant economic impact upon a substantial number of small entities within ten years of the publication of such rules as final rules. 5 U.S.C. 610(a). The purpose of the review is “to determine whether such rules should be continued without change, or should be amended or rescinded * * * to minimize any significant economic impact of the rules upon a substantial number of such small entities.” 5 U.S.C. 610(a). The RFA sets forth specific considerations that must be addressed in the review of each rule:
• The continued need for the rule;
• The nature of complaints or comments received concerning the rule from the public;
• The complexity of the rule;
• The extent to which the rule overlaps, duplicates or conflicts with other federal rules, and, to the extent feasible, with state and local governmental rules; and
• The length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. 5 U.S.C. 610(c).
The Securities and Exchange Commission, as a matter of policy, reviews all final rules that it published for notice and comment to assess not only their continued compliance with the RFA, but also to assess generally their continued utility. The list below is therefore broader than that required by the RFA, and may include rules that do not have a significant economic impact on a substantial number of small entities. Where the Commission has previously made a determination of a rule's impact on small businesses, the determination is noted on the list.
The Commission particularly solicits public comment on whether the rules listed below affect small businesses in new or different ways than when they were first adopted. The rules and forms listed below are scheduled for review by staff of the Commission during the next twelve months. The list includes rules from 2001. When the Commission implemented the Act in 1980, it stated that it “intend[ed] to conduct a broader review [than that required by the RFA], with a view to identifying those rules in need of modification or even rescission.” Securities Act Release No. 6302 (Mar. 20, 1981), 46 FR 19251 (Mar. 30, 1981).
15 U.S.C. 80a-6(c), 80a-10(e), 80a-29(e), 80a-30, 80a-37(a).
Rule 10e-1 under the Act suspends temporarily the board composition requirements of the Act and rules thereunder, if a Fund fails to meet those requirements by reason of the death, disqualification, or bona fide resignation of a director. Rule 10e-1 suspends the board composition requirements for 90 days if the board can fill the director vacancy, or 150 days if a shareholder vote is required to fill the vacancy.
Rule 32a-4 under the Act exempts Funds from the Act's requirement that shareholders vote on the selection of the Fund's independent public accountant if the Fund (i) establishes an audit committee composed solely of independent directors that oversees the fund's accounting and auditing processes; (ii) adopts an audit committee charter setting forth the committee's structure, duties, powers, and methods of operation, or sets out similar provisions in the Fund's charter or bylaws; and (iii) maintains a copy of such audit committee charter.
15 U.S.C. 80a-8, 80a-29, 80a-33, 80a-34, and 80a-37.
15 U.S.C. 77b, 15 U.S.C. 77f, 15 U.S.C. 77g, 15 U.S.C. 77h, 15 U.S.C. 77j, 15 U.S.C. 77s, and 15 U.S.C. 77z-3.
15 U.S.C. 78a
15 U.S.C. 80a-1 et seq., 80a-34(d), 80a-37, 80a-39, unless otherwise noted.
15 U.S.C. 78a
15 U.S.C. 78a
15 U.S.C. 78a
15 U.S.C. 77b, 15 U.S.C. 77g, 15 U.S.C. 77j, 15 U.S.C. 77s, and 15 U.S.C. 77z-3.
By the Commission.
Food and Drug Administration, HHS.
Proposed rule.
The Food and Drug Administration (FDA or we) is proposing to revoke the standards of identity for artificially sweetened jelly, preserves, and jams. We are taking this action primarily in response to a citizen petition submitted by the International Jelly and Preserve Association (IJPA). We are taking this action because we tentatively conclude that these standards are both obsolete and unnecessary in light of our regulations for foods named by use of a nutrient content claim and a standardized term. We also tentatively conclude that this action will promote honesty and fair dealing in the interest of consumers.
Submit electronic or written comments on the proposed rule by March 4, 2013.
You may submit comments, identified by Docket No. FDA-1997-P-0007 (formerly Docket No. 1997P-0142), by any of the following methods.
Submit electronic comments in the following way:
•
Submit written submissions in the following ways:
•
•
Daniel Reese, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240-402-2371.
For more than 50 years, FDA has maintained standards of identity for
The Nutrition Labeling and Education Act (NLEA) of 1990 amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to provide for a number of fundamental changes in food labeling, leading to a new regulatory framework for the naming of foods that do not fully comply with the relevant standards of identity. In response to NLEA, FDA established in part 101 (21 CFR part 101), among other things, definitions for specific nutrient content claims using terms such as “free,” “low,” “light” or “lite,” and “less,” and provided for their use in food labeling (58 FR 2302; January 6, 1993). FDA also prescribed at the same time in § 130.10 (21 CFR 130.10) a general definition and standard of identity for foods named by a nutrient content claim defined in part 101, such as “low calorie” or “sugar free,” in conjunction with a traditional standardized food term (58 FR 2431; January 6, 1993). A nutrient content claim applied to the standardized food “grape jelly,” for example, could be “low calorie grape jelly.” Section 130.10(d)(1) allows the addition of safe and suitable ingredients to a food named by use of a nutrient content claim and a standardized term when these ingredients are used to, among other things, add sweetness to ensure that the modified food is not inferior in performance characteristic to the standardized food even if such ingredients are not specifically provided for by the relevant food standard. Thus, under certain circumstances, § 130.10 permits manufacturers to use safe and suitable artificial sweeteners (e.g., aspartame) that are not expressly listed in §§ 150.141 and 150.161 in the manufacture of jelly, fruit preserves, and jams (collectively, “fruit spreads”). Therefore, fruit spread products named with a nutrient content claim (for example, “low calorie grape jelly”) may contain newer artificial sweeteners to add sweetness to fruit spread products so that they are not inferior in their sweetness compared to their standardized counterparts (for example, “grape jelly”). The provisions of § 130.10 do not require these products to declare the presence of such non-nutritive sweeteners within the name of these foods. FDA took this action to assist consumers in maintaining healthy dietary practices by providing for a modified version of a traditional standardized food to achieve a nutrition goal (e.g., reduction in sugar consumption or calories) and that has a descriptive name that is meaningful to consumers. The provisions of § 130.10 do not, however, permit the use of nutrient content claims as part of the name of a food for foods governed by standards of identity that established the phrase “artificially sweetened” as part of the standard of identity. Accordingly, jelly, preserves, and jams, that use saccharin, sodium saccharin, calcium saccharin, or any combination thereof as non-nutritive sweeteners must still include the term “artificially sweetened” in their names and are not permitted to bear a nutrient content claim as part of the name; however, similar products that use newer non-nutritive sweeteners are governed by § 130.10 and must not include the term “artificially sweetened” in their names.
IJPA is a national trade association representing the manufacturers of jelly, preserves, jams, and nonstandardized fruit spreads, and suppliers of goods and services to the industry, including ingredient suppliers of fruit, sweeteners, and pectin. IJPA submitted a citizen petition dated March 31, 1997 (now Docket No. FDA-1997-P-0007), requesting the revocation of the standards of identity for artificially sweetened jelly, preserves, and jams. IJPA submitted its petition in response to FDA's advance notice of proposed rulemaking announcing that FDA was planning to review its food standards regulations (60 FR 67492; December 29, 1995). In that document, we sought comments on, inter alia, the benefits or lack of benefits of such regulations in facilitating domestic and international commerce, the value of these regulations to consumers, and alternative means of accomplishing the statutory objective of food standards (i.e., to promote honesty and fair dealing in the interest of consumers in the manufacture and sale of food products covered by the standard of identity regulations).
IJPA asserts in its citizen petition that the standards of identity for artificially sweetened jelly, jams, and preserves are outdated. According to IJPA, the standards have not been updated to take into account new non-nutritive sweeteners that have been approved by FDA since 1959. The petition maintains that the general standard in § 130.10 provides fruit spread manufacturers with sufficient flexibility to use newer, intense non-nutritive sweeteners in lieu of traditional nutritive sweeteners, and it would be appropriate to rely on that general standard rather than seek piecemeal amendments to the standards of identity to reflect the development of any new sweeteners. IJPA stated that by using the general standard in § 130.10, manufacturers can create products with nutrient content claims for reductions in calories or sugar content that are established in FDA regulations. According to IJPA, nutrient content terms (e.g., “low calorie”) also better communicate to the consumer the nutritional benefit of the use of non-nutritive sweeteners than does the term “artificially sweetened,” which is required to appear in the labels of products manufactured in conformity with §§ 150.141 and 150.161. Therefore, IJPA concluded in its petition that the standards of identity for artificially sweetened jelly, preserves, and jams are both obsolete and unnecessary, and requested that we revoke these standards. Finally, IJPA stated that as of the date of submission of its citizen petition, there were few products being manufactured under these two standards of identity and that some manufacturers are already using the general standard in § 130.10 to formulate products that have reduced sugar and caloric content. IJPA stated that if these standards are revoked, any products that are currently manufactured in conformity with the standards could remain on the market by operation of § 130.10.
We have reviewed IJPA's petition. We find merit in IJPA's argument that revoking the artificially sweetened standards of identity would allow manufacturers to more accurately and consistently describe the attributes of the fruit spreads that currently conform to those standards. We therefore tentatively conclude that revoking the standards would promote honesty and
Enactment of NLEA and the development of newer artificial sweeteners, thus, renders the standards of identity for artificially sweetened jelly, preserves, and jams in §§ 150.141 and 150.161 obsolete. They no longer serve their intended purpose of ensuring honesty and fair dealing while allowing for the use of artificial sweeteners in standardized fruit jelly and standardized fruit preserves and jams as firms may now use certain artificial sweeteners under § 130.10. The standards for artificially sweetened jelly and artificially sweetened preserves and jams predate the nutrient content claim provisions of § 130.10. Removal of the artificially sweetened standards of identity would mean that products that are currently subject to the requirements of §§ 150.141 and 150.161 would instead be subject to the requirements of § 130.10, the general definition and standard of identity for foods named by a nutrient content claim defined in part 101. Thus, these products would be named by use of a nutrient content claim (e.g., “reduced calorie” or “no sugar added”) along with a standardized term (“jelly” or “jam”), in accordance with § 130.10. Revoking §§ 150.141 and 150.161 also would promote honesty and fair dealing in the interest of consumers by requiring manufacturers to more accurately and consistently describe the attributes of the food (e.g., less sugar or reduced calories); would allow any safe and suitable non-nutritive sweetener to be used in standardized jams, jellies, and preserves; and would allow better comparison to other jams, jellies, and preserves currently modified under the provisions of § 130.10. For example, under current requirements, a jelly that is sweetened with saccharin must be called “artificially sweetened jelly” (in accordance with § 150.141) whereas a similar jelly sweetened with aspartame may be named as “reduced sugar jelly” (in accordance with § 130.10 and provided it meets the requirements for the nutrient content claim “reduced sugar” in § 101.60.(c)(5)) to distinguish it from the standardized food (jelly in § 150.140). Revoking the standards would provide consistency and uniformity among such products because all fruit spreads sweetened with non-nutritive sweeteners would be subject to the same requirements. This proposed rule also is consistent with FDA's proposed general principles for modernizing food standards (70 FR 29214; May 20, 2005). In addition, this proposal is consistent with Executive Order 12866 of September 30, 1993 (58 FR 51735), and Executive Order 13653 of January 21, 2011 (76 FR 3821), regarding improving Agency regulations, regulatory planning, and regulatory review.
Considering the information in this document, we are proposing to revoke the standards of identity for artificially sweetened jelly, preserves, and jams in §§ 150.141 and 150.161, respectively. We request comments on our tentative conclusion that these two standards of identity are obsolete and unnecessary, and that revoking them would promote honesty and fair dealing in the interest of consumers.
We have examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. We tentatively conclude that this proposed rule is not a significant regulatory action as defined by the Executive Orders.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because we have tentatively concluded, as set forth in this document, that this rule would not generate significant compliance costs, we expect that this proposed rule, if finalized, would not have a significant economic impact on a substantial number of small entities. We request comment on the impact of this rule on small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $139 million, using the most current (2011) Implicit Price Deflator for the Gross Domestic Product. We do not expect this proposed rule to result in any 1-year expenditure that would meet or exceed this amount.
We are proposing to revoke the standards of identity for artificially sweetened jelly, preserves, and jams because we have tentatively concluded that these standards are obsolete and unnecessary. The current standards of identity for artificially sweetened jelly (§ 150.141) and artificially sweetened preserves and jams (§ 150.161) provide that they may be manufactured only with specific, non-nutritive artificial sweeteners: saccharin, sodium saccharin, calcium saccharin, or any combination thereof. These standards of identity, therefore, do not permit the use of newer, safe and suitable artificial sweeteners, such as aspartame.
The development of newer artificial sweeteners and the enactment of the NLEA have made the current standards of identity for artificially sweetened jelly, preserves, and jams obsolete. The NLEA and § 130.10 permit the modification of a traditional standardized food to achieve a nutrition goal, such as a reduction in calories. Section 130.10(d)(1) allows the addition of safe and suitable ingredients to a food named by use of a nutrient content claim and a standardized term when these ingredients are used to, among other things, add sweetness to ensure that the modified food is not inferior in performance characteristic to the standardized food, even if such ingredients are not specifically provided for by the relevant food standard. Standardized jelly and standardized preserves and jams products modified under § 130.10 must use nutrient content claims to communicate the
In assessing our regulatory options, we considered the option of taking no action and the option of taking the action proposed by this rule. We have tentatively concluded that the proposed rule, if finalized as proposed, would not be an economically significant regulatory action. We are not quantitatively estimating the benefits and costs of the regulatory alternatives to the proposed rule. In the following paragraphs, we qualitatively compare the costs and benefits of the regulatory options to the costs and benefits of the proposed rule.
By convention, we treat the option of taking no new regulatory action as the baseline for determining the costs and benefits of the other options. Therefore, we associate neither costs nor benefits with this option. The consequences of taking no action are reflected in the costs and benefits associated with taking the action set forth in this proposed rule.
If the proposed rule is finalized as proposed, and we revoke §§ 150.141 and 150.161, products that are currently subject to the requirements of these standards of identity would no longer be required to use the phrase “artificially sweetened” as part of their product name. Furthermore, revoking §§ 150.141 and 150.161 would mean that these same products would be permitted to bear nutrient content claims along with a standardized term (e.g., “reduced calorie jelly” or “no sugar added jam”), in accordance with § 130.10.
The costs of this proposed rule, if finalized as proposed, would result from the need to relabel any existing jelly, preserves, and jams that conform with the standards in §§ 150.141 and 150.161. Any products currently manufactured in accordance with the standards in §§ 150.141 and 150.161 would have to be relabeled in order to comply with § 130.10 if this proposed rule is finalized as proposed. Our review of supermarket scanner data for the years 2001 through 2010, however, revealed that no such products are currently being sold. Sales for products manufactured in accordance with §§ 150.141 and 150.161 were last reported in 2002. A memorandum summarizing the results of this scanner data can be found in Reference 1. The data support our tentative conclusion that most manufacturers most likely have discontinued production of artificially sweetened jelly, preserves, and jams, presumably because of a perception that the phrase “artificially sweetened” is unattractive to consumers. The data also support our tentative conclusion that it is unlikely that this proposed rule would generate significant compliance costs due to the need to relabel products. In fact, removal of the artificially sweetened standards of identity would allow manufacturers to re-introduce products covered under §§ 150.141 and 150.161 to be sold as products covered by § 130.10. That is, they would be named by use of a nutrient content claim in conjunction with a standardized term (e.g., “reduced calorie jelly” or “no sugar added jam”), in accordance with § 130.10. Therefore, we tentatively conclude that any relabeling compliance costs would be negligible.
We do not classify as anticipated costs of this proposed rule, if finalized as proposed, any expenses that firms might voluntarily incur if they choose to change their product formulas or manufacturing practices in response to the proposed revocation of the “artificially sweetened” standards of identity. Any such costs are not costs that would be required by this proposed regulatory change. Instead, these costs would result from voluntary business decisions made by manufacturers.
We tentatively conclude that the principal benefits that would result from the proposed rule, if finalized as proposed, derive from increased information and flexibility. Revoking the artificially sweetened standards of identity would provide producers of jelly, preserves, and jams with the flexibility to use saccharin, sodium saccharin, calcium saccharin, or any combination thereof, in their formulations without having to include the term “artificially sweetened” in their product names. Manufacturers could instead name their products in accordance with approved nutrient content claims, as provided for under § 130.10, thus providing consumers with additional information about the nutritional profile of affected products. Additionally, revoking §§ 150.141 and 150.161 would assist consumers in comparing products covered by the standards with other similar jelly, preserves, and jams manufactured in accordance with § 130.10.
Accordingly, while we do not quantify the costs and benefits of this proposed rule, we tentatively conclude that potential benefits will outweigh any potential costs associated with the rule.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because compliance costs, if any, generated by this proposed rule are expected to be negligible, we tentatively conclude that this proposed rule, if finalized, would not have a significant economic impact on a substantial number of small entities. We request comment on this tentative conclusion. The following analysis, in conjunction with the discussion in this document, constitutes our initial regulatory flexibility analysis as required by the Regulatory Flexibility Act.
This proposed rule, if finalized, would revoke the standards of identity for artificially sweetened jelly, preserves, and jams. The revocation of these artificially sweetened standards of identity would provide small fruit spread firms with the flexibility to use the three non-nutritive sweeteners listed in §§ 150.141 and 150.161 and to name their products with FDA-defined nutrient content claims in accordance with § 130.10, as is currently done for fruit spread products manufactured with other non-nutritive sweeteners.
We do not classify as costs of this proposed rule any expenses that some small firms might voluntarily incur because they choose to change their product formulas or manufacturing practices in ways that would be permitted by the proposed rule, if finalized. As discussed in this document, any such costs would not be costs required by this proposal, if finalized. We request comments on the provisions of this proposed rule that might require small firms to change their current practices.
We have analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. Section 4(a) of the Executive order requires Agencies to “construe * * * a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.”
Section 403A of the FD&C Act (21 U.S.C. 343-1) is an express preemption provision. Section 403A(a) of the FD&C Act provides that “no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—(1) any requirement for a food which is the subject of a standard of identity established under section 401 that is not identical to such standard of identity or that is not identical to the requirement of section 403(g).”
The express preemption provision of section 403A(a) of the FD&C Act does not preempt any State or local requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food (section 6(c)(2) of the NLEA, Public Law 101-535, 104 Stat. 2353, 2364 (1990)).
This proposed rule, if finalized, would impose requirements that fall within the scope of section 403A(a) of the FD&C Act.
We have determined under 21 CFR 25.32(a) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
We conclude that the provisions of this proposed rule are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see
The following source has been placed on display in the Division of Dockets Management (see
1. Memorandum to the file, from Cristina McLaughlin, FDA, November 26, 2012.
Food grades and standards, Fruits.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, and redelegated to the Associate Commissioner for Policy and Planning, it is proposed that 21 CFR part 150 be amended as follows:
1. The authority citation for 21 CFR part 150 continues to read as follows:
21 U.S.C. 321, 341, 343, 348, 371, 379e.
2. Remove §§ 150.141 and 150.161.
Food and Drug Administration, HHS.
Notice of petition.
The Food and Drug Administration (FDA) is announcing that DSM Nutritional Products has filed a petition proposing that the food additive regulations be amended to provide for the safe use of benzoic acid as a feed acidifier in swine feed.
Submit either electronic or written comments on the petitioner's request for categorical exclusion from preparing an environmental assessment or environmental impact statement by January 3, 2013.
Submit electronic comments to:
Isabel W. Pocurull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-453-6853, email:
Under the Federal Food, Drug, and Cosmetic Act (section 409(b)(5) (21 U.S.C. 348(b)(5))), notice is given that a food additive petition (FAP 2273) has been filed by DSM Nutritional Products, 45 Waterview Blvd., Parsippany, NJ 07054. The petition proposes to amend Title 21 of the Code of Federal Regulations (CFR) in part 573
The petitioner has requested a categorical exclusion from preparing an environmental assessment or environmental impact statement under 21 CFR 25.32(r). Interested persons may submit a single copy of either electronic or written comments regarding this request for categorical exclusion to the Division of Dockets Management (see
Office of Natural Resources Revenue, Interior.
Notice of meeting.
The Office of Natural Resources Revenue (ONRR) announces additional meetings for the Indian Oil Valuation Negotiated Rulemaking Committee (Committee). The seventh through ninth meetings of the Committee will take place on January 15 and 16, March 5 and 6, and April 17 and 18, 2013, in Building 85 of the Denver Federal Center. The Committee membership includes representatives from Indian tribes, individual Indian mineral owner organizations, minerals industry representatives, and other Federal bureaus. The public will have the opportunity to comment between 3:45 p.m. and 4:45 p.m. Mountain Time on January 15, 2013; March 5, 2013; and April 17, 2013.
Tuesday and Wednesday, January 15 and 16, 2013; Tuesday and Wednesday, March 5 and 6, 2013; and Wednesday and Thursday, April 17 and 18, 2013. All meetings will run from 8:30 a.m. to 5:00 p.m. Mountain Time for all dates.
ONRR will hold the meetings at the Denver Federal Center, 6th Ave and Kipling, Bldg. 85 Auditorium, Lakewood, CO 80225.
Mr. Karl Wunderlich, ONRR, at (303) 231-3663; or (303) 231-3744 via fax; or via email
ONRR formed the Committee on December 8, 2011, to develop specific recommendations regarding proposed revisions to the existing regulations for oil production from Indian leases, especially the major portion requirement. The Committee includes representatives of parties that the final rule will affect. It will act solely in an advisory capacity to ONRR and will neither exercise program management responsibility nor make decisions directly affecting the matters on which it provides advice.
Meetings are open to the public without advanced registration on a space-available basis. Minutes of this meeting will be available for public inspection and copying at our offices in Building 85 on the Denver Federal Center in Lakewood, Colorado, or are available at
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the State of Delaware for the purpose of amending Regulation No. 1102, Appendix A to clarify the permitting requirements for owners of stationary generators. In the Final Rules section of this
Comments must be received in writing by January 3, 2013.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0619 by one of the following methods:
A.
B.
C.
D.
Cathleen Van Osten (215) 814-2746, or by email at
For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of Proposed Rulemaking (NPRM).
NHTSA is proposing to restore the side marker lamp requirements, for vehicles that are over 80 inches wide, and also less than 30 feet in overall length, to the Federal motor vehicle safety standard (FMVSS) on lamps, reflective devices and associated equipment. These requirements were modified when the agency published a final rule reorganizing the standard on December 4, 2007.
Comments to this proposal must be received on or before January 3, 2013.
You may submit comments, identified by the docket number in the heading of this document, by any of the following methods:
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Regardless of how you submit comments, you should mention the docket number of this document.
You may call the Docket Management Facility at 202-366-9826.
NHTSA published a notice of proposed rulemaking (NPRM) on December 30, 2005
Based on the comments received in response to the NPRM, NHTSA published a final rule on December 4, 2007,
On December 30, 2005, NHTSA published a NPRM to amend FMVSS No. 108 by reorganizing the regulatory text so that it provides a more straight-forward and logical presentation of the applicable regulatory requirements.
S7.4.1.1 Inboard photometry. For each motor vehicle less than 30 feet in overall length and less than 2032 mm. in overall width, the minimum photometric intensity requirements for a side marker lamp may be met for all inboard test points at a distance of 15 feet from the vehicle and on a vertical plane that is perpendicular to the longitudinal axis of the vehicle and located midway between the front and rear side marker lamps.
On December 4, 2007 NHTSA adopted a final rule that amended FMVSS No. 108 based on the 2005 NPRM with modifications that furthered the objectives of the rewrite to make the requirements easier to find and understand. In the final rule NHTSA reiterated that the rewrite of the standard was administrative in nature and the requirements and obligations were not being increased, decreased, or substantively modified.
In the preamble to the final rule, the agency explained that the inboard photometry requirements for side marker lamps (contained in paragraph S7.4.13.2) were based on paragraph S5.1.1.8 of the standard prior to the rewrite which applied to vehicles less than 30 feet in overall length.
The agency did not cite within its analysis in the 2007 final rule the 1980 final rule that originally created the regulatory text as it applies to the inboard photometric requirements, with respect to vehicle size.
The 1980 final rule explained that a reduced photometric angle allowance is more appropriate for vehicles that are short (less than 30 feet) rather than for those that are narrow (less than 80 inches wide), noting that vehicles that are 30 feet or longer are required to have an intermediate side marker lamp located between the front and rear side makers. The 1980 final rule revised FMVSS No. 108 by deleting the words 80 inches in overall width and substituting 30 feet in overall length.
In July, separately, General Motors Company (GM) and Ford Motor Company, (Ford) met with NHTSA and stated their concern that the 1980 final rule may not have been properly considered in the 2007 rewrite of FMVSS No. 108. Both manufacturers further stated that their current dual-wheeled pickup truck side marker designs would require an extensive redesign in order to meet the requirements of the 2007 final rule when it becomes effective on December 1, 2012.
Based on a review of the 1980 final rule, NHTSA recognizes that paragraph S5.1.1.8 of the standard prior to the 2007 rewrite was intended to replace the SAE J592e, Table 1, footnote b, and not to supplement it. We are proposing to restore the photometric requirements for side marker lamps on vehicles less than 30 feet in length so that the requirements may be met for all inboard test points at a distance of 15 feet from the vehicle on a vertical plane that is perpendicular to the longitudinal axis of the vehicle and located midway between the front and rear side marker lamps, regardless of the width of the vehicle. We seek comment on our current analysis and the impacts that such a modification to the 2007 rule will have on manufacturers.
NHTSA believes that a common single-wheeled and dual-wheeled pickup truck side marker design expressed in Chrysler Corporation's original petition that led to the 1980 final rule still exists and is currently being utilized. Therefore, NHTSA will not pursue compliance actions against manufacturers that install side marker lamps on vehicles that are greater than 80 inches wide and shorter than 30 feet that fail to meet the 45 degree inboard photometric requirements of the 2007 final rule, provided that they meet the photometric requirements at a distance of 15 feet from the vehicle and on a vertical plane that is perpendicular to the longitudinal axis of the vehicle and located midway between the front and rear side marker lamps until this rulemaking is either terminated or adopted as a final rule. NHTSA will consider a manufacturer's certification to FMVSS No. 108 complete if the vehicle that is being certified meets the requirements for side marker lamps that were in place prior to the 2007 final rule.
Because this proposal only restores an existing requirement to the standard, the agency does not anticipate that there would be any costs associated with this rulemaking action. The agency expects some minor unquantifiable benefits to manufacturers due to their ability to continue to use side marker lamps of the same design on both narrow and wide vehicles under 30 feet in length. Accordingly, the agency did not conduct a separate economic analysis for this rulemaking.
The National Highway and Motor Vehicle Safety Act states that an FMVSS issued by NHTSA cannot become effective before 180 days after the standard is issued unless the agency makes a good cause finding that a different effective date is in the public interest. The agency has tentatively concluded that it is in the public interest for this proposed rule to become effective as soon as possible after the final rule is issued, should the agency decide to issue a rule, because such an effective date would allow regulated parties to avoid unnecessarily modifying the design of their side marker lamps. The agency proposes an effective date of 30 days after the date of issuance of the final rule should one be issued.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments. Your comments must not be more than 15 pages long.
Please submit your comments by any of the following methods:
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•
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If you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using an Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions.
Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the Office of Management and Budget (OMB) and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at
If you submit your comments by mail and wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under
In addition, you should submit a copy, from which you have deleted the claimed confidential business information, to the Docket by one of the methods set forth above.
We will consider all comments received before the close of business on the comment closing date indicated above under
If a comment is received too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.
You may read the materials placed in the docket for this document (e.g., the comments submitted in response to this document by other interested persons) at any time by going to
NHTSA has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” It is not considered to be significant under E.O. 12866 or the Department's regulatory policies and procedures.
The policy statement in section 1 of Executive Order 13609 provides, in part:
The regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. In some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.
We have reviewed this proposal for the purposes of the National Environmental Policy Act and determined that it would not have a significant impact on the quality of the human environment.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
NHTSA has considered the effects of the proposed rule under the Regulatory Flexibility Act. I certify that this proposed rule would not have a
NHTSA has examined today's final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule would not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” (49 U.S.C. 30103(e)). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See
Pursuant to Executive Order 13132 and 12988, NHTSA has considered whether this proposed rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (e.g., the language and structure of the regulatory text) and objectives of today's proposed rule and finds that this proposed rule, like many NHTSA rules, would prescribe only a minimum safety standard. As such, NHTSA does not intend that this proposed rule would preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by today's proposed rule. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard proposed here. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.
With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729; Feb. 7, 1996), requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) specifies whether administrative proceedings are to be required before parties file suit in court; (6) adequately defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.
Pursuant to this Order, NHTSA notes as follows. The issue of preemption is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.
Pursuant to Executive Order 12988, “Civil Justice Reform,”
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of a proposed or final rule that includes a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995).
Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.
This proposed rule is not anticipated to result in the expenditure by state, local, or tribal governments, in the aggregate, or by the private sector in
Under the procedures established by the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This proposed rule does not contain any collection of information requirements requiring review under the PRA.
Executive Order 13045
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law (
Voluntary consensus standards are technical standards developed or adopted by voluntary consensus standards bodies. Technical standards are defined by the NTTAA as “performance-based or design-specific technical specification and related management systems practices.” They pertain to “products and processes, such as size, strength, or technical performance of a product, process or material.”
Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.
This proposal would not adopt or reference any new industry or consensus standards that were not already present in FMVSS No. 108.
Executive Order 13211
This proposal amends the photometry requirements for side marker lamps on vehicles less than 30 feet in overall length that were changed during the administrative rewrite of the standard. Therefore, this proposed rule will not have any adverse energy effects. Accordingly, this proposed rulemaking action is not designated as a significant energy action.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
• Have we organized the material to suit the public's needs?
• Are the requirements in the rule clearly stated?
• Does the rule contain technical language or jargon that isn't clear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rule easier to understand?
If you have any responses to these questions, please include them in your comments on this proposal.
Anyone is able to search the electronic form of all 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 organization, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the
Motor vehicle safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as set forth below.
1. The authority citation for Part 571 is revised to read as follows:
49 U.S.C. 322, 30111, 30115, 30117, 30166; delegation of authority at 49 CFR 1.95.
2. Section 571.108 is amended by revising paragraph S7.4.13.2 to read as follows:
S7.4.13.2 Inboard photometry. For each motor vehicle less than 30 feet in overall length, the minimum photometric intensity requirements for a side marker lamp may be met for all inboard test points at a distance of 15 feet from the vehicle and on a vertical plane that is perpendicular to the longitudinal axis of the vehicle and located midway between the front and rear side marker lamps.
Fish and Wildlife Service, Interior.
Notice of 90-day petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list
The finding announced in this document was made on December 4, 2012.
This finding is also available on the Internet at
Steve Spangle, Field Supervisor, Arizona Ecological Services Office (see
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531
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 for a listable entity was presented, we are required to promptly conduct a species status review, which we subsequently summarize in a 12-month finding.
On July 11, 2011, we received a petition dated July 7, 2011, from Richard C. Malone, on behalf of the Mountgrove Property Owners Association (petitioner), requesting that the single existing grove of
The petition discusses the origin and taxonomy of the sphinx date palm, and provides details of its life history. The petitioner mentions threats to the entity, and provides brief examples of potential population declines. The petition also discusses the petitioners' views on the advantages of protection for the sphinx date palm for research, education, propagation, as well as the economic advantages of the grove's production of high-quality fruit. The petition includes citations for various references and resources used to support the statements in the petition.
The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a). This finding addresses the petition. Below, we address the petitioner's request to list
All information in this section is from the petition. The Service has no information in its files on the sphinx date palm beyond that presented in the petition.
The grove in Phoenix consists of 450 mature trees and is the only known stand (contiguous area occupied by trees of similar type) of sphinx date palm. The grove is located in the Mountgrove district, south of Lafayette Boulevard, north of the Arizona canal, bordered by 46th Place on the west and 47th place on the east in the Arcadia area of central Phoenix. There are a few additional individual palms in the Phoenix Metro and Yuma areas of Arizona, and two sphinx date palms are reported to exist in California.
The petitioner does not provide descriptive information specific to the sphinx cultivar. They do provide information for the date palm (
The sphinx date palm has a lifespan of 100 to 130 years. Reproduction in the cultivar is vegetative (asexual; only one plant is involved and the offspring is genetically identical to its parent). Propagation is accomplished by removing offshoots (lateral shoot from the main stem of the plant) from mature palms. These offshoots must contain their own root ball (main mass of roots at the base of a plant). Propagation in this slow-growing cultivar is a long process, spanning 3 generations of 8 years each. Approximately 25 years were required to propagate the 450 offshoots needed to plant the grove. Pollination, and thus fruit production, is fully dependent on human intervention as male palms are not sufficiently numerous or near to date-bearing (female) palms for pollination to occur by natural means.
It is believed that Southwest Asia is the native region of the sphinx date palm's parent taxon, the date palm; however, its origin is not known with certainty. The sphinx date palm was
The petition consistently refers to the sphinx date palm as a cultivar of
There have been no previous Federal actions for this entity.
Upon receipt of a petition to list, delist, or reclassify a species, we are to consider whether such petition “clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved” (50 CFR 424.14(b)(2)(i)). Under the Act, a species is defined as including any subspecies of fish or wildlife or plants, and any distinct population segment (DPS) of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532).
The sphinx date palm, like many vascular plants, is of hybrid origin. We acknowledge that hybridization is an important mechanism of plant speciation, as hybrids can display new phenotypes and promote adaptive evolution. We also acknowledge that it is conceivable that over time, the sphinx date palm could become sufficiently reproductively isolated to accrue substantial genetic distinction from its parent species to become a species itself. At this time, however, Phoenix's grove of sphinx date palms is a collection of individuals which does not represent a cohesive population entity with an evolutionary lineage separate from its parent species. In modern taxonomic practice, entities such as the sphinx date palm hybrid do not constitute a species.
The sphinx date palm is a cultivar. Cultivars are not eligible for protection under the Act. Speaking to this distinction, there has been much litigation on the subject of the intent of the relative ambiguity of the term “species” in the Act. In
The Act defines a species as including “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” (16 U.S.C. 1532 (16)). The Service considers plant varieties and subspecies to be essentially identical (“Determination that 11 Plant Taxa are Endangered Species and 2 Plant Taxa are Threatened Species”, 43 FR 17910). Cultivar is a taxonomic level below that of subspecies and variety, and, therefore, cultivars are not listable entities as defined in the Act.
We conclude that the sphinx date palm is not a listable entity as defined under the Act. Therefore, after a review of the guiding regulations, we conclude that the petitioned entity does not constitute a “listable entity” and cannot be listed under the Act.
The District Court in the District of Oregon in their determination for
We conclude that the sphinx date palm is not a valid taxonomic entity and does not meet the definition of a species or a subspecies under the Act. Therefore, after a review of the guiding regulations and litigated precedents, we conclude that the petitioned entity does not constitute a “listable entity” and cannot be listed under the Act.
In summary, the petition does not present substantial information indicating that listing the Sphinx date palm as endangered is warranted, because the entity as petitioned is not listable under the Act.
The primary authors of this notice are the staff members of the Southwest Region of the U.S. Fish and Wildlife Service (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of 90-day petition finding and initiation of status review.
We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the prairie gray fox (
We also evaluated whether the petition presents substantial information to indicate whether or not the Mearn's eastern cottontail in east-central Illinois and western Indiana qualifies as a DPS that may be warranted for listing. Based on our review, we conclude that the petition does not provide substantial information indicating that population of Mearn's eastern cottontail in east-central Illinois and western Indiana is a listable entity under the Act. Because the petition does not present substantial information indicating that the population of Mearn's eastern cottontail in east-central Illinois and western Indiana may be a listable entity, we did not evaluate whether or not the information contained in the petition regarding threats to that population was substantial. We are not initiating a status review in response to this petition for Mearn's eastern cottontail in east-central Illinois and western Indiana. However, we ask the public to submit to us any new information that becomes available concerning the status of, or threats to, the Mearn's eastern cottontail or its habitat at any time.
The finding announced in this document was made on December 4, 2012.
We request that we receive information on or before February 4, 2013. The deadline for submitting an electronic comment using the Federal eRulemaking Portal (see
You may submit information on the prairie gray fox and the plains spotted skunk, by one of the following methods:
(1)
(2)
We will not accept email or faxes. We will post all information we receive on
This finding is available on the Internet at
Richard Nelson, Field Supervisor, Rock Island, Illinois Ecological Service Field Office, 1511 4th Ave., Moline, IL 61265; by telephone at 309-757-5800; or by facsimile at 309-757-5804. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.
Amy Salveter, Field Supervisor, Missouri Ecological Services Field Office, 101 Park DeVille Drive, Suite A, Columbia, MO 65203; by telephone at 573-234-2132; or by facsimile at 573-234-2181. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.
When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly initiate review of 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 prairie gray fox and the plains spotted skunk from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We seek information on:
(1) The species' biology, range, and population trends, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531
(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.
(3) Information regarding overharvest and disease as potential ongoing threats to the plains spotted skunk and prairie gray fox.
(4) Information regarding the impacts of pesticides on food availability for the plains spotted skunk.
(5) Information regarding the impacts of predation by coyotes and bobcats on the prairie gray fox.
If, after the status review, we determine that listing the prairie gray fox or the plains spotted skunk is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) under 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”; and
(5) What, if any, critical habitat you think we should propose for designation if one or both of the species are proposed for listing, and why such habitat meets the requirements of section 4 of the Act.
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.”
You may submit your information concerning this status review by one of the methods listed in the
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
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 initiate a species status review, which we subsequently summarize in our 12-month finding.
On July 18, 2011, we received a petition from Mr. David Wade and Dr. Thomas Alton, requesting that five or six entities of grassland thicket species or subspecies be listed as endangered or threatened under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, required at 50 CFR 424.14(a). However, while reviewing the petition, we determined that the petition did not clearly state which species were included in the petition. Therefore, in a September 2, 2011, letter to the petitioners, we provided the petitioners with an opportunity to revise the petition to clearly identify the petitioned entities, which the petitioners accepted in a September 12, 2011, response to our letter. On January 23, 2012, we received a revised petition from Mr. David Wade and Dr. Thomas Alton, requesting that the prairie gray fox (
To date, no Federal actions have been taken with regard to the prairie gray fox, the plains spotted skunk, or the Mearn's eastern cottontail.
The plains spotted skunk is one of three recognized subspecies of the eastern spotted skunk (
Both the plains spotted skunk and striped skunk (
Habitat associations of this subspecies are likely influenced by whether it is using a natural or human-dominated landscape. The subspecies lives in a wide range of habitats including forests, prairies, brushy areas, farmyards, and cultivated land (Crabb 1948, pp. 212-215; Edmonds 1974, p. 12; Kinlaw 1995, p. 4; Schwartz and Schwartz 2001, p. 327). Regardless of habitat type used, the plains spotted skunk requires extensive vegetative cover. Brushy borders along fields, fence rows, farm buildings, wood piles, heavily vegetated gullies, leaf litter, or downed logs may provide the required extensive cover, which primarily provides protection from predators (Kinlaw 1995, p. 4; Schwartz and Schwartz 2001, p. 327; Lesmeister 2008, pp. 1517-1518). Nowak (1999, p. 734) notes that spotted skunks avoid dense forests; however, plains spotted skunks are more likely to occur where the landscape is composed of a high proportion of forest cover (Hackett 2008, pp. 52-54), and they use oak-hickory forests more than old fields or glades (McCullough 1983, pp. 40-43). Within forest habitats studied by McCullough (1983, p. 41) and Lesmeister (2007, p. 21), skunks used young, dense forest stands or stands with downed logs and slash more often than mature stands with open understories and clean forest floors. Spotted skunks also require an early successional (process by which ecological communities undergo changes following disturbance) component to their habitat to provide cover and denning areas (Lesmeister 2007, p. 56; Lesmeister
Dens can be located above ground or below ground. In natural landscapes, plains spotted skunks den in grassy banks and crevices or cavities under rock piles, hollow logs, and stumps (Kinlaw 1995, p. 4; Schwartz and Schwartz 2001, p. 327). In landscapes dominated by humans, they den in shelterbelts (row of trees planted to provide shelter from wind), fencerows, farm buildings, haystacks, woodpiles, or corn cribs (Crabb 1948, pp. 214-215; Hazard 1982, p. 144; Jones
During most of the year, individual plains spotted skunks remain in an area of approximately 40 hectares (ha) (98.8 acres (ac)), but the home range can vary based on habitat quality and food availability (Schwartz and Schwartz 2001, p. 327). The home range can vary seasonally as well; in spring, the range of males can expand to as much as 1,040 ha (2,569.9 ac) (Schwartz and Schwartz 2001, p. 327). In Missouri, home ranges varied from 55 to 4,359 ha (135.9 to 10,771.3 ac) (McCullough 1983, p. 34). Lesmeister
The plains spotted skunk is omnivorous, but is primarily an insectivore and feeds on insects during all seasons of the year (Kinlaw 1995, p. 4). The proportion of different types of food items varies seasonally. Arthropods are the major dietary component during summer and autumn, with grasshoppers, crickets, ground beetles, and scarab beetles being the preferred food (Schwartz and Schwartz 2001, p. 328). In the winter, small mammals, including eastern cottontail (
The plains spotted skunk currently (and historically) occurs between the Mississippi River and the Continental Divide from Minnesota to the Gulf of Mexico (Kinlaw 1995, p. 3). Historical records indicate that the plains spotted skunk was broadly distributed across its range through the early to mid-1900s and was one of the most common mesocarnivores (a carnivore whose diet consists of 50 to 70 percent meat) where suitable habitat occurred (Crabb 1948, p. 203; Choate
More contemporary records consistently show that the plains spotted skunk underwent declines in the mid- to late 1900s (Choate
The subspecies likely still occupies the same habitat types and occurs in all the States within its historical range (Arkansas, Colorado, Minnesota, Missouri, Nebraska, Oklahoma, South Dakota, Texas, and Wyoming), but in lower abundance (Choate
Gray fox (
The following characteristics describe the gray fox species in general, as they are similar to the characteristics of the prairie gray fox subspecies. The gray fox has a distinguishable appearance with gray fur on its upper body; reddish fur on its neck, the sides of the belly, and inner legs; and white on the rest of its underbody. The guard hairs (long, course hairs that protect soft underfur) are banded with white, gray, and black, which gives the fox's fur a grizzled appearance. It has a black tipped tail and a coarse dorsal mane of black-tipped hairs at the base of its tail (Chapman and Feldhammer 1982, p. 476; Fritzell and Haroldson 1982, p. 1; Hall 1981, p. 942; Hamilton and Whitaker 1979, p. 270). Gray fox are also distinguished from other canids by their widely separated temporal ridges that come together posteriorly in a U-shaped form (Chapman and Feldhammer 1982, p. 476; Fritzell and Haroldson 1982, p. 1; Hall 1981, p. 942; Hamilton and Whitaker 1979, p. 270). Gray fox are smaller than the red fox
Gray fox are generally associated with wooded habitats (Haroldson and Fritzell 1984, p. 226; Fritzell and Haroldson 1982, p. 3; Hamilton and Whitaker 1979, p. 270). Gray fox use oak-hickory forests almost exclusively in southern Missouri, and are frequently found in dense stands of young trees during the day (Haroldson and Fritzell 1984, pp. 226-227). This study noted, however, that forest habitat was the most abundant habitat type in their study area and the importance of wooded habitat is dependent on its availability, and will be used disproportionately to its abundance when wooded habitat is scarce (Haroldson and Fritzell 1984, p. 226). Gray fox use woody cover in deciduous or pine forest, but they also use edge habitat and early old-fields (open habitats that are transitioning from field to forest and are dominated by forbs, grass, and shrubs and small trees) (Fritzell and Haroldson 1982, p. 3). The gray fox tends to select against agricultural areas (Fritzell and Haroldson 1982, p. 3). Cooper (2008, p. 24) found a greater relative abundance of gray fox in Illinois, where there was a greater dispersion of grassland patches into forested areas, and lower densities in areas with larger patches of agricultural fields. A notable characteristic of the gray fox is their ability to climb trees; gray fox are capable of climbing a tree trunk using their claws to grasp and pull themselves up or bounding from branch to branch (Fritzell and Haroldson 1982, p. 5; Hamilton and Whitaker 1979, p. 270). This behavior is used during foraging, predator avoidance, or resting (Fritzell and Haroldson 1982, p. 5).
Gray fox dens are usually located in wooded areas and include underground burrows, cavities in trees or logs, wood-piles, and rock outcrops or cavities under rocks (Jones
The home range of the gray fox varies depending on the season and geographic location (Fritzell and Haroldson 1982, p. 4). Males in southern Illinois were found to have a home range of 136 ha (336.1 ac), and females a home range of 107 ha (264.4 ac) (Fritzell and Haroldson 1982, p. 4). A study by Haroldson and Fritzel (1984, p. 225) conducted in a Missouri oak-hickory forest indicated that nightly range use by gray fox was a fraction of the total monthly range. They also found composite (multiple month) home ranges (average 676 (+/−) 357 ha (1,670 (+/−) 882 ac)) are much larger than the individual month home ranges (average 299 (±) 155 ha (738 (±) 383 ac)) (Haroldson and Fritzel 1984, p. 223). Haroldson and Fritzel (1984, p. 226) also indicated that gray fox home ranges vary among populations. Gray fox are more active at night, with activity at sunrise sharply decreasing and increasing again at sunset (Haroldson and Fritzell 1984, p. 224).
The gray fox is primarily an opportunistic carnivore, with mammals composing most of its diet in the Midwest (Fritzell and Haroldson 1982, p. 4). According to Chapman and Feldhammer (1982, p. 480), the gray fox's diet depends highly on what is available. Although rabbits have been found to be one of their primary food sources, they routinely feed on small rodents and other mammals, birds, and reptiles (Jones
The plains gray fox ranges primarily west of the Mississippi and Illinois Rivers through portions of the central plain States. The historical range for this subspecies included western Wisconsin, Minnesota, Iowa, Missouri, Arkansas, and the eastern sections of North and South Dakota, Nebraska, Kansas, and Oklahoma in the United States, and the
The petition asserts that prairie gray fox numbers have declined in many of the States within its range (Petition, unpaginated). The petition mentions that the Department of the Interior used scent stations to track the relative abundance of several predators, including the gray fox, in many western States. The average Statewide indices between the 1980 and 1981 surveys showed a decline in Minnesota from 2.4 to 1.9, and in Oklahoma from 2.0 to 1.0 (U.S. Department of the Interior 1981, pp. 42, 70; U.S. Department of the Interior 1980, pp. 44, 72). The Statewide indices for Kansas, Nebraska, North Dakota, South Dakota, and Wisconsin were zero in both 1980 and 1981 (U.S. Department of the Interior 1981, pp. 38, 52, 66, 78, 98; U.S. Department of the Interior 1980, pp. 40, 54, 68, 80, 100). There was an increase in the numbers of gray fox between 1980 and 1981 in Illinois; however, all of the scent stations recorded were outside the range of the prairie gray fox subspecies, so they were likely a different subspecies (U.S. Department of the Interior 1981, p. 36; U.S. Department of the Interior 1980, p. 36). The petitioners cite these numbers when asserting that the prairie gray fox was rare to absent in the plains States by 1980 (Petition, unpaginated). The petitioners cite the Minnesota Department of Natural Resources' annual carnivore scent station survey as including gray fox in their “fox” numbers (Petition unpaginated); however we can find no indication in this reference that gray fox were counted during those surveys (Erb 2010, p. 43-57).
The Missouri Department of Conservation's annual Archer's Index to Furbearer Populations shows a 75 percent decline in gray fox numbers since 1983 (petition unpaginated; Blair 2011, p. 31). The petitioners state that the number of gray fox in Wisconsin, as observed by the Wisconsin Department of Natural Resources during routine field work, was comparable to the badger, which is listed by the State as endangered (Petition, unpaginated). The report does indicate that the number of gray fox observed in 2010 was 0.78 observations per respondent, which is higher than the long-term average (during the 23 years of the study) of 0.42 observations per respondent (Kitchell 2010, unpaginated). The number of gray fox counted during the annual Bowhunter Observation Survey in Arkansas have been low but stable from 2005-2010 (Petition, unpaginated; Sasse 2011, unpaginated). The numbers of gray fox counted during the Iowa 2010 Bowhunter Observation Survey were fewer than the margin of error for some of the regions and showed an overall decline in the State (Petition, unpaginated; Roberts and Clark 2011, unpaginated). The petitioners attribute this decline to the loss of preferred habitat and the increase in agricultural habitat, which gray fox avoid (Petition, unpaginated; Cooper 2008, p. 24; Fritzell and Haroldson 1982, p. 189). Although the evidence included in the petition and within our files shows a decline in the population of the prairie gray fox for several States, there are no studies included that specifically indicate what the population of the prairie gray fox was prior to human settlement or how much the population has declined rangewide.
Eastern cottontail (
The eastern cottontail is described as having a total length of 395 to 456 mm (15.6 to 18.0 in) and weighing 801 to 1,411 g (28.3 to 49.8 ounces (oz)) for males, and 400 to 477 mm (15.7 to 18.8 in) and weighing 842 to 1,533 g (29.7 to 54.1 oz) for females (Chapman
In describing eastern cottontail habitat, Chapman
The Mearn's eastern cottontail occurs across a large portion of the eastern cottontail's range, including the entire States of Iowa, Wisconsin, Michigan, Indiana, and Ohio; most of Minnesota, Illinois, and Kentucky; southwestern New York; northern Pennsylvania; western West Virginia; northern Missouri; northeastern Kansas; eastern Nebraska; a small portion of the southeastern corner of South Dakota; and the small portion of the western edge of Virginia (Figure 1) (Hall and Kelson 1981, p. 261; Chapman
Under the Service's Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722, February 7, 1996), three elements are considered in the decision concerning the establishment and classification of a possible DPS. These are applied similarly for additions to or removal from the Federal List of Endangered and Threatened Wildlife. These elements include:
(1) The discreteness of a population in relation to the remainder of the taxon to which it belongs;
(2) The significance of the population segment to the taxon to which it belongs; and
(3) The population segment's conservation status in relation to the Act's standards for listing, delisting (removal from the list), or reclassification (
Our understanding of the petitioners' requested action is that the population of Mearn's cottontail in east-central Illinois and western Indiana (Figure 1) be considered a DPS and listed as endangered or threatened under the Act. Therefore, in this analysis, we evaluate whether the petition provides substantial information that the Mearn's eastern cottontail in east-central Illinois and western Indiana may constitute a DPS.
Under our DPS Policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions:
(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within which significant differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
The petitioners describe the area of the petitioned DPS in the revised petition submission (dated January 23, 2012) as follows: “this region covers the former Grand Prairie region of Illinois and western Indiana.” However, the submitted description does not provide exact boundaries or reference maps for the petitioned DPS. Therefore, the DPS we consider in our evaluation is based on a hand-drawn map submitted by the petitioners in the original petition submission (dated July 18, 2011) (not paginated). For our DPS evaluation, we considered references provided with the original July 18, 2011, petition submission, references provided with the revised January 23, 2012, petition submission, and other information readily available in our files.
The petition cites one study (Mankin and Warner 1999a) as the supporting evidence that the population of Mearn's eastern cottontail in east-central Illinois and western Indiana is: (1) Physically discrete from the rest of the subspecies; (2) ecologically distinct due to intensive agriculture leaving only artificial remnants of its original habitat; and (3) behaviorally distinct because individuals require home ranges averaging 7 times larger than other members of the eastern cottontail species.
The petitioners assert that the petitioned DPS occupies an ecologically distinct area where intensive agriculture has left only artificial remnants of its original habitat. Mankin and Warner (1999a, p. 940) state that east-central Illinois is one of the most intensively farmed regions in North America. This is supported by the findings of Ribic
The petitioners also cite Mankin and Warner (1999a) in stating that the DPS represents a population of Mearn's cottontail that is broken into small populations and is behaviorally distinct from other Mearn's cottontails. Mankin and Warner (1999a) studied the responses of Mearn's eastern cottontails to intensive row-crop agriculture in Ford County, Illinois, which is in the center of the proposed DPS. They found that the Mearn's eastern cottontail had a home range 2.3 times larger during the growing season for the crops than during the non-growing season (Mankin and Warner 1999a, p. 943). The cottontails in the study also had an overall home range that was 7 to 8 times larger than those found by previous research (Mankin and Warner 1999a, p. 945). Mankin and Warner (1999a, p. 945) specifically compared their findings to home ranges of Mearn's eastern cottontail in Wisconsin by Trent and Rongstad (1974), and indicated they were 8 times larger than Wisconsin males' home ranges and 7 times larger than females'. Chapman
Based on the information submitted with the petition and information in our files, we find that the petition presents substantial information to suggest there may be a markedly separate population of Mearn's eastern cottontail in east-central Illinois and western Indiana due to behavioral differences when compared to the subspecies located elsewhere. The population of Mearn's eastern cottontail in east-central Illinois and western Indiana may be discrete from the rest of the Mearn's population because they occupy an area of intensive agriculture that leads to the behavior of maintaining different home-range sizes than the subspecies in the rest of the range. Therefore, this population of Mearn's cottontail may meet the discreteness criterion that it is markedly separated from other populations of the same taxon based on behavioral reasons.
There are no international governmental boundaries associated with this subspecies that are significant. The population of Mearn's eastern cottontail in east-central Illinois and western Indiana lies wholly within the United States. Because this element is not relevant in this case for a finding of discreteness, it was not considered in reaching this determination.
If a population segment is considered discrete under one or more of the conditions described in our DPS policy, its biological and ecological significance will be considered in light of Congressional guidance that the authority to list DPSes be used “sparingly” while encouraging the conservation of genetic diversity. In making this determination, we consider available scientific evidence of the discrete population segment's importance to the taxon to which it belongs. As precise circumstances are likely to vary considerably from case to case, the DPS policy does not describe all the classes of information that might be used in determining the biological and ecological importance of a discrete population. However, the DPS policy does provide four possible reasons why a discrete population may be significant. As specified in the DPS policy (61 FR 4722), this consideration of the population segment's significance may include, but is not limited to, the following:
(1) Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon;
(2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;
(3) Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or
(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
A population segment needs to satisfy only one of these criteria to be considered significant. Furthermore, the list of criteria is not exhaustive; other criteria may be used as appropriate.
The petitioners assert that the population of Mearn's eastern cottontail in east-central Illinois and western Indiana is significant because it represents approximately 20 percent of the range of the subspecies that was not hybridized by the introductions of other species, and thus its loss would result in a significant gap in the range of the subspecies. The petition cites one reference, Chapman and Morgan 1973, to support their assertion. Chapman and Morgan (1973, p. 6) discuss the introduction of many species and subspecies of rabbits into the eastern United States from 1920 to 1950, and the impacts on the native rabbit species in western Maryland and the nearby portions of West Virginia. They found evidence of hybridization between native eastern cottontails and other rabbit species and subspecies from other parts of the country and the hybridization of the subspecies
The petition does not present information to suggest the population of Mearn's eastern cottontail in east-central Illinois and western Indiana may persist in an ecological setting unusual or unique to the taxon, evidence that the population represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range, or evidence that the population differs markedly from other populations of the species in its genetic characteristics. Additionally, we do not have information in our files to indicate that these characteristics are met.
Substantial information is not presented in the petition, nor is it available in our files, to suggest that the population of Mearn's eastern cottontail in east-central Illinois and western Indiana is biologically or ecologically significant to the remainder of the taxon. Therefore, we determine, based on the information provided in the petition and in our files that the population of Mearn's eastern cottontail in east-central Illinois and western Indiana does not meet the significance criterion of the 1996 DPS policy.
We reviewed the information presented in the petition and evaluated that information in relation to information readily available in our files. On the basis of this review, we find that neither the petition, nor information readily available in our files, suggests that the Mearn's eastern cottontail population in east-central Illinois and western Indiana meets the criteria for being significant under our DPS policy. Although the population may meet the criteria for being discrete under the DPS policy, neither the information in the petition, nor the information readily available in our files, suggests that this population of Mearn's eastern cottontail may be significant to the remainder of the taxon. Because both discreteness and significance are required to satisfy the DPS policy, we have determined that the Mearn's eastern cottontail population in east-central Illinois and western Indiana does not satisfy the elements of being a DPS under our 1996 policy and, therefore, is not a listable entity under section 3(16) of the Act. Because the petition does not present substantial information that the population of Mearn's eastern cottontail in east-central Illinois and western Indiana is a DPS, we did not evaluate whether the information contained in the petition regarding the conservation status was substantial.
We encourage interested parties to continue to gather data that will assist with the conservation of the population of Mearn's eastern cottontail in east-central Illinois and western Indiana. If you wish to provide information regarding the Mearn's eastern cottontail, you may submit your information or materials to the Field Supervisor at the Rock Island, Illinois Ecological Service Field Office (see
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 warrant listing as an endangered or threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information must contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of an endangered or threatened species under the Act.
In making this 90-day finding, we evaluated whether information regarding threats to the prairie gray fox and the plains spotted skunk, 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 petitioners claim that threats to the plains spotted skunk include habitat loss and modification. The petition suggests that loss of grassland and early successional habitat has contributed to declining population trends of 90 to 100 percent throughout the subspecies' range (Petition, unpaginated). Plains spotted skunks require some early successional component to their habitat to provide cover and denning areas (Petition, unpaginated; Lesmeister 2007, p. 56; Lesmeister
The petition claims that the plains spotted skunk has since declined (Petition, unpaginated; Gompper and Hackett 2005, pp. 199-200) because of changes in agriculture, silviculture, and climate. Because plains spotted skunks rely on early successional habitat, management activities or lack of management that reduce the occurrence of dense vegetative stands or modify forest structure to more open, mature stands could be detrimental to the subspecies (Petition, unpaginated; Lesmeister 2007, p. 56; Lesmeister 2009, pp. 23-24).
The information readily available in our files supports the petitioners' claims that the plains spotted skunk may be declining rangewide due to loss, degradation, and modification of early successional habitat. The plains spotted skunk has apparently undergone long-term fluctuations in population (Choate
Although there does not appear to be a single cause of decline, a suite of potential factors are suggested consistently in the literature. The decline of small farms, the advent of agriculture practices that encourage removal of fence rows and brush piles, intensive use of pesticides, improved grain management practices, and the end of large haystack construction are implicated as potential causes for the species' decline in landscapes dominated by human activity (Choate
Habitat loss or modification might also be currently occurring in more natural forested landscapes where the plains spotted skunk occurs. In the Ouachita Mountains and Ozark Plateau, use of forested areas was limited to young forest stands with closed canopy and dense understory, areas with fallen logs and brushpiles, ravine bottoms, or stands that had undergone timber stand improvement (TSI) and had high levels of ground litter and slash (McCullough 1983, pp. 40-41; Lesmeister
In summary, we find that the information provided in the petition, as well as other information available in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to historical and currently ongoing habitat loss and degradation due to modifications of early successional habitat. Further assessment of population declines due to the loss of early successional habitat caused by changes in agricultural practices, changes in silvicultural practices, and reduction in food availability by intensive use of pesticides is necessary.
The petitioners did not present information regarding the overutilization of the plains spotted skunk for commercial, recreational, scientific, or educational purposes.
Harvest pressure on the plains spotted skunk during the 1930s has received little consideration for contributing to the decline of the subspecies, but might have been a factor historically (Nilz and Finck 2008, p. 19). Available harvest records from the 1930s to 1940s (Novak
The petitioners did not present information regarding diseases that may affect the plains spotted skunk. The petitioners claim that the plains spotted skunk is experiencing unnaturally high levels of predation, mainly by birds of prey, because of loss of protective cover provided by early successional habitat (Petition, unpaginated). Lesmeister
Based on our review of information provided by the petitioners and readily available in our files, the plains spotted skunk may be declining rangewide due to predation. The most common natural predators of the plains spotted skunks are owls and mesocarnivores (Kinlaw 1995, p. 4; Schwartz and Schwartz 2001, p. 329). Lesmeister
Diseases affecting the subspecies include pneumonia, coccidiosis, and rabies (Kinlaw 1995, p. 4). The plains spotted skunk, however, is often overrated as a carrier of rabies; fewer cases were documented in spotted skunks than in domestic cats, cattle, dogs, or striped skunks (Hazard 1982, p. 145). Viral disease, such as parvovirus, or mink enteritis virus, may contribute to localized population declines, and some viral diseases can exhibit rapid spread and long-term impacts to local population viability, but do not appear to impact the species as a whole (Gompper and Hackett 2005, p. 200). Based on information readily available in our files, disease may have been a cause of historical decline, but we do not have information to indicate that disease is presenting an ongoing threat to the plains spotted skunk. As we proceed with the 12-month status review, we will further investigate whether disease is an ongoing threat to the subspecies.
In summary, the petition and information in our files identifies excessive predation that may be occurring at a higher rate than naturally expected as a threat to the plains spotted skunk. Therefore, we find that the information provided in the petition, as well as other information readily available in our files, presents substantial scientific and commercial information to indicate that the plains spotted skunk may warrant listing due to predation.
The petitioners state that there currently is no mechanism to protect habitat or garner appropriate resources for species conservation.
We do not have any information in our files to indicate whether any regulatory mechanisms that are designed to alleviate threats to the species (
Humans are reported as the main cause of mortality in less natural landscapes (Kinlaw 1995, p. 4). Death is caused by vehicle collision, poisoning, shooting, domestic dogs and cats, and trappers who target plains spotted skunks or take them incidentally when trapping for other species (Jones
We do not have information in our files to indicate any potential threat to the plains spotted skunk due to other natural or manmade factors. Based on
We reviewed the information presented in the petition and evaluated that information in relation to information readily available in our files. On the basis of our determination under section 4(b)(3)(A) of the Act, we determine that the petition does present substantial scientific or commercial information indicating that listing the plains spotted skunk as an endangered or threatened species throughout its entire range may be warranted. This finding is based on information provided under factors A and C.
Because we have found that the petition presents substantial information indicating that listing the plains spotted skunk may be warranted, we are initiating a status review to determine whether listing the plains spotted skunk as an endangered or threatened species 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 species, 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 mean that the 12-month finding will result in a warranted finding.
The petitioners claim that habitat loss and modification are threats to the prairie gray fox. The petitioners state that the gray fox requires early successional cover, grassland, or dense forest, and that the decline of this habitat within the range of this subspecies has contributed to its decline (Petition, unpaginated). The gray fox's use of deciduous or pine woody habitat is well established in the literature (Chamberlain and Leopold 2000, p. 749; Jones
The petitioners assert that the gray fox requires early successional cover, grassland, or dense forest and that the decline of this habitat type has contributed to the subspecies decline (Petition, unpaginated). Gray fox prefer wooded habitat, areas of mixed grassland and forest, and early successional areas (Cooper 2008, p. 4; Chamberlain and Leopold 2000, p. 749; Haroldson and Fritzell 1984, p. 226; Fritzell and Haroldson 1982, p. 4). Gray fox utilize this dense protective cover especially during the day when they are not as active (Haroldson and Fritzell 1984, p. 227). There is evidence that gray fox are more abundant in areas where there is woody or dense cover and less abundant in agricultural areas (Cooper 2008, p. 4). Cooper (2008, p. 26) suggests that habitat loss is one of the gray fox's biggest threats and that the changes in the landscape, predominantly to agriculture in the Midwest, have adversely affected gray fox populations. The petitioners have provided evidence of low or declining numbers of gray fox within the range of the prairie gray fox subspecies (Blair 2011, p. 31; Roberts and Clark 2011, unpaginated; Sasse 2011, unpaginated; Kitchell 2010, unpaginated; U.S. Department of the Interior 1981, pp. 38-98; U.S. Department of the Interior 1980, pp. 40-100). The conversion from native woody habitat to agricultural practices has likely impacted the prairie gray fox as all of the States within its range have agriculture to differing degrees. When settlers arrived in the Midwest, the forests were converted to agriculture before the technology was available to convert prairie lands (U.S. Geological Survey 1998, p. 4). For example, prior to 1860, forest areas were the primary source of cropland in Illinois (U.S. Geological Survey 1998, p. 4). Due to the conversion to agriculture, timber harvest, and development, approximately 70 percent of the available forest land in the Midwest has been lost since 1920 (U.S. Geological Survey 1998, p. 4), and landcover in the Midwest consists of approximately 44 percent agriculture (Mankin and Warner 1999a, p. 956). Although the petitioners do not provide information on the amount of habitat that has been lost throughout the prairie gray fox's range, we believe there is substantial
In summary, we find that the information provided in the petition, as well as other information available in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to the loss of early successional cover, grassland, or dense forest habitat within the range of this subspecies.
The petitioners state that the threats of continued human hunting and trapping of this subspecies is “an additional stressor” but do not provide information as to the numbers of gray fox being harvested in any of the States within the range of the prairie gray fox (Petition, unpaginated).
Fritzel and Haroldson (1984, p. 4) state that “undoubtedly the most important predator of gray fox is man,” referencing specific citations indicating the importance of gray fox pelts in the 1970s. An estimated 26,109 gray fox pelts were harvested in the United States during the 1970-1971 season, increasing to 163,458 during the 1975-1976 season. It was estimated in 1977 that approximately half of the gray fox population in Wisconsin was harvested annually (Fritzel and Haroldson 1984, p. 4). Illinois hunters harvested 9,086 gray fox pelts in the winter of 1977-1978 (McFarland 2007, p. 9). More recently, during the 2010-2011 season, gray fox harvested in the State of Missouri increased 112 percent, while the annual Archer's Index to Furbearer Populations (where deer and turkey archery hunters record sightings of furbearers each fall) shows a 75 percent decline in gray fox numbers since 1983 (Petition, unpaginated; Missouri Department of Conservation 2011 Furbearer Program Annual Report, pp. 11-12; Blair 2011, p. 31). According to the Arkansas Game and Fish Commission 2010-2011 Furbearing Animal Report, 976 gray fox were purchased by licensed fur buyers in the State (Sasse 2011, unpaginated). The report indicates that there was an overall increase in pelts purchased for this season after an overall low in 2009-2010, with the number of pelts purchased increasing by 91 percent. The report also indicates actual numbers of furbearers harvested is likely underreported.
Although there is evidence in the literature that gray fox have been hunted in the past and continue to be harvested to some degree, which may have individual and localized impacts, neither the petition nor information readily available in our files indicates that harvest is affecting the subspecies overall. Therefore, based on information readily available in our files, overutilization may have occurred and may have potentially caused historical decline, but neither the petition nor the information readily available in our files indicate that the overutilization for commercial, recreational, scientific, or educational purposes is a current threat to the prairie gray fox. However, as we proceed with the 12-month status review, we will further investigate this factor to determine whether overutilization for commercial, recreational, scientific, or educational purposes is an ongoing threat to the subspecies.
The petitioners did not present information regarding disease affecting the prairie gray fox. The petitioners claim that the loss of dense cover available to the prairie gray fox due to habitat degradation has made the subspecies more susceptible to predation from coyotes
Jones
We found few sources in our files referencing the effects of disease on gray fox populations. Fritzell and Haroldson
The information provided by the petitioners and within our files indicates that the gray fox is being preyed on by coyotes and, to a lesser degree, bobcats; however, we do not have information as to whether the predation rate has increased beyond a natural level. Our files also contain some information that the impacts of disease may be detrimental to individual populations of the prairie gray fox, but we do not have information as to what impact disease is having on the subspecies.
Therefore, based on information readily available in our files, gray fox are currently being preyed on by coyotes, but we do not have information to indicate that disease or predation is an ongoing threat to the prairie gray fox. As we proceed with the 12-month status review, we will further investigate whether disease or predation are an ongoing threat to the subspecies.
No information on this factor is provided in the petition.
We do not have any information in our files to indicate the amount of protection currently being afforded the prairie gray fox within individual States. Therefore, we find that the petition and the information readily available in our files do not provide substantial scientific or commercial information to indicate that the inadequacy of existing regulatory mechanisms is a threat to the prairie gray fox such that the petitioned action may be warranted. However, as we proceed with the 12-month status review, we will further investigate whether the inadequacy of existing regulatory mechanisms may be a threat to the prairie gray fox.
The petitioners did not present information on whether or how other natural or manmade factors are affecting the prairie gray fox.
We do not have information in our files to indicate any potential threat to the prairie gray fox due to other natural or manmade factors. Therefore, we find that the petition and information readily available in our files do not provide substantial scientific or commercial information to indicate that other natural or manmade factors present a threat to the prairie gray fox such that the petitioned action may be warranted. However, as we proceed with the 12-month status review, we will further investigate whether other natural or manmade factors, such as potential impacts from climate change, may be a threat to the prairie gray fox.
We reviewed the information presented in the petition and evaluated that information in relation to information readily available in our files. On the basis of our determination under section 4(b)(3)(A) of the Act, we determine that the petition does present substantial scientific or commercial information indicating that listing the prairie gray fox throughout its entire range may be warranted. This finding is based on information provided under factor A.
Because we have found that the petition presents substantial information indicating that listing the prairie gray fox may be warranted, we are initiating a status review to determine whether listing the prairie gray fox 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 species, 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 mean that the 12-month finding will result in a warranted finding.
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the Columbia, Missouri, and Rock Island, Illinois Ecological Services Field Offices.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by January 3, 2013 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725-17th Street NW., Washington, DC, 20503. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request approval, from the Office of Management and Budget, for an extension and revision to the currently approved information collection of the Mandatory Country of Origin Labeling (COOL) of Covered Commodities.
Comments must be received by February 4, 2013.
Submitted comments will be available for public inspection at
Julie Henderson, Director, COOL Division, AMS, USDA, by telephone at (202) 720-4486, or email at
Individuals who supply covered commodities, whether directly to retailers or indirectly through other participants in the marketing chain, are required to establish and maintain country of origin and, if applicable, method of production information for the covered commodities and supply this information to retailers. As a result producers, handlers, manufacturers, wholesalers, importers and retailers of covered commodities are affected.
This public reporting burden is a necessary to ensure accuracy of country of origin and method of production declarations relied upon at the point of sale at retail. The public reporting burden also assures that all parties involved in supplying covered commodities to retail stores maintain and convey accurate information as required.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with cooperative wildlife damage management programs.
We will consider all comments that we receive on or before February 4, 2013.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the national management information system for cooperative wildlife damage management programs, contact Mr. Robert Myers, Wildlife Biologist, Wildlife Services, APHIS, 4700 River Road Unit 87, Riverdale, MD 20737; (301) 651-8845. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.
Wildlife Services (WS) of the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, cooperates with Federal agencies, State and local governments, and private individuals to research and implement the best methods of managing conflicts between wildlife and human health and safety, agriculture, property, and natural resources.
Program activities usually consist of either cooperative direct control or technical assistance programs. As part of its program, WS enters into agreements to document the terms and conditions for cooperating with parties outside of APHIS (those parties are referred to as “cooperators”). In response to requests for assistance in managing wildlife damage, WS collects information about organizations, industry, Federal and non-Federal entities, and members of public as part of its program. Information is collected through the use of work initiation documents, cooperative agreement forms, supply order forms and sales records, project reports, and a resource values survey. The information collected through these forms is used by the Agency to:
• Identify cooperators appropriately.
• Identify lands on which WS personnel will work.
• Differentiate between cooperators (i.e., property owners, land managers, or resource owners) who request assistance in managing damage caused by wildlife.
• Identify the land areas on which wildlife damage management activities would be conducted.
• Identify the relationship between resources or property, WS' protection of such resources or property, and the damage caused by wildlife.
• Determine the methods or damage management activities to deal with the damage.
• Establish a record that a cooperative agreement has been entered into with a cooperator.
• Document that permission has been obtained from landowners to go on the cooperator's property.
• Record wildlife damage occurrences on cooperator's property and steps to address them.
• Record occurrences that may have affected non-target species or humans during, or related to, WS project actions.
• Determine satisfaction with service to help WS evaluate, modify, and improve its program.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with the regulations for the importation of mangoes from India into the continental United States.
We will consider all comments that we receive on or before February 4, 2013.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the importation of mangoes from India, contact Mr. William Wesela, Regional Director, Preclearance and Offshore Programs, PPQ, APHIS, 4700 River Road Unit 60, Riverdale, MD 20737; (301) 851-2229. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.
In accordance with these regulations, APHIS allows the importation of mangoes from India into the continental United States under certain conditions to prevent the introduction of plant pests into the United States. These conditions involve the use of information collection activities, one of which is a phytosanitary certificate. As a condition of entry, the mangoes must undergo irradiation treatment and be accompanied by a phytosanitary certificate with additional declaration statements providing specific information regarding the treatment and inspection of the mangoes and the orchards in which they are grown. The additional information collection activities that are required include a preclearance workplan, trust fund agreement, compliance agreement, monitoring and certification of inspections and treatments, and recordkeeping.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies; e.g., permitting electronic submission of responses.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) preliminarily determines that imports from the People's Republic of China (“PRC”) of certain steel threaded rod products with 1.25 percent or more chromium, by weight, produced by Gem-Year Industrial Co., Ltd. (“Gem-Year”), and otherwise meeting the description of in-scope merchandise, are within the class or kind of merchandise subject to the
Toni Dach, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1655.
The merchandise covered by the order is steel threaded rod.
The merchandise subject to this antidumping circumvention inquiry consists of steel threaded rod from the PRC produced by Gem-Year containing greater than 1.25 percent chromium, by weight, and otherwise meeting the requirements of the scope of the
The Department has conducted this preliminary determination of circumvention in accordance with section 781(c) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.225. For a full description of the methodology underlying our conclusions, please see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a proprietary document with a public version, and the public version is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). IA ACCESS is available to registered users at
As detailed in the Preliminary Decision Memorandum, we preliminarily determine that imports from the PRC of certain steel threaded rod products with 1.25 percent or more chromium, by weight, produced by Gem-Year, and otherwise meeting the description of in-scope merchandise, are subject to the
In accordance with 19 CFR 351.225(l)(2), we are directing U.S. Customs and Border Protection (“CBP”) to suspend liquidation of entries of merchandise subject to this inquiry produced by Gem-Year, and entered, or withdrawn from warehouse, for consumption on or after January 5, 2012, the date of the initiation of this inquiry. We will also instruct CBP to require a cash deposit of estimated duties at the applicable rates for each unliquidated entry of the product entered, or withdrawn from warehouse, for consumption on or after January 5, 2012, the date of the initiation of this inquiry, in accordance with 19 CFR 351.225(l)(2).
Interested parties are invited to comment on the preliminary results and may submit case briefs and/or written comments according to a schedule released by the Department concurrent with this notice. Interested parties will be notified by the Department of the location and time of any hearing, if one is requested. Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, filed electronically using IA ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Standard Time within 20 days after the date of publication of this notice.
This preliminary determination of circumvention is in accordance with section 781(c) of the Act and 19 CFR 351.225.
This is a decision consolidated pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5:00 p.m. in Room 3720, U.S. Department of Commerce, 14th and
International Trade Administration, Department of Commerce.
Amendment to notice.
The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service is amending the Notice regarding the Trade Mission to Egypt and Kuwait March 10-14, 2013, published at 77 FR 33439, June 6, 2012 to revise the application deadline from December 14, 2012 to the new deadline of January 18, 2013.
In June 2012 the Department of Commerce initiated recruitment for participation in the U.S. Trade Mission to Egypt and Kuwait March 10-14, 2013, published at 77 FR 33439, June 6, 2012. Due to the Thanksgiving holidays and disruptions related to Hurricane Sandy, it has been determined that additional time is needed to allow for additional recruitment and marketing in support of the mission. Applications now will be accepted through January 18, 2013. Interested firms that have not already submitted an application are encouraged to apply. Applications will be accepted after the deadline only to the extent that space remains and scheduling constraints permit.
The Timeframe for Recruitment and Applications section of the Trade Mission to Egypt and Kuwait is amended to read as follows:
Mission recruitment will be conducted in an open and public manner, including posting Export.gov—and other Internet Web sites; publication in trade publications and association newsletters; direct outreach to the Department's clients; posting in the
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce is organizing a Trade Mission to Bogotá, Colombia and Panama City, Panama. Dates are May 13-16, 2013. This will be an executive-led mission, which will focus on helping U.S. companies launch or increase their export business in the promising sectors within the transportation infrastructure markets of these two countries. The mission will include business-to-business matchmaking appointments with local companies, as well as market briefings, and networking events. In both Colombia and Panama the governments and private sector are investing some $30 billion in infrastructure projects. As a result, the mission will focus on export-ready U.S. firms in the following sectors: Building products, construction equipment, electrical power systems, safety and security equipment, airport supplies, logistics and distribution solutions providers, port equipment, and intelligent transportation systems (ITS).
Colombia ranks solidly with the group of progressive, industrializing countries worldwide that have diversified agriculture, resources, and productive capacities. Despite the global economic crisis, Colombia's economic prospects are positive. In 2011, Colombia enjoyed 5.9% GDP growth and should maintain 4% in 2012. Colombia is attracting record amounts of foreign direct investment (FDI), which is further leading to rapid industrial development, necessitating the need for improved infrastructure. In 2011, Colombia attracted $13 billion in FDI, and is on pace to attract $15 billion in 2012. In addition, per capita income continues to grow as Colombia's middle class has doubled in the past 10 years.
Colombia is the third largest market in the region, after Mexico and Brazil, and is ranked 22nd as a market for U.S. exports globally. Over the past 10 years, Colombia has become one of the most stable economies in the region. Improved security, sound government policies, steady economic growth, moderate inflation and a wide range of opportunities make it worthwhile for U.S. exporters to take a serious look at Colombia.
Bogotá, the capital of Colombia, generates approximately 30 percent of the country's total gross domestic product (GDP). Bogotá offers diverse business opportunities in almost all economic sectors.
The overall improvement in the national safety and security situation in Colombia has allowed the government to focus on improving its infrastructure development, which along with a boom in the extractive industries, has fueled the growth of U.S. exports to Colombia, including opportunities generated by highway, hotel and housing construction in Bogotá and coastal cities such as Cartagena and Barranquilla. The government of Colombia has earmarked $26 billion over the next 4 years for primarily road projects. However, on-going and future projects exist in airport modernization, sea and river port developments, and rail line upgrades. In addition, most major cities in Colombia are looking for solutions to improve internal transportation, including mass transit. A recently completed U.S. Trade Development Agency reverse trade mission focused on ITS highlights the opportunities that exist in Colombia across the board in transportation infrastructure.
Colombia's traditional acceptance of U.S. brands as well as U.S. and international standards provide a solid foundation for U.S. firms seeking to do business there. Moreover, the implementation of the US-Colombia Free Trade Agreement on May 15, 2012 provided immediate duty-free entry for 80 percent of U.S. consumer and industrial exports to Colombia, with remaining tariffs phased out over the next 10 years. The Agreement also opens the market for remanufactured goods and provides greater protection for intellectual property rights (IPR).
Panama has historically served as the crossroads of trade for the Americas. Its strategic location as a bridge between two oceans and the meeting of two continents has made Panama not only a maritime and air transport hub, but also an international trading, banking, and services center. Panama's global and regional prominence is being enhanced by recent trade liberalization and privatization, and it is participating actively in the hemispheric movement toward free trade agreements. Panama's dollar-based economy offers low inflation in comparison with neighboring countries and zero foreign exchange risk. Its government is stable and democratic and actively seeks foreign investment in all sectors, especially services, tourism and retirement properties.
Panama and the U.S. recently implemented a Trade Promotion Agreement (TPA) that has had the effect of eliminating some 90% of tariffs and duties on U.S. exports to Panama. But even before the implementation of the TPA, the U.S. was Panama's most important trading partner, with about 30% of the import market, and U.S. products have enjoyed a high degree of acceptance in Panama. In 2011, U.S. exports to Panama jumped 34% to $8.25 billion—in no small part due to the fact that Panama's economy grew 10.5%. However, international competition for sales is strong across sectors including telecommunications equipment, automobiles, heavy construction equipment, consumer electronics, computers, apparel, gifts, and novelty products.
Panama now enjoys investment grade rating status, granting the Government of Panama international recognition for recent tax reforms and its record of steady GDP growth while keeping its deficits under control (even in 2009, a dismal year for the world economy, Panama's economy grew 2.9% and the Government of Panama's deficit was only 1% of GDP). Not only does the investment-grade rating lower the cost of borrowing for the Government of Panama, but it sends a strong market signal that Panama, even while carrying a debt ratio that is relatively high, is one of only five Latin American countries to achieve this distinction.
Panama's economy is based primarily on a well-developed services sector, accounting for about 75% of GDP. Services include the Panama Canal, banking, the Colon Free Zone, insurance, container ports, and flagship registry. Panama is currently engaged in the Panama Canal expansion project. This project, in conjunction with the expansion of the capacities of its ports on both the Atlantic and Pacific coasts, will solidify Panama's global logistical advantage in the Western Hemisphere.
This logistical platform has aided the success of the Colon Free Zone (CFZ), the second largest in the world after Hong Kong, which has become a vital trading and transshipment center serving the region and the world. CFZ imports—a broad array of luxury goods, electronic products, clothing, and other consumer products—arrive from all over
This trade mission is designed to help U.S. firms initiate or expand their exports to Colombia and Panama by providing business-to-business introductions and market access information.
The mission will stop in Panama City, Panama and Bogotá, Colombia. In each city, participants will meet with pre-screened potential agents, distributors, and representatives, as well as other business partners and government officials. They will also attend market briefings by U.S. Embassy officials, as well as networking events offering further opportunities to speak with local business and industry decision-makers.
All parties interested in participating in the Executive-led Trade Mission to Colombia and Panama must complete and submit an application package for consideration by the Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. A minimum of 15 U.S. companies and/or trade associations and maximum of 17 companies and/or trade associations will be selected to participate in the mission from the applicant pool. U.S. companies or trade associations already doing business with Colombia and Panama, as well as U.S. companies or trade associations seeking to enter these countries for the first time may apply.
After a company and/or trade association has been selected to participate on the mission, a payment to the Department of Commerce in the form of a participation fee is required. The participation fee will be $3,980 for large firm or trade association and $2,675 for a small or medium-sized enterprise (SME).
• An applicant must submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. If the Department of Commerce receives an incomplete application, the Department may reject the application, request additional information, or take the lack of information into account when evaluating the applications.
• Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least fifty-one percent U.S. content. In the case of a trade association or trade organization, the applicant must certify that, for each company to be represented by the trade association or trade organization, the products and services the represented company seeks to export are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least fifty-one percent U.S. content.
Selection will be based on the following criteria, listed in decreasing order of importance:
• Suitability of the company's (or, in the case of a trade association or trade organization, represented companies') products or services for the Colombian and Panamanian markets
• Company's (or, in the case of a trade association or trade organization, represented companies') potential for business in Colombia and Panama, including likelihood of exports resulting from the mission
• Consistency of the applicant's goals and objectives with the stated scope of the trade mission
Mission recruitment will be conducted in an open and public manner, including publication in the
Applications can be downloaded from the trade mission Web site or can be obtained by contacting Arica Young, Carlos Suarez or Enrique Tellez at the U.S. Department of Commerce (see contact details below.) Completed applications should be submitted to Arica Young, Carlos Suarez or Enrique Tellez.
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service (CS) is organizing a trade mission to Asia, that will include the Trade Winds—Asia business forum in Seoul, Korea, May 2013. U.S. trade mission members will participate in the Trade Winds—Asia business forum in Seoul, Korea (which is also open to U.S. companies not participating in the trade mission). Trade mission participants may participate in their choice of mission stops. On the first leg of the trade mission, prior to the Korean trade mission stop, participants may choose to participate in a trade mission stop in either: The Philippines and/or Hong Kong. Trade mission participants may then choose to participate in a trade mission stop in Korea, during which trade mission participants may participate in the Trade Winds—Asia business forum. Following the trade mission stop in Seoul, Korea, trade mission participants may choose to participate in a trade mission stop in either: Japan and/or Taiwan.
Each trade mission stop will include one-on-one business appointments with pre-screened potential buyers, agents, distributors and joint-venture partners, and networking events. Trade mission participants electing to participate in the Trade Winds—Asia business forum may attend regional and industry-specific sessions and consultations with CS Senior Commercial Officers based in Asia.
This mission is open to U.S. companies and trade associations from a cross section of industries with growth potential in The Philippines, Hong Kong, Korea, Japan and Taiwan, including but not limited to: Aerospace and aviation, automotive electronics, computer services & software, consumer goods, defense industry equipment, food processing systems, education, electrical power systems, electronic components, energy (both new and renewable, entertainment and media, environmental technologies and services, financial services, franchising, healthcare & medical, hotel/restaurant equipment, housing products, industrial chemical, info. & comm. technology, information security services, logistics development, machine tools and equipment, medical equipment and pharmaceuticals, outbound travel and tourism, pet products, pleasure boats and accessories, pollution control equipment, port construction, retail, safety and security equipment, semiconductors, specialty chemicals, telecommunications equipment, transportation infrastructure, travel and tourism services.
On March 15, 2012, the Korea-U.S. Free Trade Agreement (KORUS) went into force, becoming our nation's largest Free Trade Agreement (spell out) since NAFTA. The agreement has the potential to increase U.S. exports to Korea by approximately $10-12 billion, and it will be especially beneficial for U.S. small and medium enterprises (spell out).
The amount of trade between, the U.S. and Korea exceeded $100 billion for the first time ever. U.S. exports reached an all-time high of $43.5 billion and also increased 12% over 2010 levels.
Korea is the United States' seventh-largest trading partner. The U.S. is the third-largest exporter to Korea, with a 9% market share. Key competitors include: China, with 16.8%; Japan, with 15.3%; and the EU (27 nations), with 10%. Since the EU had already implemented its FTA with Korea, U.S. firms will now be in a stronger competitive situation following KORUS implementation.
Korea's projected 2012 GDP growth is forecasted at around 3.6%, but could come in slightly lower given global economic sluggishness. Its commercial banks maintain strong reserves, in case of a possible worldwide slowdown or difficulties within the Euro zone. Korea will continue to focus its development on key growth sectors. Patents and trademarks issued by the Korean Patent Office exceeded 362,000 filings in 2010. The increasing trend in local patent and trademark filings reflects the move toward more technology-intensive and capital-intensive industries and services.
Best market prospects for Korea include: The aerospace Industry, specialty chemicals; cosmetics; defense industry equipment; education services; new and renewable energy, entertainment and media, franchising; medical equipment and devices, pollution control equipment; semiconductors, and travel & tourism.
With a population of 23 million, Taiwan is a thriving democracy, vibrant market economy, and a highly attractive export market, especially for U.S. firms. In 2011, Taiwan was ranked as the tenth-largest trading partner in goods with the U.S., putting it ahead of markets such as India and Italy. It is also the sixth-largest agricultural market for the U.S., and the fifth-largest source of foreign students in U.S. higher education. Taiwan is the world's fourth-largest holder of foreign exchange reserves, with over $385 billion in 2011. The Taiwan economy softened slightly after 2010, but still enjoyed 4% GDP growth in 2011. Unemployment has remained relatively low, and an appreciating currency makes U.S. goods and services attractive to Taiwan buyers.
Taiwan's real GDP increased by 4% in 2011, and this growth was mainly driven by strong export growth and private-investment expansion. In addition, the tariff reductions and exemptions from the Economic Cooperation Framework Agreement (ECFA), which became effective on January 1, 2011, helped spur Taiwan's exports to China.
However, Taiwan's export growth may be significantly impacted by the New Taiwan dollar's appreciation against the U.S. dollar. Local private consumption is expected to expand continuously as a result of the recent
Taiwan's best prospect sectors for U.S. exports include information communications and technologies, safety and security equipment, renewable energy technologies, publishing services, education and training services, travel and tourism, electronic components, pet products, and medical devices and equipment.
Japan is the world's third largest economy, after the United States and China, with a GDP of roughly $5.9 trillion. Japan is our fourth largest export market, receiving $66.2 billion in goods and $47.6 billion in services from the United States in 2011. Japan is also the second largest foreign investor in the United States, with more than $257 billion invested.
Japan's economy is highly efficient and competitive and its reservoir of industrial leadership and technicians, well-educated and industrious work force, high savings and investment rates, and intensive promotion of industrial development and trade has produced a mature industrial economy. Japan has few natural resources, and trade helps the nation earn the foreign exchange needed to purchase raw materials for its economy. Tokyo alone forms the core of an urban area that boasts a total population of over 35 million, roughly equivalent to the New York and Los Angeles metropolitan areas combined, and accounts for about one-third of Japan's total GDP. Consumers are highly sophisticated and discerning and are on the vanguard of the latest technological developments, trends and fashions, while the rapidly aging population is creating demand for new and innovative solutions across all areas of the economy. All of this creates demand for high-quality, innovative Made-in-USA goods and services. And with the continued strength of the Japanese yen against the U.S. dollar, American goods and services have never been more affordable for Japanese buyers. Best prospect sectors include: Aerospace, computer software, cosmetics/toiletries, education and corporate training, electronic components, medical equipment, pharmaceuticals, renewable energy, safety and security, soil remediation and engineering services, telecommunications equipment, and travel/tourism, along with hot new emerging sectors such as biotechnology, healthcare IT and nanotechnology.
Most globally competitive American and international firms compete heavily in the Japanese market, and partner with Japanese firms worldwide. Savvy observers agree that an active engagement with the Japanese market remains critical to the success of American firms both large and small, whether in Japan, in other world markets, or even back home in the United States.
Hong Kong, a Special Administrative Region of the People's Republic of China (PRC) since its reversion in 1997, has proven resilient in past economic crises. Dominant and sustained drivers of economic growth include private consumption (retail), transportation and logistics, and business services, real estate development (bolstered by ongoing public infrastructure works), and tourism. Hong Kong has benefited from continued economic integration with mainland China's strong economy. In particular, Beijing's policy of opening its service sector and gradually expanding the scope of the offshore Renminbi (RMB—the PRC's currency) market in Hong Kong and the sustained high numbers of mainland Chinese visitors (28 million in 2011) have strengthened Hong Kong's economy.
Hong Kong is an ideal platform for doing business in Asia, especially for mainland China. Hong Kong is a free port that does not levy any customs tariffs and has limited excise duties. Its strong rule of law and respect for property rights make it a strategic platform for U.S. companies, especially small- and medium-sized firms, seeking to do business in Asia. Hong Kong's statutory trade promotion body, the Trade Development Council, seized upon this unique positioning to create the Pacific Bridge Initiative in late 2010, the first such agreement with a foreign government affiliate explicitly supporting the United States.
Hong Kong's businesses enjoy close links to mainland China and the rest of Asia. According to Hong Kong Government statistics, there are 1,328 subsidiaries of U.S. parent companies in Hong Kong, making the United States the largest source of subsidiaries in Hong Kong. Among those U.S. subsidiaries, 840 are regional headquarters or regional offices. Hong Kong's key characteristics are its openness, and promotion of tourism, trade and investment.
In 2011, U.S. exports to Hong Kong were $27.3 billion, which constituted 5.6% of Hong Kong's imports (2011) and ranked the territory as the U.S.'s 10th largest export market. Its major trading partners: Mainland China, United States, EU, Japan, and Taiwan. Hong Kong has world-class infrastructure; a free flow of information; no restrictions on inward or outward investment; no foreign-exchange controls; no nationality restrictions on corporate or sectoral ownership; a simple, low-tax regime; and is a global financial hub. In addition, Hong Kong citizens speak excellent English and the Hong Kong Dollar is pegged to the U.S. Dollar.
United States goods exports to the Philippines in 2011 were USD7.7 billion, up 4.5% (USD330 million) from 2010, but down 12.3% from 2000. The top export categories (2-digit HS) in 2011 were: Electrical machinery, machinery, cereals (wheat), optic and medical instruments, and food waste and animal feed (soybean residues). U.S. service exports to the Philippines totaled USD2.2 billion in 2011.
U.S. exports of agricultural products to the Philippines totaled USD2.1 billion in 2011, the 11th-largest U.S. Ag export market. Leading categories include: Wheat, soybean meal, dairy products, and red meats fresh/chilled/frozen.
U.S. exports of private commercial services (i.e., excluding military and government) to the Philippines were USD2.2 billion in 2011 (latest data available), 17% more than the 2009 level. The private-services category (business, professional, and technical services) and travel category accounted for most of U.S. service exports in 2010.
Philippine GDP growth slowed to 3.7% in 2011 following one-off factors in 2010 (election spending and heavy post-typhoon reconstruction); lower-than-targeted government expenditures; and adverse developments globally. The Government reverted to a deficit reduction path in 2011 after opting for higher deficits in 2008 to 2010 to help support economic growth and generate employment. However, the Government spent significantly below target, contributing to the economy's weaker-than-expected expansion.
The goal of the Asia trade mission is to help participating firms gain market insights, make industry contacts, solidify business strategies, and advance specific projects, with the goal of increasing U.S. exports to Korea, Taiwan, Japan, Hong Kong and The Philippines. The delegation will have access to CS Senior Commercial Officers
All parties interested in participating in the U.S. and Foreign Commercial Service Trade Mission to Asia must complete and submit an application package for consideration by the Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below.
A minimum of 65 companies and/or trade associations will be selected to participate in the mission from the applicant pool on a rolling basis. Additional delegates will be accepted based on available space. Each of the trade mission stops (Japan, Taiwan, Hong Kong, the Philippines) is designed for participation of a maximum of 30 participants. U.S. companies and/or trade associations already doing business in, or seeking to enter Japan, Taiwan, Korea, Hong Kong and the Philippines for the first time may apply.
After a company has been selected to participate in the mission, a payment to the Department of Commerce in the form of a participation fee is required.
For one mission stop, the participation fee will be $2,450 for a small or medium-sized enterprise (SME)
Each additional mission stop will result in an additional participation fee of $1,000 for both small or medium sized enterprises and large firms alike.
An additional representative will require an additional fee of $325 per mission stop for both small or medium sized enterprises and large firms alike.
Expenses for travel, lodging, meals, and incidentals (e.g., local transportation) will be the responsibility of each mission participant.
• An applicant must submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. Applicant should specify in their application and supplemental materials which trade mission stops they are interested in participating in. If the Department of Commerce receives an incomplete application, the Department may reject the application, request additional information, or take the lack of information into account when evaluating the applications.
• Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the U.S., or, if not, marketed under the name of a U.S. firm and have at least 51% U.S. content of the value of the finished product or service. In the case of a trade association or trade organization, the applicant must certify that, for each company to be represented by the trade association or trade organization, the products and services the represented company seeks to export are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least fifty-one % U.S. content.
Selection will be based on the following criteria:
• Suitability of the company's (or, in the case of a trade association or trade organization, represented companies') products or services to each of the markets the company has expressed an interest in visiting as part of this trade mission.
• Company's (or, in the case of a trade association or trade organization, represented companies') potential for business in each of the markets the company has expressed an interest in visiting as part of this trade mission.
• Consistency of the applicant's goals and objectives with the stated scope of the mission.
Diversity of company size, sector or subsector, and location may also be considered during the review process.
Referrals from political organizations and any documents containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and not considered during the selection process.
Mission recruitment will be conducted in an open and public manner, including publication in the
Recruitment for the mission will begin immediately and conclude no later than March 30, 2013. The U.S. Department of Commerce will review applications and make selection decisions on a rolling basis beginning December 17, 2012, until the minimum of 65 participants is selected. After March 30, 2013, companies will be considered only if space and scheduling constraints permit.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of standard prices and fee percentage.
NMFS publishes individual fishing quota (IFQ) standard prices and fee percentage for the IFQ cost recovery program in the halibut and sablefish fisheries of the North Pacific. The fee percentage for 2012 is 2.1%. This action is intended to provide holders of halibut and sablefish IFQ permits with the 2012 standard prices and fee percentage to calculate the required payment for IFQ cost recovery fees due by January 31, 2013.
Effective December 4, 2012.
Troie Zuniga, Fee Coordinator, 907-586-7231.
NMFS Alaska Region administers the halibut and sablefish individual fishing quota (IFQ) programs in the North Pacific. The IFQ programs are limited access systems authorized by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Northern Pacific Halibut Act of 1982. Fishing under the IFQ programs began in March 1995. Regulations implementing the IFQ program are set forth at 50 CFR part 679.
In 1996, the Magnuson-Stevens Act was amended to, among other things, require the Secretary of Commerce to “collect a fee to recover the actual costs directly related to the management and enforcement of any * * * individual quota program.” This requirement was further amended in 2006 to include collection of the actual costs of data collection, and to replace the reference to “individual quota program” with a more general reference to “limited access privilege program” at section 304(d)(2)(A). This section of the Magnuson-Stevens Act also specifies an upper limit on these fees, when the fees must be collected, and where the fees must be deposited.
On March 20, 2000, NMFS published regulations implementing the IFQ cost recovery program (65 FR 14919), which are set forth at § 679.45. Under the regulations, an IFQ permit holder incurs a cost recovery fee liability for every pound of IFQ halibut and IFQ sablefish that is landed on his or her IFQ permit(s). The IFQ permit holder is responsible for self-collecting the fee liability for all IFQ halibut and IFQ sablefish landings on his or her permit(s). The IFQ permit holder is also responsible for submitting a fee liability payment to NMFS on or before the due date of January 31 of the year following the year in which the IFQ landings were made. The dollar amount of the fee due is determined by multiplying the annual IFQ fee percentage (3 percent or less) by the ex-vessel value of all IFQ landings made on a permit and summing the totals of each permit (if more than one).
The fee liability is based on the sum of all payments made to fishermen for the sale of the fish during the year. This includes any retro-payments (e.g., bonuses, delayed partial payments, post-season payments) made to the IFQ permit holder for previously landed IFQ halibut or sablefish.
For purposes of calculating IFQ cost recovery fees, NMFS distinguishes between two types of ex-vessel value: Actual and standard. Actual ex-vessel value is the amount of all compensation, monetary or non-monetary, that an IFQ permit holder received as payment for his or her IFQ fish sold. Standard ex-vessel value is the default value on which to base fee liability calculations. IFQ permit holders have the option of using actual ex-vessel value if they can satisfactorily document it; otherwise, the standard ex-vessel value is used.
Regulations at § 679.45(c)(2)(i) require the Regional Administrator to publish IFQ standard prices during the last quarter of each calendar year. These standard prices are used, along with estimates of IFQ halibut and IFQ sablefish landings, to calculate standard values. The standard prices are described in U.S. dollars per IFQ equivalent pound for IFQ halibut and IFQ sablefish landings made during the year. IFQ equivalent pound(s) is the weight (in pounds) for an IFQ landing, calculated as the round weight for sablefish, and headed and gutted net weight for halibut. NMFS calculates the standard prices to closely reflect the variations in the actual ex-vessel values of IFQ halibut and IFQ sablefish landings by month and port or port-group. The standard prices for IFQ halibut and IFQ sablefish are listed in the tables that follow the next section. Data from ports are combined as necessary to protect confidentiality.
Section 304(d)(2)(B) of the Magnuson-Stevens Act specifies a maximum fee of 3 percent of the ex-vessel value of fish harvested under an IFQ Program. NMFS annually sets a fee percentage for sablefish and halibut IFQ holders that is based on the actual annual costs associated with certain management and enforcement functions, as well as the standard ex-vessel value of the catch subject to the IFQ fee for the current year. The method used by NMFS to calculate the IFQ fee percentage is described at § 679.45(d)(2)(ii).
Regulations at § 679.45(d)(3)(i) require NMFS to publish the IFQ fee percentage for the halibut and sablefish IFQ fisheries in the
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) will hold a one-day meeting to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will start at 9 a.m. on Thursday, December 20, 2012.
The meeting will be held at the Sheraton Colonial Hotel, One Audubon Road, Wakefield, MA 01880; telephone: (781) 245-9300; fax: (781) 245-0842.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
Following introductions and any announcements, the Council will make final decisions on Framework Adjustment 48 to the Northeast Multispecies Fishery Management Plan. Specifically it is scheduled to review and select preferred alternatives concerning the following issues:
Acceptable biological catch and annual catch limits for fishing year 2013 and beyond;
Management measures for sector vessels (including measures related to at-sea and dockside monitoring of sector trips);
Sector vessel access to parts of the year-round closed areas; and
Changes to the accountability measures for commercial and recreational vessels, gear requirements for small-mesh bottom trawl vessels fishing on Georges Bank, and several other issues.
The Council also will review proposed monitoring requirements for a sector exemption request designed to facilitate the targeting of redfish. Any other related business that has not been covered under the stated agenda items listed above will be considered before adjournment at the end of the day.
Although other non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
U.S. Consumer Product Safety Commission.
Notice.
Notice of telephonic prehearing conference for the consolidated case: In the Matter of MAXFIELD AND OBERTON HOLDINGS, LLC and ZEN MAGNETS, LLC, CPSC Docket No. 12-1 and CPSC Docket No.12-2.
January 10, 2013, 12:30 p.m. Mountain/1:30 p.m. Central/2:30 p.m. Eastern.
Members of the public are welcome to attend the prehearing conference at the Courtroom of Hon. Dean C. Metry at 601 25th Street, 5th Floor Courtroom, Galveston, Texas 77550.
Jan Emig, Paralegal Specialist, U.S. Coast Guard ALJ Program, (409) 765-1300.
Any or all of the following shall be considered during the prehearing conference:
(1) Petitions for leave to intervene;
(2) Motions, including motions for consolidation of proceedings and for certification of class actions;
(3) Identification, simplification and clarification of the issues;
(4) Necessity or desirability of amending the pleadings;
(5) Stipulations and admissions of fact and of the content and authenticity of documents;
(6) Oppositions to notices of depositions;
(7) Motions for protective orders to limit or modify discovery;
(8) Issuance of subpoenas to compel the appearance of witnesses and the production of documents;
(9) Limitation of the number of witnesses, particularly to avoid duplicate expert witnesses;
(10) Matters of which official notice should be taken and matters which may be resolved by reliance upon the laws administered by the Commission or upon the Commission's substantive standards, regulations, and consumer product safety rules;
(11) Disclosure of the names of witnesses and of documents or other physical exhibits which are intended to be introduced into evidence;
(12) Consideration of offers of settlement;
(13) Establishment of a schedule for the exchange of final witness lists, prepared testimony and documents, and for the date, time and place of the hearing, with due regard to the convenience of the parties; and
(14) Such other matters as may aid in the efficient presentation or disposition of the proceedings.
Telephonic conferencing arrangements to contact the parties will be made by the court. Mary Murphy, Esq. and Jennifer Argabright, Esq., Counsel for the U.S. Consumer Product Safety Commission, shall be contacted by a third party conferencing center at (301) 504-7809. David C. Japha, Esq., Counsel for ZEN MAGNETS, LLC (Respondent) shall be contacted by a third party conferencing center at (303) 964-9500. Eric C. Tew, Esq. and Paul M. Laurenza, Esq., Counsel for MAXFIELD AND OBERTON HOLDINGS, LLC (Respondent) shall be contacted by a third party conferencing center at (202) 906-8646.
Consumer Product Safety Act, 15 U.S.C. 2064.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before January 3, 2013.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
Electronically mail
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE), pursuant to the Paperwork Reduction Act of 1995, intends to extend for three years, an information collection request with the Office of Management and Budget (OMB).
Comments regarding this proposed information collection must be received on or before February 4, 2013. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.
Written comments may be sent to Regina Cano, U.S. Department of Energy, Office of Health, Safety and Security (HS-50), 1000 Independence Ave. SW., Washington, DC 20585, telephone at (301) 903-3473, by fax at (301) 903-6961, or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Regina Cano, U.S. Department of Energy, Office of Health, Safety and Security, HS-50, 1000 Independence Ave. SW., Washington, DC 20585, telephone at (301) 903-3473, by fax at (301) 903-6961, or by email at
This information collection request contains: (1) OMB No. 1910-5122; (2)
42 U.S.C. 2165; 42 U.S.C. 2201; 42 U.S.C. 5814-5815; 42 U.S.C. 7101
U.S. Energy Information Administration (EIA), Department of Energy (DOE).
Notice of a discontinuation of series in the publication of natural gas wellhead prices and request for comments.
EIA is announcing the discontinuation of the natural gas wellhead price series. Beginning in January 2013, EIA will discontinue publishing wellhead prices, and will begin publishing a natural gas spot price at the Henry Hub and an NGL composite spot price at Mont Belvieu. Comments are invited on the proposed change. Please provide a description of your current use of the wellhead price data if applicable.
Comments must be filed by February 4, 2013. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.
Comments should be mailed to Jose Villar, EI-24, Forrestal Building, U.S. Department of Energy, 1000 Independence Ave. SW., Washington, DC 20585.
Requests for additional information should be directed to Jose Villar at (
The Federal Energy Administration Act of 1974 (Pub. L. 93-275, 15 U.S.C. 761
EIA requests public comment on the discontinuation of the natural gas wellhead price data in an effort to reduce data and conceptual issues associated with the series.
Historically, the EIA published natural gas wellhead prices on an annual basis by state and on a monthly basis nationally. EIA has defined the wellhead price as the per-unit value at the mouth of the well (i.e., the wellhead price is considered to be the sales price obtainable from a third party in an arm's length transaction). These data appeared in the
EIA will terminate its natural gas wellhead price series in December 2012 in an effort to reduce data quality and conceptual issues associated with the series. The data quality issues associated with the wellhead price series are closely related to the data
Conceptual issues associated with the wellhead price also contribute to the data quality problems. The wellhead price is defined as the per-unit value of natural gas at the mouth of the well. However, in practice, the concept of the wellhead price is problematic as a result of the complexities of the long-term and short-term transactions that occur between natural gas producers, processors, marketers, and consumers along the natural gas value chain, as well as to the heterogeneity of natural gas production at the wellhead. The differing quality and thermal content of natural gas at the wellhead makes comparison of prices resulting from transactions across differing regions difficult because it is often unclear whether the gas in a given transaction contains marketable hydrocarbon liquids or unmarketable nonhydrocarbon gases. Natural gas production and revenue data supplied by the states is not sufficiently detailed for making these kinds of distinctions.
As an alternative upstream price, EIA has explored using spot or bidweek prices from established hubs, such as prices for natural gas at the Henry Hub in Louisiana and the prices of selected NGLs at the Mont Belvieu location in Texas. Natural gas spot price information could resolve some of the issues associated with obtaining upstream wellhead prices for natural gas because these prices result from transactions for pipeline quality gas, which is a well-defined, uniform commodity. In theory, a wellhead price could be derived from nearby spot prices, assuming that transportation, processing, and related costs are known or knowable. However, obtaining this kind of information about the natural gas value chain leading to the market hub would likely be burdensome, and EIA currently has no plans to undertake such an analysis. As a result, EIA has begun to publish natural gas spot prices at the Henry Hub and a composite NGL price, excluding liquids produced at crude oil refineries, at the Mont Belvieu market location.
Historically, EIA has estimated preliminary values for the monthly U.S. natural gas wellhead price using a time-series econometric model, which incorporates data from historical wellhead prices, the New York Mercantile Exchange (Nymex) futures final settlement price for near-month delivery at the Henry Hub, and reported spot market prices at four major trading hubs: Carthage, Texas; Katy, Texas; Waha, Texas; and El Paso non-Bondad, New Mexico (see
EIA proposes discontinuation of the wellhead price series because wellhead price data is not readily available and spot price information can provide a reasonable substitute. Further, obtaining wellhead price information would require a comprehensive study that could prove costly and burdensome to the public and seems impractical given current resource constraints. Absent a source of wellhead price information, EIA cannot objectively verify its model-based wellhead price estimates of the national average wellhead price. Finally, natural gas spot and bidweek prices, in conjunction with NGL spot prices, provide a reasonable proxy for upstream natural gas prices.
In September 2012, EIA began publishing the Henry Hub natural gas spot price and a Mont Belvieu NGL composite spot price in the
Section 13(b) of the Federal Energy Administration Act of 1974, Pub. L. 93-275, codified at 15 U.S.C. 772(b).
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of Georgia's request to revise certain of its EPA-authorized programs to allow electronic reporting.
EPA's approval is effective December 4, 2012.
Evi Huffer, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566-1697,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On April 16, 2012, the Georgia Department of Natural Resources (GA DNR) submitted an application titled “Network Discharge Monitoring Report (NetDMR)” electronic document receiving system for revision of its EPA-authorized programs under title 40 CFR. EPA reviewed GA DNR's request to revise its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for approval of authorized program revisions set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve Georgia's request for revision to its 40 CFR part 123- National Pollutant Discharge Elimination System (NPDES) State Program Requirements and part 403—General Pretreatment Regulations for Existing and New Sources of Pollution EPA-authorized programs for electronic reporting of information submitted under 40 CFR parts 122 and 403 is being published in the
GA DNR was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Office of Information Collection.
Notice of open meeting of the Advisory Committee of the Export-Import Bank of the United States (Ex-Im Bank).
Friday, December 14, 2012 from 9:00 a.m. to 12:30 p.m. The meeting will be held at the Export-Import Bank in Room 326, 811 Vermont Avenue NW., Washington, DC 20571.
The Advisory Committee was established November 30, 1983, to advise the Export-Import Bank on its programs and to provide comments for inclusion in the reports of the Export-Import Bank of the United States to Congress.
Agenda items include a briefing for new 2013 Advisory Committee members regarding bank programs (including programs that support textile exports) as well as competitiveness and ethics overview.
The meeting will be open to public participation, and the last 10 minutes will be set aside for oral questions or comments. Members of the public may also file written statement(s) before or after the meeting. If any person wishes auxiliary aids (such as a sign language interpreter) or other special accommodations, please contact, prior to December 14, 2012, Richard Thelen, 811 Vermont Avenue NW., Washington, DC 20571, Voice: (202) 565-3515 or TDD (202) 565-3377.
For further information, contact Richard Thelen, 811 Vermont Ave. NW., Washington, DC 20571, (202) 565-3515.
Federal Accounting Standards Advisory Board.
Notice.
The purpose of the meetings is to discuss issues related to:
Any interested person may attend the meetings as an observer. Board discussion and reviews are open to the public. GAO Building security requires advance notice of your attendance. Please notify FASAB of your planned attendance by calling 202-512-7350 at least one day prior to the respective meeting.
Wendy Payne, Executive Director, at (202) 512-7350.
Federal Advisory Committee Act, Public Law 92-463.
Federal Election Commission.
Thursday, December 6, 2012 at 10:00 a.m.
999 E Street NW., Washington, DC (Ninth Floor).
This meeting will be open to the public.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than December 19, 2012.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 28, 2012.
A. Federal Reserve Bank of San Francisco (Kenneth Binning, Vice President, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
1.
The Agency for Healthcare Research and Quality (AHRQ) announces the appointment of members to the AHRQ Senior Executive Service (SES) Performance Review Board (PRB). This action is being taken in accordance with 5 U.S.C. 4314(c)(4), which requires notice of appointment of members to performance review boards to be published in the
Members of the PRB are appointed in a manner that will ensure consistency, stability and objectivity in the SES performance appraisals. The function of the PRB is to make recommendations to the Director, AHRQ, relating to the performance of senior executives in the Agency.
The following persons will serve on the AHRQ SES Performance Review Board:
For further information about the AHRQ Performance Review Board, contact Ms. Alison Reinheimer, Office of Performance, Accountability, Resources, and Technology, Agency for Healthcare Research and Quality, 540 Gaither Road, Suite 4010, Rockville, Maryland 20850.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call (404) 639-7570 or send an email to
Formative Research and Tool Development—(OMB # 0920-0840, Exp. 1/31/2013)—Revision—National Center for HIV/AIDS, Viral Hepatitis, STD, TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention request approval for a revision and a 3 year approval for the previously approved Formative Research and Tool Development. This information collection request has been revised to include one additional type of formative research information collection activity, additional detail regarding the previously approved categories of formative research, and instrument testing for data collection activities used to inform many aspects of surveillance, communications, health promotion, and research project development for NCHHSTP's 4 priority diseases (HIV/AIDS, sexually transmitted diseases/infections (STD/STI), viral hepatitis, and tuberculosis elimination. Formative research is the basis for developing effective strategies including communication channels, for influencing behavior change. It helps researchers identify and understand the characteristics—interests, behaviors and needs—of target populations that influence their decisions and actions.
Formative research is integral in developing programs as well as improving existing and ongoing programs. Formative research also looks at the community in which a public health intervention is being or will be implemented and helps the project staff understand the interests, attributes and needs of different populations and persons in that community. Formative research is research that occurs before a program is designed and implemented, or while a program is being conducted.
Formative research is an integral part of developing programs or adapting programs that deal with the complexity of behaviors, social context, cultural identities, and health care that underlie the epidemiology of HIV/AIDS, viral hepatitis, STDs, and TB in the U.S.
CDC conducts formative research to develop public-sensitive communication messages and user friendly tools prior to developing or recommending interventions, or care. Sometimes these studies are entirely behavioral but most often they are cycles of interviews and focus groups designed to inform the development of a product.
Products from these formative research studies will be used for prevention of HIV/AIDS, Sexually Transmitted Infections (STI), viral Hepatitis, and Tuberculosis. Findings from these studies may also be presented as evidence to disease-specific National Advisory Committees, to support revisions to recommended prevention and intervention methods, as well as new recommendations.
Much of CDC's health communication takes place within campaigns that have fairly lengthy planning periods—timeframes that accommodate the standard Federal process for approving data collections. Short term qualitative interviewing and cognitive research techniques have previously proven invaluable in the development of scientifically valid and population-appropriate methods, interventions, and instruments.
This request includes studies investigating the utility and acceptability of proposed sampling and recruitment methods, intervention contents and delivery, questionnaire domains, individual questions, and interactions with project staff or electronic data collection equipment. These activities will also provide information about how respondents answer questions and ways in which question response bias and error can be reduced.
This request also includes collection of information from public health programs to assess needs related to initiation of a new program activity or expansion or changes in scope or implementation of existing program activities to adapt them to current needs. The information collected will be used to advise programs and provide capacity-building assistance tailored to identified needs.
Overall, these development activities are intended to provide information that will increase the success of the surveillance or research projects through increasing response rates and decreasing response error, thereby decreasing future data collection burden to the public. The studies that will be covered under this request will include one or more of the following investigational modalities: (1) structured and qualitative interviewing for surveillance, research, interventions and material development, (2) cognitive interviewing for development of specific data collection instruments, (3) methodological research (4) usability testing of technology-based instruments and materials, (5) field testing of new methodologies and materials, (6) investigation of mental models for health decision-making, to inform health communication messages, and (7) organizational needs assessment to support development of capacity. Respondents who will participate in individual and group interviews (qualitative, cognitive, and computer assisted development activities) are selected purposively from those who respond to recruitment advertisements.
In addition to utilizing advertisements for recruitment, respondents who will participate in research on survey methods may be selected purposively or systematically from within an ongoing surveillance or research project. Participation of respondents is voluntary. The total estimated burden is 55820 hours.
There is no cost to participants other than their time.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these requests, call (404) 639-7570 or send an email to
Field Evaluation of Prototype Kneel-assist Devices in Low-seam Mining (0920-0843, Expiration 1/31/2013)—Extension—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
NIOSH, under Public Law 91-596, Sections 20 and 22 (Section 20-22, Occupational Safety and Health Act of 1970) has the responsibility to conduct research relating to innovative methods, techniques, and approaches dealing with occupational safety and health problems.
According to the Mining Safety and Health Administration (MSHA) injury database, 227 knee injuries were reported in underground coal mining in 2007. With data from the National Institute for Occupational Safety and Health (NIOSH), it can be estimated that the financial burden of knee injuries was nearly three million dollars in 2007.
Typically, mine workers utilize kneepads to better distribute the pressures at the knee. The effectiveness of these kneepads was only recently investigated in a study by NIOSH that has not yet been published. The results of this study demonstrated that kneepads do decrease the maximum stress applied to the knee albeit not drastically. Additionally, the average pressure across the knee remains similar to the case where subjects wore no kneepads at all. Thus, the injury data and the results of this study suggest the need for the improved design of kneel-assist devices such as kneepads. NIOSH is currently undertaking the task of designing more effective kneel-assist devices such as a kneepad and a padded support worn at the ankle where mine workers can comfortably rest their body weight.
These devices must also be field tested to verify they do not result in body discomfort or inadvertent accidents. It is also important to determine how usable and durable these devices are in the harsh mining environment. In order to quantitatively demonstrate that these prototype devices are superior to their predecessors, mine workers using these prototypes must be interviewed. Their feedback will identify any necessary changes to the design of the devices such that NIOSH can ensure the prototypes will be well-accepted by the mining community.
To collect this type of information, a field study must be conducted where kneel-assist devices currently used in the mining industry (i.e. kneepads) are compared to the new prototype designs. The study suggested here would take approximately 13 months.
Phase I of this study will evaluate the prototype kneel-assist device by mine workers after being used for one month. Iterative changes will be made to the design based on the feedback obtained during Phase I. Data will be collected via interviews with individual mine workers and through a focus group where all mine workers come together to express their opinions about the devices. If the prototype kneel-assist devices do not appear to be successful, the data collected will be used to adequately redesign them and the above described process will begin again. If the prototype kneel-assist devices appear to be successful, Phase II of the study will commence.
Once Phase II of study is ready to commence, cooperating mines will be identified. Every month, the section foreman at the cooperating mines will be asked to supply some information regarding the current mine environment.
Initially, the mine workers will be given a control kneel-assist device. Currently, mine workers only utilize kneepads as a kneel-assist device. Therefore, only a control kneepad will be provided. They will then be asked some basic demographics information such as their age and time in the mining industry. Additional data will then be collected at 1, 3, and 6 months after the study commences. The mine workers will be asked to provide their feedback regarding factors such as body part discomfort, usability, durability, and ease of movement with respect to the control kneepad. After evaluating the control kneepad, mine workers will then be given the prototype kneel-assist device that was finalized in Phase I of the study. The same questions that were asked about the control kneepad will again be asked at 1, 3, and 6 months after usage begins of the prototype. Thus, Phase II of the study will last 12 months.
There will be no cost to the respondents other than their time. The total burden is 216.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-7570 and send comments to Ron Otten, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Laboratory Medicine Best Practices Project (LMBP), OMB Control Number 0920-0848, Expiration 5/31/2013—EXTENSION—Office of Surveillance, Epidemiology and Laboratory Services (OSELS), Centers for Disease Control and Prevention (CDC).
CDC is seeking approval from the Office of Management and Budget (OMB) to collect information from healthcare organizations in order to conduct systemic evidence reviews of laboratory practice effectiveness. The purpose of information collection is to include completed unpublished quality improvement studies/assessments carried out by healthcare organizations (laboratories, hospitals, clinics) in systematic reviews of practice effectiveness. CDC has been sponsoring the Laboratory Medicine Best Practices initiative to develop new systematic evidence reviews methods for making evidence-based recommendations in laboratory medicine. This initiative supports the CDC's mission of improving laboratory practices. The focus of the Initiative is on pre- and post-analytic laboratory medicine practices that are effective at improving health care quality. While evidence based approaches for decision-making have become standard in healthcare, this has been limited in laboratory medicine. No single-evidence-based model for recommending practices in laboratory medicine exists, although the number of laboratories operating in the United States and the volume of laboratory tests available certainly warrant such a model. The Laboratory Medicine Best Practices Initiative began in October 2006, when CDC convened the Laboratory Medicine Best Practices Workgroup (Workgroup), a multidisciplinary panel of experts in several fields including laboratory medicine, clinical medicine, health services research, and health care performance measurement. The Workgroup has been supported by staff at CDC and the Battelle Memorial Institute under contract to CDC. To date, the Laboratory Medicine Best Practices (LMBP) project work has been completed over three phases. During Phase 1 (October 2006-September 2007)of the project, CDC staff developed systematic review methods for conducting evidence reviews using published literature, and completed a proof-of-concept test. Results of an extensive search and review of published literature using the methods for the topic of patient specimen identification indicated that an insufficient quality and number of studies were available for completing systematic evidence reviews of laboratory medicine practice effectiveness for multiple practices, and hence for making evidence-based recommendations. These results were considered likely to be generalizable to most potential topic areas of interest. A finding from Phase 1 work was that laboratories would be unlikely to publish quality improvement projects or studies demonstrating practice effectiveness in the peer reviewed literature, but that they routinely
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-7570 and send comments to Ron Otten, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an email to
Comments are invited on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have a practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of information technology. Written comments should be received within 60 days of this notice.
School Dismissal Monitoring System (OMB Control No. 0920-0849 Exp. 5/31/2013)—Revision—National Center Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
In the spring of 2009, the beginning of H1N1 influenza pandemic, illness among school-aged students (K-12) in many states and cities resulted in at least 1,351 school dismissals due to rapidly increasing absenteeism among students or staff. These dismissals impacted at least 824,966 students and 53,217 teachers. During that time, the U.S. Department of Education (ED) and the Centers for Disease Control and Prevention (CDC) received numerous daily requests about the overall number of school dismissals nationwide and the number of students and teachers impacted by the school dismissals. CDC and ED recognized the importance of having a mechanism in place to collect this information and gauge the impact of school dismissals during the pandemic. Although an informal process was put in place in conjunction with ED to track school closures, there was no formal monitoring system established. Consequently, CDC and ED launched the School Dismissal Monitoring System to track reports of school closures during public health emergencies and generate accurate, real-time, national summary data daily on the number of closed schools and the number of students and teachers impacted by the dismissals. The system, initially approved under OMB Control No. 0920-0008, Emergency Epidemic Investigations, facilitated CDC's and ED's efforts to track implementation of CDC pandemic guidance, characterized factors associated with differences in morbidity and mortality due to pandemic influenza in the schools and surrounding communities, and described the characteristics of the schools experiencing outbreaks as well as control measures undertaken by those schools. In the fall of 2009, CDC's School Dismissal Monitoring System detected 1,947 school dismissals impacting approximately 623,616 students and 40,521 teachers nationwide. These data were used widely throughout the U.S. Government for situational awareness and specifically at CDC to assess the impact of CDC guidance and community mitigation efforts in response to the 2009 H1N1 influenza pandemic.
The purpose of this monitoring system is to generate accurate, real-time, national summary data daily on the number of school dismissals and the number of students and teachers impacted by the dismissals due to public health emergencies. This collection request includes dismissals initiated for infectious disease outbreaks or weather related events when school dismissals are recommended by federal, state or local public health authorities.
1. Determine the scope and extent of school dismissals in the United States during public health emergencies:
a. Prospectively monitor data to identify schools and school districts that have high dismissal rates due to infectious diseases, or that implement pre-emptive school dismissals due to other public health emergencies due to other reasons when recommended by public health officials.
b. Retrospectively review data collected to describe impact school dismissals had on students and teachers
2. Describe the characteristics of schools and school districts with high dismissal rates due to infectious diseases
Respondents are required to identify their respective institutions by providing non-sensitive information, to include the name and zip code of schools and school districts and their dates of closure, as well as reason for the dismissal (due to illness rates among students and staff or pre-emptive to slow the spread of infection). The respondents have the option of providing their position titles, phone number of the institution they represent, and email address. The estimates for burden hours are derived from the 627 total number of reported closures during the fall in 2009. We have multiplied that number by four as an estimate for a calendar year. Respondents are providing this information as public health and education officials and representatives of their agencies and organizations and not as private citizens. The data collection does not involve personally identifiable information and should have no impact on an individual's privacy. There are no costs to respondents other than their time.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-7570 and send comments to Ron Otten, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Prevalence Survey of Healthcare-Associated Infections (HAIs) and Antimicrobial Use in U.S. Acute Care Hospitals—Extension (0920-0852 expiration 5/31/13)—National Center for Emerging and Zoonotic Infectious Diseases, Centers for Disease Control and Prevention (CDC).
Preventing healthcare-associated infections (HAIs) is a CDC priority. An essential step in reducing the occurrence of HAIs is to estimate accurately the burden of these infections in U.S. hospitals, and to describe the types of HAIs and causative organisms. The scope and magnitude of HAIs in the United States were last directly estimated in the 1970s in which comprehensive data were collected from a sample of 338 hospitals; 5% of hospitalized patients acquired an infection not present at the time of admission. Because of the substantial resources necessary to conduct hospital-wide surveillance in an ongoing manner, most of the more than 4,500 hospitals now reporting to the CDC's current HAI surveillance system, the National Healthcare Safety Network (NHSN 0920-0666 expiration 1/31/15), focus instead on device-associated and procedure-associated infections in selected patient locations, and do not report data on all types of HAIs occurring hospital-wide. Periodic assessments of the magnitude and types of HAIs occurring in all patient populations within acute care hospitals are needed to inform decisions by local and national policy makers and by hospital infection control personnel regarding appropriate targets and strategies for HAI prevention.
In 2008-2009 in the previous project period, CDC developed a pilot protocol for a HAI point prevalence survey,
An extension of the prevalence survey's existing OMB approval is sought, to allow a repeat HAI and antimicrobial use prevalence survey to be performed in 2014. A repeat survey will allow further refinement of survey methodology and assessment of changes over time in prevalence, HAI distribution, and pathogen distribution. It will also allow for a re-assessment of the burden of antimicrobial use, at a time when antimicrobial stewardship is an area of active engagement in many acute care hospitals. The 2014 survey will be performed in a sample of up to 500 acute care hospitals, drawn from the acute care hospital populations in each of the 10 EIP sites (and including participation from many hospitals that participated in prior phases of the survey). Infection prevention personnel in participating hospitals and EIP site personnel will collect demographic and clinical data from the medical records of a sample of eligible patients in their hospitals on a single day in 2014, to identify CDC-defined HAIs. The surveys will provide data for CDC to make estimates of the prevalence of HAIs across this sample of U.S. hospitals as well as the distribution of infection types and causative organisms. These data can be used to work toward reducing and eliminating healthcare-associated infections—a Department of Health and Human Services (DHHS) Healthy People 2020 objective (
This survey assumes one respondent per hospital, a median of 75 patients per hospital, and average data collection time of 15 minutes per patient. There are no costs to respondents other than their time. The estimated annualized burden is 9,375 hours.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-7570 and send comments to Kimberly S. Lane, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Emerging Infections Program—New—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The Emerging Infections Programs (EIPs) are population-based centers of excellence established through a network of state health departments collaborating with academic institutions; local health departments; public health and clinical laboratories; infection control professionals; and healthcare providers. EIPs assist in local, state, and national efforts to prevent, control, and monitor the public health impact of infectious diseases. Various parts of the EIP have received separate Office of Management and Budget (OMB) clearances (Active Bacterial Core Surveillance [ABCs]—OMB number 0920-0802 and All Age Influenza Hospitalization Surveillance—OMB number 0920-0852); however this request seeks to have these core EIP activities under one clearance.
Activities of the EIPs fall into the following general categories: (1) Active surveillance; (2) applied public health epidemiologic and laboratory activities; (3) implementation and evaluation of pilot prevention/intervention projects; and (4) flexible response to public health emergencies. Activities of the
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-7570 and send comments to Ron Otten, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an email to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Application for Training (0920-0017, Expiration 03/31/2013)—Revision—Scientific Education and Professional Development Program Office (SEPDPO), Office of Surveillance, Epidemiology, and Laboratory Services (OSELS), Centers for Disease Control and Prevention (CDC).
CDC offers public health training activities to professionals worldwide. Employees of hospitals, universities, medical centers, laboratories, State and Federal agencies, and State and local health departments apply for training to learn up-to-date public health practices. CDC's training activities include laboratory training, classroom study, online training, and distance learning. CDC uses two training application forms, the Training and Continuing Education Online New Participant Registration Form and the National Laboratory Training Network Registration Form, to collect information necessary to manage and conduct training pertinent to the agency's mission.
CDC requests OMB approval to continue to collect information through
CDC is accredited by six different continuing education (CE) organizations to award CE: (1) The International Association for Continuing Education and Training (IACET) to provide Continuing Education Units (CEUs), (2) the Accreditation Council for Continuing Medical Education (ACCME) to provide Continuing Medical Education credits (CME), (3) the American Nurses Credentialing Center (ANNC) to provide Continuing Nurse Education credits (CNE), (4) the National Commission for Health Education Credentialing (NCHEC) to award CHES credit, (5) the Accreditation Council for Pharmacy Education (ACPE) to provide continuing pharmacy credit, and (6) the American Association of Veterinary State Boards to award Registry of Approved Continuing Education (RACE) credit. The accrediting organizations require a method of tracking participants who complete an educational activity and demographic data allows CDC to do so. Also, several of the organizations require a permanent record that includes the participant's name, address, and phone number, to facilitate retrieval of historical information about when a participant completed a course or several courses during a time period. This information provides the basis for a transcript or for determining whether a person is enrolled in more than one course. CDC uses the email address to verify the participant's electronic request for transcripts, verify course certificates, and send confirmation that a participant is registered for a course.
Tracking course attendance and meeting accrediting organizations' standards for reporting, require uniform standardized training application forms. The standardized data these forms request for laboratory training, classroom study, online training, and distance learning are not requested elsewhere. In other words, these forms do not duplicate requests for information from participants. Data are collected only once per course or once per new registration. The annual burden table has been updated to reflect an increase in distance learning to 6,792 burden hours; that is an average burden of 5 minutes per respondent. There is no cost to respondents other than their time.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
Based upon HHS' experience in the MLR data collection and evaluation process, HHS is updating its annual burden hour estimates to reflect the actual numbers of submissions, rebates and rebate notices. In addition, the notice requirement for issuers that do not owe rebates applied only to the 2011 reporting year, and does not apply to 2012 and subsequent MLR reporting years.
We have simplified the format of the reporting form and the method by which issuers submit their data. For the 2012 MLR reporting year, when submitting data to CMS, issuers will have the option to use either a Microsoft Excel (.xls) or a Comma Separated Value (.csv) file format. This will allow issuers flexibility and reduce the burden in submitting the MLR report. The new method will no longer include pre-calculated fields which will reduce the burden as well as the possibility of error.
The 2012 MLR Reporting Form and instructions also reflect changes for the 2012 reporting year and beyond that are set forth in the December 2011 Final Rule as to whether certain already reported expenditures such as ICD-10 conversion costs are taken into account in calculating an issuer's MLR.
HHS has created and published a host of electronic training tools to assist issuers with the preparation and submission of MLR data forms and Rebate calculations. Consequently the agency is reducing its current burden hours from 354,570 to 311,302.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by February 4, 2013:
1.
2.
Baltimore, Maryland 21244-1850.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance entitled “Investigational New Drug Applications for Positron Emission Tomography (PET) Drugs.” The guidance is intended to assist manufacturers of PET drugs in submitting investigational new drug applications (INDs).
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the guidance to
Kyong (Kaye) Kang, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 2352, Silver Spring, MD 20993-0002, 301-796-2050.
FDA is announcing the availability of a guidance entitled “Investigational New Drug Applications for Positron Emission Tomography (PET) Drugs.” The guidance summarizes the IND process for PET drugs, makes recommendations for how to submit an IND, provides advice on expanded access options for investigational PET drugs, and describes the process for requesting permission to charge for an investigational PET drug.
A draft guidance of the same title was announced in the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on the submission of INDs for PET drugs. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). INDs and requests to charge for a drug under an IND are submitted to FDA under part 312 (21 CFR part 312). New drug applications and abbreviated new drug applications are submitted to FDA under §§ 314.50 and 314.94 (21 CFR 314.50 and 314.94). The collections of information in part 312 and in §§ 314.50 and 314.94 have been approved under OMB control numbers 0910-0014 and 0910-0001.
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance entitled “FDA Oversight of PET Drug Products—Questions and Answers.” This guidance provides questions and answers that address nearly all aspects of the FDA approval and surveillance processes, including application submission, review, compliance with good manufacturing practices, inspections, registration and listing, and user fees.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the guidance to
Elizabeth Giaquinto, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6164, Silver Spring, MD 20993-0002, 301-796-3416.
FDA is announcing the availability of a guidance entitled “FDA Oversight of PET Drug Products—Questions and Answers.” In 1997, Congress passed the Food and Drug Administration Modernization Act (the Modernization Act) (Public Law 105-115). Section 121 of the Modernization Act directed FDA to establish appropriate approval procedures and current good manufacturing practices (CGMP) for PET drugs. The procedures were finalized and an implementation timeline was instituted on December 10, 2009, when FDA published regulations that described the minimum CGMP standards that each PET drug manufacturer is to follow during the production of a PET drug (see part 212 (21 CFR part 212)).
Recognizing that many PET drug producers are unfamiliar with the drug approval process, FDA issued several guidance documents specific to PET drug producers
A draft guidance of the same title was announced in the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on the FDA oversight of PET drugs. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 314 were approved under OMB control numbers 0910-0001 and 0910-0338; the collections of information in 21 CFR part 312 were approved under OMB control number 0910-0014; the collections of information in part 212 were approved under OMB control number 0910-0667; the collections of information in 21 CFR parts 210 and 211 were approved under 0910-0139; and the collections of information in 21 CFR part 207 were approved under OMB control number 0910-0045. The guidance also refers to collections of information associated with submitting Form FDA 3397 (Prescription Drug User Fee Cover Sheet), approved under OMB control number 0910-0297.
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice of public hearing; request for comments; correction.
The Food and Drug Administration (FDA) is correcting a document that appeared in the
Lee Lemley, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave. Silver Spring, MD 20903, 301-796-3441, Fax: 301-847-8753, email:
In the
1. On page 69863, in the second column, under
2. On page 69863, in the third column, under
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting that any industry organization interested in participating in the selection of nonvoting industry representatives to serve on the Device Good Manufacturing Practice Advisory Committee (DGMPAC) in the Center for Devices and Radiological Health notify FDA in writing. A nominee may either be self-nominated or nominated by an organization to serve as a nonvoting industry representative. Nominations will be accepted for current vacancies effective with this notice.
Any industry organizations interested in participating in the selection of an appropriate nonvoting members to represent industry interests must send a letter stating that interest to FDA by January 3, 2013, for the vacancies listed in this notice. Concurrently, nomination materials for prospective candidates should be sent to FDA by January 3, 2013.
All letters of interest and nominations should be submitted in writing to Margaret J. Ames (see
Margaret J. Ames, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5234, Silver Spring, MD 20993, 301-796-5960,
Section 520 of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 360j), as amended, provides that the DGMPAC shall be composed of two representatives of interests of the device manufacturing industry. The Agency is requesting nominations for nonvoting industry representatives on the DGMPAC.
Review proposed regulations issuance regarding good manufacturing practices governing the methods used in, and the facilities and controls used for manufacture, packaging, storage, installation, and servicing of devices, and make recommendations regarding the feasibility and reasonableness of those proposed regulations. The committee also reviews and makes recommendations on proposed guidelines developed to assist the medical device industry in meeting the good manufacturing practice requirements, and provides advice with regard to any petition submitted by a manufacturer for an exemption or variance from good manufacturing practice regulations.
Persons nominated for the DGMPAC should possess appropriate qualifications to understand and contribute to the committee's work as described in the committee's function.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent industry interests should send a letter stating that interest to the FDA contact (see
Individuals may self nominate and/or an organization may nominate one or more individuals to serve as a nonvoting industry representative. Contact information, a current curriculum vitae, and the name of the committee of interest should be sent to the FDA contact person (see
FDA seeks to include the views of women and men, members of all racial and ethnic groups, and individuals with and without disabilities on its advisory committees, and therefore encourages nominations of appropriately qualified candidates from these groups. Specifically, in this document, nominations for nonvoting representatives of industry interests are encouraged from device manufacturing industry.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14 relating to advisory committees.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Section 1926 of the Public Health Service Act [42 U.S.C. 300x-26] stipulates that funding Substance Abuse Prevention and Treatment Block Grant (SABG) agreements for alcohol and drug abuse programs for fiscal year 1994 and subsequent fiscal years require states to have in effect a law providing that it is unlawful for any manufacturer, retailer, or distributor of tobacco products to sell or distribute any such product to any individual under the age of 18. This section further requires that states conduct annual, random, unannounced inspections to ensure compliance with the law; that the state submit annually a report describing the results of the inspections, the activities carried out by the state to enforce the required law, the success the state has achieved in reducing the availability of tobacco products to individuals under the age of 18, and the strategies to be utilized by the state for enforcing such law during the fiscal year for which the grant is sought.
Before making an award to a State under the SABG, the Secretary must make a determination that the state has maintained compliance with these requirements. If a determination is made that the state is not in compliance, penalties shall be applied. Penalties ranged from 10 percent of the Block Grant in applicable year 1 (FFY 1997 SABG Applications) to 40 percent in applicable year 4 (FFY 2000 SABG Applications) and subsequent years. Respondents include the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands.
Regulations that implement this legislation are at 45 CFR 96.130, are approved by OMB under control number 0930-0163, and require that each state submit an annual Synar report to the Secretary describing their progress in complying with section 1926 of the PHS Act. The Synar report, due December 31 following the fiscal year for which the state is reporting, describes the results of the inspections and the activities carried out by the state to enforce the required law; the success the state has achieved in reducing the availability of tobacco products to individuals under the age of 18; and the strategies to be utilized by the state for enforcing such law during the fiscal year for which the grant is sought. SAMHSA's Center for Substance Abuse Prevention will request OMB approval of revisions to the current report format associated with Section 1926 (42 U.S.C. 300x-26). The report format is not changing significantly. Any changes in either formatting or content are being made to simplify the reporting process for the states and to clarify the information as the states report it; both outcomes will facilitate consistent, credible, and efficient monitoring of Synar compliance across the states. All of the information required in the new report format is already being collected by the states. Specific changes are listed below:
To decrease the need for supplemental questions and reporting,
In Section I (Compliance Progress), the following clarification changes are being made with respect to the Annual Synar Report:
In Section II (Intended Use), the following clarification change is being made:
In Appendix B (Synar Survey Sampling Methodology), the following clarification is being made:
In Appendix C (Synar Survey Inspection Protocol), the following change is being made:
The content of the Synar Report has changed little. The content changes that have been made address the need to (1) clarify the intent of information requested via the addition of clarifying questions, (2) reduce the need for Government Project Officers to ask additional questions to supplement the originally submitted Report. These additions and changes are essential to SAMHSA's ability to adequately assess state and jurisdictional compliance with the Synar regulation.
In Section I (Compliance Progress), the following changes are being made with respect to the Annual Synar Report:
In Appendix B (Synar Survey Sampling Methodology), the following changes are being made:
In Appendix C (Synar Survey Inspection Protocol), the following change is being made:
There are no changes to Forms 1-5 or Appendix D.
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 2-1057, One Choke Cherry Road, Rockville, MD 20857
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Deputy Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Dated: November 14, 2012.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of New Jersey (FEMA-3354-EM), dated October 28, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this emergency is closed effective November 8, 2012.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Connecticut (FEMA-3353-EM), dated October 28, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this emergency is closed effective November 8, 2012.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of Maryland (FEMA-3349-EM), dated October 28, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this emergency is closed effective November 8, 2012.
(The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.)
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the Commonwealth of Virginia (FEMA-3359-EM), dated October 29, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency
Notice is hereby given that the incident period for this emergency is closed effective November 1, 2012.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of West Virginia (FEMA-3358-EM), dated October 29, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this emergency is closed effective November 8, 2012.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of New York (FEMA-3351-EM), dated October 28, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this emergency is closed effective November 8, 2012.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of New York (FEMA-4085-DR), dated October 30, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this disaster is closed effective November 8, 2012.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Connecticut (FEMA-4087-DR), dated October 30, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Connecticut is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 30, 2012.
Fairfield, Middlesex, New Haven, and New London Counties and the Mashantucket Pequot Tribal Nation and Mohegan Tribal Nation located within New London County for Public Assistance [Categories C-G] (already designated for Public Assistance [Categories A and B], including direct federal assistance).
Litchfield, Tolland, and Windham Counties for Public Assistance, including direct federal assistance.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Connecticut (FEMA-4087-DR), dated October 30, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this disaster is closed effective November 8, 2012.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of New Jersey (FEMA-4086-DR), dated October 30, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this disaster is closed effective November 8, 2012.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Maryland (FEMA-4091-DR), dated November 20, 2012, and related determinations.
Peggy Miller, Office of Response and Recovery, Federal Emergency
Notice is hereby given that, in a letter dated November 20, 2012, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Maryland resulting from Hurricane Sandy during the period of October 26 to November 4, 2012, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Michael J. Lapinski, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Maryland have been designated as adversely affected by this major disaster:
Allegany, Calvert, Caroline, Charles, Dorchester, Frederick, Garrett, Harford, Howard, Kent, Queen Anne's, Somerset, St. Mary's, Talbot, Washington, Wicomico, and Worcester Counties and the Independent City of Baltimore for Public Assistance.
All counties and the Independent City of Baltimore within the State of Maryland are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Department of the Interior.
Notice of Secretary's Order 3324.
Secretary's Order 3324 revises and supersedes the Order of the Secretary of the Interior, dated October 28, 1986 (51 FR 39425), and corrected on August 26, 1987 (52 FR 32171), and provides procedures and guidelines for more orderly co-development of oil and gas and potash deposits owned by the United States within the Designated Potash Area through safe, concurrent operations.
Tony Herrell; telephone 505-954-2222; 301 Dinosaur Trail, Santa Fe, New Mexico 87508; email:
Secretary's Order 3324 reads as follows:
a.
b.
c.
(1) Extending outward a certain distance from the perimeter of existing underground open mine workings within which oil or gas operations are generally not allowed due to a BLM determination that oil or gas drilling could constitute a hazard to or interfere with orderly potash mining operations, or
(2) Extending outward a certain distance from operating oil or gas well(s) or established Drilling Islands within which potash operations are generally not allowed due to a BLM determination that potash mining or exploration operations could constitute a hazard to or interfere with orderly oil or gas operations.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
a.
(1) Drilling for oil and gas shall be permitted only in the event that the lessee establishes to the satisfaction of the Authorized Officer, BLM, that such drilling will not
(2) No wells shall be drilled for oil or gas at a location which, in the opinion of the Authorized Officer, would result in undue waste of potash deposits or constitute a hazard to or unduly interfere with mining operations being conducted for the extraction of potash deposits.
(3) When the Authorized Officer determines that unitization is necessary for orderly oil and gas development and proper protection of potash deposits, no well shall be drilled for oil or gas except pursuant to a unit plan approved by the Authorized Officer.
(4) The drilling or the abandonment of any well on said lease shall be done in accordance with applicable oil and gas operating regulations (43 CFR 3160), including such requirements as the Authorized Officer may prescribe as necessary to prevent the infiltration of oil, gas, or water into formations containing potash deposits or into mines or workings being utilized in the extraction of such deposits. In addition, the Authorized Officer will include a lease provision which states that drilling for and production of oil and gas will be subject to the terms of this Order, any subsequent revisions, and the orders of the Authorized Officer thereunder.
b.
c.
(1) All potash permits, licenses, and leases hereafter issued or existing potash leases hereafter readjusted for Federal lands within the Designated Potash Area, must be subject to a requirement, either to be included in the lease, license, or permit or imposed as a stipulation, that no mining or exploration operations may be conducted that, in the opinion of the Authorized Officer, will constitute a hazard to oil or gas production, or that will unreasonably interfere with orderly development and production under any oil and gas lease issued for the same lands.
(2) BLM will continue to include applicable due diligence stipulations in all potash leases issued or readjusted after the date of this Order.
(3) Before being allowed to participate in a competitive lease sale, all bidders must certify in writing that they have an identifiable, substantial, and genuine interest in developing the potash resources and that they intend to develop the potash resources in accordance with the applicable diligence stipulations.
(4) In addition, the Authorized Officer will include a lease provision providing that potash mining operations will be subject to the terms of this Order, any subsequent revisions, and the orders of the Authorized Officer thereunder.
d.
(1) Those areas where active mining operations are currently in progress in one or more ore zones;
(2) Those areas where operations have been completed in one or more ore zones;
(3) Those areas that are not presently being mined which are considered to contain Measured Reserves in one or more ore zones;
(4) Those areas that are not presently being mined which are considered to contain Indicated Resources in one or more ore zones;
(5) Those areas that are not presently being mined which are considered to contain Inferred Resources in one or more ore zones;
(6) Those areas that are considered to be Barren Areas;
(7) Those areas that are Unknown Areas; and
(8) Those areas that are planned to be mined as per a three-year mine plan.
(9) The Authorized Officer will annually review the information submitted under this requirement and make any revisions to the boundaries of Measured Reserves, Indicated Resources, Inferred Resources, Barren Areas, and Unknown Areas. Upon verification, the Authorized Officer will commit the initial findings to a map(s) of suitable scale and will thereafter revise that map(s) as necessary to reflect the latest available information.
e.
(1) Drilling within the Designated Potash Area. It is the intent of the Department of the Interior to administer oil and gas operations throughout the Designated Potash Area in a manner which promotes safe, orderly co-development of oil and gas and potash resources. It is the policy of the Department of the Interior to deny approval of most applications for permits to drill oil and gas wells from surface locations within the Designated Potash Area. Three exceptions to this policy will be permitted if the drilling will occur under the following conditions from:
(a) A Drilling Island associated with a Development Area established under this Order or a Drilling Island established under a prior Order;
(b) A Barren Area and the Authorized Officer determines that such operations will not adversely affect active or planned potash mining operations in the immediate vicinity of the proposed drill-site; or
(c) A Drilling Island, not covered by (a) above, or single well site established under this Order by the approval and in the sole discretion of the Authorized Officer, provided that such site was jointly recommended to the Authorized Officer by the oil and gas lessee(s) and the nearest potash lessee(s).
(2) Development Areas.
(a) When processing an application for permit to drill (APD) an oil or gas well in the Designated Potash Area that complies with regulatory requirements, the Authorized Officer will determine whether to establish a Development Area in connection with the application, and if so, will determine the boundaries of the Development Area and the location within the Development Area of one or more Drilling Islands from which drilling will be permitted. The BLM may also designate a Development Area outside of the APD process based on information in its possession, and may modify the boundaries of a Development Area. Existing wells may be included within the boundaries of a Development Area. A Development Area may include Federal oil and gas leases and other Federal and non-Federal lands.
(b) After designating or modifying a Development Area, the BLM will issue a Notice to Lessees, consistent with its authorities under 43 CFR subpart 3105 and part 3180, informing lessees that future drilling on lands under an oil and gas lease within that Development Area will:
(i) Occur, under most circumstances, from a Barren Area or a Drilling Island within the Development Area; and
(ii) Be managed under a unit or communitization agreement, generally by a single operator, consistent with BLM regulations and this Order. Unit and communitization agreements will be negotiated among lessees. The BLM will consider whether a specific plan of development is necessary or advisable for a particular Drilling Island.
(c) The Authorized Officer reserves the right to approve an operator or successor operator of a Development Area and/or a Drilling Island, if applicable, to ensure that the operator has the resources to operate and extract the oil and gas resources consistent with the requirements of this Order and all applicable laws and regulations, and has provided financial assurance in the amount required by the Authorized Officer.
(d) The Authorized Officer will determine the appropriate designation of a Development Area in terms of location, shape, and size. In most cases, a single Drilling Island will be established for each Development Area. In establishing the location, shape, and size of a Development Area and an associated Drilling Island, the Authorized Officer will consider:
(i) The appropriate location, shape, and size of a Development Area and associated Drilling Island to allow effective extraction of oil and gas resources while managing the impact on potash resources;
(ii) The application of available oil and gas drilling and production technology in the Permian Basin;
(iii) The applicable geology of the Designated Potash Area and optimal locations to minimize loss of potash ore while considering co-development of both resources;
(iv) Any long term exploration and/or mining plans provided by the potash industry;
(v) Whether a Barren Area may be the most appropriate area for a Drilling Island;
(vi) The requirements of this Order; and
(vii) Any other relevant factors.
(e) As the Authorized Officer establishes a Development Area, the Authorized Officer will more strictly apply the factors listed in Section 6.e.(2)(d), especially the appropriate application of the available oil and gas drilling and production technology in the Permian Basin, when closer to current traditional (non-solution) potash mining operations. Greater flexibility in the application of the factors listed in Section 6.e.(2)(d) will be applied further from current and near-term traditional (non-solution) potash mining operations. No Drilling Islands will be established within one mile of any area where approved potash mining operations will be conducted within 3 years consistent with the 3-year mine plan referenced above (Section 6.d.(8)) without the consent of the affected potash lessee(s).
(f) The Authorized Officer may establish a Development Area associated with a well or wells drilled from a Barren Area as appropriate and necessary.
(g) As part of the consideration for establishing Development Areas and Drilling Islands, the BLM will consider input from the potash lessees and the oil and gas lessees or mineral right owners who would be potentially subject to a unitization agreement supporting the Development Area, provided that the input is given timely.
(3) Buffer Zones. Buffer Zones of
(4) Unitization and Communitization. To more properly conserve the potash and oil and gas resources in the Designated Potash Area and to adequately protect the rights of all parties in interest, including the United States, it is the policy of the Department of the Interior that all Federal oil and gas leases within a Development Area should be unitized or subject to an
(5) Coordination with the State of New Mexico.
(a) If the effective operation of any Development Area requires that the New Mexico Oil Conservation Division (NMOCD) revise the state's mandatory well spacing requirements, the BLM will participate as needed in such a process. The BLM may adopt the NMOCD spacing requirements and require lessees to enter into communitization agreements based on those requirements.
(b) The BLM will cooperate with the NMOCD in the implementation of that agency's rules and regulations.
(c) In taking any action under Section 6.e. of this Order, the Authorized Officer will take into consideration the applicable rules and regulations of the NMOCD.
(6) Approvals of Exploration on Existing Potash Leases and Potash Exploration Licenses.
(a) Exploration for potash on lands leased for potash is permitted only with approval by the BLM, in consultation and coordination with the potash lessee, of an exploration plan in accordance with 43 CFR subpart 3592 and subject to the terms and conditions of the potash lease.
(b) An oil and gas or potash operator may apply for an exploration license to drill core holes necessary to define the absence or existence and extent of mineable potash reserves in areas within the Designated Potash Area. Exploration licenses allow the exploration of known, unleased mineral deposits to obtain geologic, environmental, and other pertinent data concerning the deposit. See 43 CFR subpart 3506. These licenses can be obtained from the Carlsbad Field Office, BLM. Costs for such exploration may be shared consistent with the provisions of 43 CFR 3506.14, if applicable.
(c) Should an oil and gas or potash operator desire to attempt to gather sufficient data for the BLM to establish a Barren Area in any part of the Designated Potash Area not defined as Barren, provisions and protocols are included in this Order for the operator to review relevant data in the area to design a core acquisition program (see Section 6.e.(8)(b) and (c) of this Order) and to obtain access to the land to acquire core data (see Section 6.e.(6)(b)). The BLM will develop and employ, as appropriate, data management protocols to protect the appropriate use of the data in its records. The BLM will use such newly acquired data to determine the resulting potash ore quality and make any changes to potash reserves and resources maps indicated by the new data.
(7) Notice to Affected Parties. An applicant for an Application for Permit to Drill (APD), or a proponent of a plan of development for a unit or communitization area or a proposal for a Development Area or a Drilling Island, will provide notice of the application, plan, or proposal to the potash lessees and potash operators in the Designated Potash Area and to the owners of the oil and gas rights and surface owners affected by such application, plan, or proposal. A list of current potash lessees and potash operators will be available and maintained by the Carlsbad Field Office, BLM. The BLM will assist to the extent possible in identifying the oil and gas and surface owners affected by the application, plan, or proposal. This notice should be prior to or concurrent with the submission of the application, plan, or proposal to the BLM. The BLM will not authorize any action prior to this notice.
(8) Access to Maps and Surveys.
(a) Well records and survey plats that an oil and gas lessee is required to file pursuant to applicable operating regulations (43 CFR subpart 3160) will be available for inspection at the Carlsbad Field Office, BLM, by any party holding a potash permit or lease on the lands on which the well is situated insofar as such records are pertinent to the mining and protection of potash deposits.
(b) Maps of mine workings and surface installations and records of core analyses that a potash lessee is required to file pursuant to applicable operating regulations (43 CFR 3590) will be available for inspection at the Carlsbad Field Office, BLM. These records are available for viewing by any party holding an oil and gas lease on the same lands insofar as such records are pertinent to the development and protection of oil and gas deposits.
(c) In order for an oil and gas or potash operator to establish and design a core acquisition program for the purposes of proving a Barren Area, those records of core analyses in the area of the planned program that are necessary to design that program should be provided in a timely fashion by the BLM to the operator of the planned program to the extent allowed by law, subject to data management protocols as referenced in Section 6.e.(6)(c), and consistent with 43 CFR part 2 and Sections 3503.41-.43. The BLM will use all data available to it when delineating Barren Areas.
(d) Maps of potash reserves and resources prepared under the provisions of Section 6.d. will be available for inspection in the Carlsbad Field Office, BLM. Digital copies of these maps will be available by mail or at these offices by May 1 of each year. Maps of established Development Areas will be updated as new Development Areas are established. Maps of Development Areas will be provided in a timely fashion by the BLM upon request.
a. This Order applies to the exercise of all existing leases in the Designated Potash Area in conformity with lease stipulations and Federal law.
b. Except to the extent otherwise provided by this Order, the regulations contained in 43 CFR part 3100 and subparts 3160 and 3180 (governing the leasing and development of oil and gas) and 43 CFR part 3500 and subpart 3590 (governing the leasing and development of potash deposits), remain applicable to the lands covered by this Order.
c. In implementing this Order, the BLM is authorized to exercise its discretion through any and all appropriate means, including rulemaking, notices to lessees, and orders of the Authorized Officer.
d. The BLM will obtain and use the best science available when administering this Order consistent with Departmental Manual chapters 305 DM 2 and 305 DM 3. The BLM will comply with the requirements of Secretary's Order 3305, Ensuring Scientific Integrity within the Department of the Interior, dated, September 29, 2010. The BLM has previously used Sandia National Laboratories to provide unbiased technical assistance in administering the Designated Potash Area and may continue to do so, if the BLM, consistent with all applicable laws, so chooses.
e. The BLM will develop guidelines consistent with this Order for establishing Development Areas and
f. The BLM will develop appropriate time-frame guidelines and requirements, as appropriate, to enable timely actions pursuant to this Order.
The area described, including public and non-public lands, aggregates 497,002.03 acres, more or less.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comment.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (Act) prohibits activities with endangered and threatened species unless a Federal permit allows such activity. The Act also requires that we invite public comment before issuing these permits.
Comments on these permit applications must be received on or before January 3, 2013.
Written data or comments should be submitted to the Endangered Species Program Manager, U.S. Fish and Wildlife Service, Region 8, 2800 Cottage Way, Room W-2606, Sacramento, CA 95825 (telephone: 916-414-6464; fax: 916-414-6486). Please refer to the respective permit number for each application when submitting comments.
Daniel Marquez, Fish and Wildlife Biologist; see
The following applicants have applied for scientific research permits to conduct certain activities with endangered species under section 10(a)(1)(A) of the Act (16 U.S.C. 1531 et seq.). We seek review and comment from local, State, and Federal agencies and the public on the following permit requests.
The applicant requests a permit to take (capture, handle, mark, salvage, and release) the island night lizard (
The applicant requests a permit to take (capture, collect, and collect vouchers) the Conservancy fairy shrimp (
The applicant requests an amendment to a permit to take (to restore and enhance habitat) for the California tiger salamander (Santa Barbara County DPS) (
The applicant requests an amendment to a permit to take (survey, capture, handle, and release) the giant kangaroo
The applicant requests a permit renewal to take (capture, collect, and collect vouchers) the Conservancy fairy shrimp (
The applicant requests a permit to take (survey, capture, handle, and release) the arroyo toad (=arroyo southwestern) (
The applicant requests a permit renewal to take (survey, capture, handle, and release) the tidewater goby (
The applicant requests a permit renewal to take (capture, collect, and collect vouchers) the Riverside fairy shrimp (
The applicant requests a permit renewal to take (capture, collect, and collect vouchers) the Conservancy fairy shrimp (
The applicant requests a permit renewal to take (survey by pursuit) the Quino checkerspot butterfly (
The applicant requests an amendment to a permit to take (locate, capture, handle, measure, release, and relocate) the Morro shoulderband snail (
The applicant requests a permit renewal to take (locate, capture, handle, and release) the Morro shoulderband snail (
The applicant requests a permit to take (survey, locate, and monitor nests) the California least tern (
The applicant requests a permit to take (capture, collect, and collect vouchers) the Conservancy fairy shrimp (
The applicant requests a permit renewal to take (capture, collect, and collect vouchers) the Conservancy fairy shrimp (
The applicant requests a permit to take (survey, locate and monitor nests) the California least tern (
The applicant requests a permit to take (survey, locate and monitor nests) the California least tern (
The applicant requests an amendment to a permit to take (harass by survey) the California clapper rail (
The applicant requests a permit to take (capture, collect, and collect vouchers) the Conservancy fairy shrimp (
The applicant requests a permit renewal to take (harass by survey, capture, handle, mark, and release) the San Francisco garter snake (
We invite public review and comment on each of these recovery permit applications. Comments and materials we receive will be available for public inspection, by appointment, during normal business hours at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Fish and Wildlife Service, Interior.
Notice of meeting.
The North American Wetlands Conservation Council (Council) will meet to select North American Wetlands Conservation Act (NAWCA) grant proposals for recommendation to the Migratory Bird Conservation Commission (Commission). This meeting is open to the public, and interested persons may present oral or written statements.
The Council meeting will be held at the National Fish and Wildlife Foundation, 1133 15th Street Suite 1100, Washington, DC 20005.
Cynthia Perry, Council Coordinator, by phone at (703) 358-2432; by email at
In accordance with NAWCA (Pub. L. 101-233, 103 Stat. 1968, December 13, 1989, as amended), the State-private-Federal Council meets to consider wetland acquisition, restoration, enhancement, and management projects for recommendation to, and final funding approval by, the Commission. Project proposal due dates, application instructions, and eligibility requirements are available on the NAWCA Web site at
Proposals require a minimum of 50 percent non-Federal matching funds. If you are interested in presenting information at this public meeting, contact the Council Coordinator no later than the date under
The Council will consider U.S. standard grant proposals at the meeting announced in
If you wish to:
Attend the Council meeting, you must contact the Council Coordinator (see
Submit written information or questions before the Council meeting for consideration during the meeting November 26, 2012.
Give an oral presentation during the Council meeting November 26, 2012.
Interested members of the public may submit relevant information or questions for the Council to consider during the public meeting. If you wish to submit a written statement, so that the information may be made available to the Council for their consideration prior to this meeting, you must contact the Council Coordinator by the date
Individuals or groups requesting to make an oral presentation at the Council meeting will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Interested parties should contact the Council Coordinator by the date above, in writing (preferably via email; see
Summary minutes of the Council and meeting will be maintained by the Council Coordinator at the address under
U.S. Geological Survey (USGS), Interior.
Notice of an extension of currently approved information Collection, 1028-0103.
To comply with the Paperwork Reduction Act of 1995 (PRA), the U.S. Geological Survey (USGS) is inviting comments on an information collection request (ICR) that we have sent to the Office of Management and Budget (OMB) for review and approval. The ICR concerns the paperwork requirements for the
Submit written comments by January 3, 2013.
Please submit comments on this information collection directly to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, Attention: Desk Officer for the Department of the Interior via email: (
Jake F. Weltzin, Ecologist, U.S. Geological Survey,
Bureau of Land Management, Interior.
Notice.
Members of the public are hereby invited to participate with Ambre Energy on a pro rata cost sharing basis in a program for the exploration of coal deposits owned by the United States of America in lands located in Big Horn County, Montana, encompassing 9,474.45 acres.
Any party seeking to participate in this exploration program must send written notice to both the Bureau of Land Management (BLM) and Ambre Energy as provided in the
The proposed exploration license and plan are available for review from 9 a.m. to 4 p.m., Monday through Friday, in the public room at the BLM Montana State Office, 5001 Southgate Drive, Billings, Montana.
A written notice to participate in the exploration licenses should be sent to the State Director, BLM Montana State Office, 5001 Southgate Drive, Billings, MT 59101 and Ambre Energy, 170 South Main Street, Suite 700, Salt Lake City, UT 84101.
Robert Giovanini by telephone at 406-896-5084 or by email at
The exploration activities will be performed pursuant to the Mineral Leasing Act of 1920, as amended, 30 U.S.C. 201(b), and to the regulations at 43 CFR part 3410. The purpose of the exploration program is to gain additional geologic knowledge of the coal underlying the exploration area for the purpose of assessing the coal resources. The exploration program is fully described and will be conducted pursuant to an exploration license and plan approved by the BLM. The exploration plan may be modified to accommodate the legitimate exploration needs of persons seeking to participate.
The lands to be explored for coal deposits in exploration license MTM 103852 are described as follows:
Containing 9,474.45 acres.
The Federal coal within the lands described for exploration license MTM 103852 is currently unleased for development of Federal coal reserves.
Bureau of Land Management, Interior.
Notice of availability.
Under the authority of the Mineral Leasing Act, as amended, on December 3, 2012 the Secretary of the Interior issued Order 3324 (2012 Secretary's Order) to address oil, gas, and potash leasing and development within the Designated Potash Area in Eddy and Lea counties in New Mexico. The 2012 Secretary's Order supersedes a previous Order issued in 1986 and corrected in 1987 that addresses these issues. In developing the 2012 Secretary's Order, a draft Order was released for a public comment period that began on July 13, 2012 and ended
Secretary's Order 3324 was published in the
The comments that were received, the comment responses, and the Environmental Assessment are available for review at the following Web site:
Tony Herrell; telephone 505-954-2222; 301 Dinosaur Trail, Santa Fe, New Mexico 87508; email:
An area near the town of Carlsbad in southeastern New Mexico contains large deposits of potash, oil, and gas. Oil and gas have been produced from this area since the early twentieth century. In 1925, potash (potassium-bearing salts primarily used for fertilizer) was discovered in this area and has been mined since 1930.
The Secretary issued the first Potash Order in 1939 (4 FR 1012, February 25, 1939). That Order withdrew approximately 43,000 acres of public land from oil and gas leasing to protect potash deposits. In 1951, the Secretary revoked the 1939 Order and issued a new Order authorizing concurrent development of oil and gas and potash reserves within an area comprising 298,345 acres under reciprocal lease stipulations to ensure that the development of either mineral would not interfere with development of the other (16 FR 10669, October 18, 1951). The Order was amended in 1965 (30 FR 6692, May 15, 1965), 1975 (40 FR 51486, November 5, 1975), and 1986 (51 FR 39425, October 28, 1986). A correction to the 1986 Order was issued in 1987 (52 FR 32171, August 26, 1987). The potash area designated by the corrected 1986 Order comprises approximately 497,000 acres, and the 2012 Secretary's Order, published on December 4, 2012, does not alter the boundaries of the area.
The potash deposits in this area occur from 800 feet to over 2,000 feet beneath the surface and are mined by both conventional and solution mining methods; conventional methods require miners to be underground. The oil and gas in the area is found in formations below the potash-bearing formations, so oil and gas wells must extend through potash formations. If potash mining were to breach a well casing, or if a well casing near a potash mine failed for other reasons, gas could migrate into the mine workings, thus endangering the miners. Additionally, the potential for such a breach could raise the costs of potash mining due to the need to utilize enhanced ventilation techniques and specialized equipment needed to mine in a gas-filled environment. Given these safety risks, it has been a challenge to produce potash and oil and gas at the same time in the same area. This challenge has led to a long history of conflict between the potash and the oil and gas industries.
This conflict has resulted in a great deal of litigation regarding decisions made by the BLM on a variety of potash or oil and gas development applications. Nevertheless, leading members of the two industries have initiated efforts to work together over the past 2 years. A number of productive meetings and discussions have occurred among many of the parties involved in these previous disputes. Additionally, there have been significant advances in the technology of oil and gas drilling that could be used to reduce the conflict between such drilling and the extraction of potash. Further, the economic outlook for both the oil and gas industry and the potash industry has recently improved. The BLM has also worked with Sandia National Laboratories to investigate well-logging technology, gas migration in the potash formations, and standards to use for estimating the mineability of potash and potash cutoff grades. These circumstances led to review of the 1986 Secretary's Order.
The 2012 Secretary's Order differs from the 1986 Order as described below.
The 2012 Secretary's Order authorizes the BLM to establish “Development Areas” where oil and gas wells can be drilled from one or more “Drilling Islands.” The Drilling Island concept was first introduced in the 1975 Secretary's Order. In most cases, a single Drilling Island will be established for each Development Area, but if circumstances dictate, the BLM may establish additional Drilling Islands. Drilling Islands will be situated in such a manner that extended reach horizontal wells could access oil and gas within the associated Development Area. Unless there is a compelling reason for not operating under a unitization or communitization agreement, the 2012 Secretary's Order envisions that the oil and gas leases in a Development Area will be unitized under the regulations found at 43 CFR subpart 3180 and developed by a unit operator, or operated under a communitization agreement as authorized under 43 CFR subpart 3105. These oil and gas reservoir management tools should lead to more orderly development of the oil and gas resources in the Development Area and minimize impacts to surface resources due to a reduction in the number of drill pads and associated roads, power lines, and other ancillary facilities. Moreover, the resulting reduction in the number and spacing of oil and gas drilling locations where wells penetrate the potash formation is expected to minimize impacts to potash resources and enhance the safety of underground potash miners.
The BLM envisions that a substantial portion of the Designated Potash Area will eventually be divided into Development Areas designed to minimize the impacts to potash mining while allowing for the development of oil and gas resources. The BLM expects that the oil and gas in Development Areas will largely be developed with extended-reach horizontal wells using the most current technology, consistent with applicable laws and regulations.
The 2012 Secretary's Order retains several important features of the 1986 Order, including the boundaries of the Designated Potash Area established in the 1986 Order, as corrected in 1987. The Secretary's Order also retains language of the 1986 Order for stipulations for oil and gas leases and potash leases issued, reinstated, renewed, or readjusted in the Designated Potash Area.
The formatting is modified to be consistent with the Department of the Interior's (Department) style requirements for Secretary's Orders. These requirements were changed in 1992 and are recorded in Section 012 DM 1 of the Departmental Manual.
The BLM received 28 comment letters during the comment period, including 41 distinct comments. These comments and the BLM's responses to them are available for review at the following Web site:
Pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. 4321
40 CFR 1506.6, 43 CFR 3164.1, 43 CFR 3590.2.
Bureau of Land Management, Interior.
Notice.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM), Redding Field Office, Redding, California, intends to prepare an amendment to the 1993 Redding Resource Management Plan (RMP) with an associated Environmental Assessment (EA) to analyze the sale of the reversionary interest held by the United States (U.S.) in 5 acres of land previously conveyed out of Federal ownership and by this notice is announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the RMP amendment with associated EA. Comments on issues may be submitted in writing until January 3, 2013. In order to be included in the analysis, all comments must be received prior to the close of the 30-day scoping period. We will provide additional opportunities for public participation as appropriate.
You may submit comments on issues and planning criteria related to the Redding RMP amendment and associated EA by any of the following methods:
•
•
•
Documents pertinent to this proposal may be examined at the Redding Field Office, 355 Hemsted Drive, Redding, CA 96002.
Ms. Ilene Emry, Realty Specialist, BLM Redding Field Office, telephone 530-224-2122; address 355 Hemsted Drive, Redding California 96002; email
The BLM Redding Field Office, Redding, California is providing notice that it intends to prepare an RMP amendment with an associated EA for the 1993 Redding RMP; announces the beginning of the scoping process; and seeks public input on issues and planning criteria. The planning area is located in Butte County, California, and encompasses the reversionary interest held by the U.S. in 5 acres of land previously conveyed out of Federal ownership. The BLM has received a request from the Forbestown Lodge No. 50, Free and Accepted Masons, to purchase the reversionary held by the U.S., in the following described land:
The area described aggregates 5.00 acres, more or less, in Butte County, California.
The land described above was conveyed in 1971 to the Forbestown Lodge No. 50, Free and Accepted Masons, a California non-profit association, under the authority of the Recreation and Public Purposes Act of June 14, 1926 (R&PP), for use as a public recreation site and meeting hall for the Lodge and public. The land is surrounded by private land, and is not contiguous to any other public land. When public land is conveyed under the authority of the R&PP, the U.S. retains a reversionary interest in the land which could result in title to the land reverting to the U.S. if the land is not used for the purposes for which it was conveyed or if the land is sold or transferred without the BLM's approval. The BLM is responsible for monitoring these reversionary interests in perpetuity to ensure the lands are used for the purposes for which they were conveyed. The reversionary interest in the land described above was not specifically identified for sale in the 1993 Redding RMP, as amended, and a plan amendment is required to process a direct sale. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and will guide the planning process. The BLM anticipates that the EA will consider both a plan amendment and the subsequent sale of the land and has identified local land uses and input from local governments as the primary preliminary issue of concern. The BLM anticipates that the EA will include, at a minimum, input from the disciplines of land use planning, biology and archaeology. This plan amendment will be limited to an analysis of whether the reversionary interest in the land described above meets the criteria for sale under Section 203 of the FLPMA, which are the planning criteria for this amendment.
You may submit comments on issues and planning criteria in writing to the BLM using one of the methods listed in the “
The BLM will use the NEPA public participation requirements to assist the agency in satisfying the public involvement requirements under Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470(f)) pursuant to 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the proposed action will assist the BLM in identifying and evaluating impacts to such resources in the context of both the NEPA and Section 106 of the NHPA.
The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request, or be requested by the BLM, to participate in the development of the environmental analysis as a cooperating agency.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time.
40 CFR 1501.7 and 43 CFR 1610.2
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM), as authorized under the provisions of the Federal Land Policy and Management Act of 1976 and pursuant to BLM regulations, is temporarily restricting travel by motorized vehicles to existing posted roads and two-track trails and issuing a temporary closure to wood harvesting and/or tree cutting on public land within the Topaz Ranch Estates (TRE) and Preacher fires burn areas. These areas are located south of Gardnerville, Nevada, in the Pine Nut Mountains east of U.S. Highway 395 in Douglas County, Nevada.
Ryan Elliott, fire planner, 775-885-6167, email:
A temporary restriction of cross-country vehicle travel and a temporary closure to tree cutting and wood collecting on areas burned by the TRE and Preacher fires in May and June 2012 are necessary to promote successful rehabilitation of the burn areas. The burn areas are located on public land on the west side of the Pine Nut Mountains. The affected public lands are described as follows:
The area described contains 8,070.4 acres, more or less in Douglas County, Nevada.
The area described contains 720 acres, more or less in Douglas County, Nevada.
This temporary restriction and temporary closure order will be posted at the Carson City District Office, 5665 Morgan Mill Road, Carson City, Nevada and at primary access points on BLM land into the burn areas. Maps of the closure areas are also available at the Carson City District Office.
On July 24, 2012, the BLM signed a Decision Record for the TRE and Preacher Fires, Emergency Action, Temporary Closures Environmental Assessment (EA) to implement these restrictions and closure. The EA analyzed these actions and is available to the public on the District Web site at
Motorized vehicle use within the burn areas will be restricted to existing posted roads and two-track trails. The BLM will post roads and two-track trails open to use during this period. This restriction applies to all motorized vehicles, excluding:
(1) Any emergency or law enforcement vehicle while being used for emergency or administrative purposes; and
(2) Any vehicle whose use is expressly authorized in writing by the manager, Sierra Front Field Office.
Closing the areas to wood harvesting and/or tree cutting is necessary because the BLM uses the burned trees to create erosion breaks. This restriction applies to all persons excluding:
(1) BLM personnel; and
(2) Any person who is expressly authorized in writing by the manager, Sierra Front Field Office.
If satisfactory rehabilitation is achieved prior to December 4, 2014, the temporary restriction and temporary closure will be lifted. If the rehabilitation has not met the established benchmarks for success in the TRE and Preacher fires rehabilitation, the BLM will consider reissuing a temporary order.
43 CFR 8364.1.
National Park Service, Interior.
Notice.
Pursuant to the terms of existing concession contracts, public notice is hereby given that the National Park Service intends to request a continuation of visitor services for the periods specified below.
Jo A. Pendry, Chief, Commercial Services Program, National Park Service, 1201 Eye Street NW., 11th Floor, Washington, DC, 20005; telephone (202) 513-7156.
The contracts listed below have been extended to the maximum allowable under 36 CFR 51.23. Under the provisions of current concession contracts and pending the completion of the public solicitation of a prospectus for a new concession contract, the National Park Service authorizes continuation of visitor services for a period not-to-exceed 1 year under the terms and conditions of the current contract as amended. The continuation of operations does not affect any rights with respect to selection for award of a new concession contract.
Under the provisions of current concession contracts and pending the completion of the public solicitation of a prospectus for a new concession contract, the National Park Service authorizes continuation of visitor services for the contract below for a period not-to-exceed 2 years under the terms and conditions of the current contract as amended. The continuation of operations does not affect any rights with respect to selection for award of a new concession contract.
National Park Service, Interior.
Notice.
This notice informs the public that all uses in Point Reyes National Seashore that are prohibited by the Wilderness Act (Pub. L. 88-577) have ceased and certain Federal lands that were previously designated as potential wilderness are, upon publication of this notice, designated as wilderness.
The designation is effective December 4, 2012.
Public Law 94-567, approved October 20, 1976, designated 25,370 acres in Point Reyes National Seashore as wilderness and further identified 8,003 acres as potential wilderness additions in maps entitled “Wilderness Plan, Point Reyes National Seashore”, numbered 612-90,000-B and dated September 1976. The maps showing the wilderness area and potential wilderness additions are on file at the headquarters of Point Reyes National Seashore, Point Reyes Station, CA 94956. Although Section 1 of Public Law 94-567 identified the number of acres of wilderness and potential wilderness, the maps filed with the committee as required under Section 2 of the legislation confirms that the actual acreage of the lands and waters was 24,200 acres of wilderness and 8,530 acres of potential wilderness.
Section 3 of Public Law 94-567 provided a process whereby potential wilderness additions within the Point Reyes National Seashore would convert to designated wilderness upon publication in the
Public Law 94-567 identified much of Drakes Estero as potential wilderness, and not as designated wilderness, due to the presence of a commercial shellfish operation in the estero. The authorizations for the commercial shellfish business operating in Drakes Estero expire on November 30, 2012.
With publication of this notice, the total designated wilderness within Point Reyes National Seashore encompasses 27,315 acres, more or less. The potential wilderness remaining within the national seashore consists of 5,415 acres, more or less. The remaining potential wilderness will remain as such until publication of a notice that uses conflicting with the provisions of the Wilderness Act have ceased.
Note that the total wilderness acreage cited in the November 18, 1999, notice was based on the acreage reported in Section 1 of Public Law 94-567. The total wilderness acreage cited in this notice is based on the maps filed with the committee under Section 2 of Public Law 94-567 and the May 1978 survey of the Point Reyes Wilderness. The National Park Service believes that the acreage calculation based on the maps and survey is more accurate than the acreage reported in Section 1 of the Act.
Note further that in Public Law 99-68, approved on July 1985, Congress designated that the wilderness area of Point Reyes National Seashore was to be known as the “Phillip Burton Wilderness.” Drakes Estero is hereby added to the Phillip Burton Wilderness.
National Park Service, Interior.
Notice.
Public notice is hereby given that the National Park Service proposes to extend the following expiring concession contracts for a period of up to 1 (one) year, or until such time as a new contract is executed, whichever occurs sooner.
Jo A. Pendry, Chief, Commercial Services Program, National Park Service, 1201 Eye Street NW., 11th Floor, Washington, DC 20005; telephone (202) 513-7156.
All of the listed concession authorizations will expire by their terms on or before December 31, 2012. Pursuant to 36 CFR 51.23, the National Park Service has determined that the proposed short-term extensions are necessary in order to avoid interruption of visitor services and has taken all reasonable and appropriate steps to consider alternatives to avoid such interruption.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before November 3, 2012. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by December 19, 2012. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
A request for removal has been made for the following resource:
Joint Board for the Enrollment of Actuaries.
Notice of Federal Advisory Committee meeting.
The Executive Director of the Joint Board for the Enrollment of Actuaries gives notice of a meeting of the Advisory Committee on Actuarial Examinations (portions of which will be open to the public) in Washington, DC, on January 10-11, 2013.
Thursday, January 10, 2013, from 9:00 a.m. to 5:00 p.m., and Friday, January 11, 2013, from 8:30 a.m. to 5:00 p.m.
The meeting will be held at the Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC.
Patrick W. McDonough, Executive
Notice is hereby given that the Advisory Committee on Actuarial Examinations will meet at the Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, on Thursday, January 10, 2013, from 9:00 a.m. to 5:00 p.m., and Friday, January 11, 2013, from 8:30 a.m. to 5:00 p.m.
The purpose of the meeting is to discuss topics and questions that may be recommended for inclusion on future Joint Board examinations in actuarial mathematics and methodology referred to in 29 U.S.C. 1242(a)(1)(B) and to review the November 2012 Pension (EA-2A) Joint Board Examination in order to make recommendations relative thereto, including the minimum acceptable pass score. Topics for inclusion on the syllabus for the Joint Board's examination program for the May 2013 Basic (EA-1) Examination and the May 2013 Pension (EA-2L) Examination will be discussed.
A determination has been made as required by section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. App., that the portions of the meeting dealing with the discussion of questions that may appear on the Joint Board's examinations and the review of the November 2012 Pension (EA-2A) Joint Board Examination fall within the exceptions to the open meeting requirement set forth in 5 U.S.C. 552b(c)(9)(B), and that the public interest requires that such portions be closed to public participation.
The portion of the meeting dealing with the discussion of the other topics will commence at 1:00 p.m. on January 11, 2013, and will continue for as long as necessary to complete the discussion, but not beyond 3:00 p.m. Time permitting, after the close of this discussion by Committee members, interested persons may make statements germane to this subject. Persons wishing to make oral statements should notify the Executive Director in writing prior to the meeting in order to aid in scheduling the time available and should submit the written text, or at a minimum, an outline of comments they propose to make orally. Such comments will be limited to 10 minutes in length. All persons planning to attend the public session should notify the Executive Director in writing to obtain building entry. Notifications of intent to make an oral statement or to attend must be faxed, no later than January 4, 2013, to 202-622-8300, Attn: Executive Director. Any interested person also may file a written statement for consideration by the Joint Board and the Committee by sending it to: Internal Revenue Service; Attn: Patrick W. McDonough, Executive Director; Joint Board for the Enrollment of Actuaries SE:RPO; Room 7550; 1111 Constitution Avenue NW.; Washington, DC 20224-0002.
30-Day notice.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until January 3, 2013. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Danielle Ouellette, Department of Justice Office of Community Oriented Policing Services, 145 N Street NE., Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3W-1407B, Washington, DC 20530.
30-Day Notice.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The extension of a previously approved information collection is published to obtain comments from the public and affected agencies. This information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until January 3, 2013. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Danielle Ouellette, Department of Justice Office of Community Oriented Policing Services, 145 N Street NE., Washington, DC 20530. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806. Written comments and suggestions from the public and affected agencies concerning the collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3W-1407B, Washington, DC 20530.
Notice is hereby given that, on October 19, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
In addition, Pall Corporation, Port Washington, NY, has been added as a party to the International SEMATECH Manufacturing Initiative, Inc. (“ISMI”).
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and SEMATECH intends to file additional written notifications disclosing all changes in membership.
On April 22, 1988, SEMATECH filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on June 29, 2012. A notice was published in the
Notice is hereby given that, on October 17, 2012, pursuant to Section 6(a) of the National Cooperative
Pursuant to Section 6(b) of the Act, the name and principal place of business of the standards development organization is SGIP 2.0, Inc., c/o Gesmer Updegrove LLP, Boston, MA. The nature and scope of SGIP 2.0's standards development activities are: SGIP 2.0 is organized exclusively for charitable, religious, educational, literary, and scientific purposes, within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (or the corresponding provision of any subsequent federal tax law), and the regulations currently or hereafter promulgated thereunder. In furtherance of such purposes, SGIP 2.0 is organized and will be operated primarily to continue the work of the unincorporated SmartGrid Interoperability Panel, by supporting the National Institute of Standards and Technology in fulfilling its responsibilities pursuant to the
Notice is hereby given that, on November 8, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. § 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and 3D PDF intends to file additional written notifications disclosing all changes in membership.
On March 27, 2012, 3D PDF filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on August 20, 2012. A notice was published in the
60-Day Notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted until February 4, 2013. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Cathy Gallagher, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
Primary: Business or other for-profit.
Other: None.
Abstract: 21 U.S.C. 826 and 21 CFR 1303.22 and 1315.22 require that any person who is registered to manufacture any basic class of controlled substances listed in Schedule I or II and who desires to manufacture a quantity of such class, or who desires to manufacture using the List I chemicals ephedrine, pseudoephedrine, or phenylpropanolamine, must apply on DEA Form 189 for a manufacturing quota for such quantity of such class or List I chemical.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, 145 N Street NE., Suite 3W-1407B, Washington, DC 20530.
60-Day Notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted until February 4, 2013. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Cathy Gallagher, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
Primary: Business or other for-profit.
Other: None.
Abstract: 21 U.S.C. 826 and 21 CFR 1303.12 and 1315.32 require that U.S. companies who desire to use any basic class of controlled substances listed in Schedule I or II or the List I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine for purposes of manufacturing during the next calendar year shall apply on DEA Form 250 for procurement quota for such class or List I chemical.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Two Constitution Square, 145 N Street NE., Room 3W-1407B, Washington, DC 20530.
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR 503.25) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of open meetings as follows:
11:00 a.m.—Issuance of Proposed Decision in claims against Libya;
2:00 p.m.—Oral hearings on Objection to Commission's Proposed Decisions in Claim No.—LIB-II-159; 3:00 p.m.—LIB-II-058.
All meetings are held at the Foreign Claims Settlement Commission, 600 E Street NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Judith H. Lock, Executive Officer, Foreign Claims Settlement Commission, 600 E Street NW., Suite 6002, Washington, DC 20579. Telephone: (202) 616-6975.
Office of the Secretary, Labor.
Final policy; Response to comments on proposed policy.
The Department of Labor (DOL) is issuing its final Tribal Consultation Policy. The Tribal Consultation Policy (hereinafter referred to as the “policy”) establishes standards for improved consultation with federally-recognized Indian Tribes to the extent that no conflict exists with applicable federal laws or regulations. The policy applies to any Department action that affects federally-recognized Indian tribes and requires that the Department's government-to-government consultation involve appropriate Tribal and Departmental Officials. In addition to setting forth the final policy, this document also responds to comments on the proposed policy, which was published in the
This Final Policy is effective December 4, 2012
For information on the Department of Labor's Tribal Consultation Policy, contact Jeremy Bishop, Special Assistant to the Secretary, Office of Public Engagement, U.S. Department of Labor, Room C-2313, 200 Constitution Ave. NW., Washington, DC 20210. Telephone: (202) 693-6452 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone via TTY by calling the toll-free Federal Information Relay service at 1-800-877-8339. Email:
In response to the proposed Tribal Consultation Policy, the Department received comments from a broad spectrum of interested parties, including Indian tribes, Alaska Native Corporations, and tribal advocacy groups that raise a variety of concerns with specific provisions of the proposed policy. After reviewing these comments thoughtfully and systemically, the Department has modified several provisions and retained others as originally proposed.
Provisions of the policy that received comments are discussed in detail below; provisions that were not commented on have been adopted as originally proposed. The original comments can also be viewed online in their entirety at:
A commenter suggested adding the Consolidated Appropriations Act of 2005 (Pub. L. 108-447) to the list of authorities on which the policy is based. Section 518 of Title V of Division H requires OMB and all federal agencies to consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order 13175, Consultation and Coordination With Indian Tribal Governments. This provision amends the Consolidated Appropriations Act of 2004 (Public Law 108-199), which only required that the Office of Management and Budget (OMB) participate in such consultations with Alaska Native Corporations.
The Department has incorporated this change.
One commenter recommended editing this section to specify that while the relationship between the federal government and Alaska Native corporations is different than the government-to-government relationship with federally-recognized tribes, the policy should recognize the Department's obligations to consult with Alaska Native corporations pursuant to the Consolidated Appropriations Act for Fiscal Year 2005 (Pub. L. 108-447).
The Department does not believe it is necessary to make this suggested change. The definition of “Indian Tribe” in section X, which specifically includes Alaska Native Corporations, makes clear that such organizations are entitled to the same treatment under the policy as other federally-recognized tribes.
A commenter suggested changing the phrase “legally permissible” to “not legally prohibited” to allow Indian tribes greater discretion in developing their own policies and standards, so long as such actions are not legally prohibited. The commenter believes the revised standard would give further weight to Indian tribes' self-determination, and would be easier to implement and enforce than “permissible” as a basis for the Department's decisionmaking.
The Department believes the suggested change is unnecessary. The phrase “legally permissible” is consistent with the text throughout this section and sufficiently conveys the discretion to be afforded Indian tribes in developing their own policies and standards regarding the administration of DOL programs by Indian tribes.
A commenter recommended deleting the term “tribal officials” in section V to clarify that comments are normally provided by the Indian tribes, not individual tribal officials.
The Department does not believe such a change is appropriate. The definition of “Tribal Officials” in Section X specifically recognizes that tribal officials have the authority to represent and act on behalf of their respective Indian tribes.
One commenter suggested deleting the term “tribal governments” in paragraphs (1) and (2) of this section because it is not defined in the policy. The commenter notes the proposed change would alleviate potential confusion caused by applying some Tribal Consultation Policy provisions to the undefined “tribal governments,” while applying other provisions to the defined term “Indian Tribes.”
Moreover, while the term “Tribal Officials” is defined in Section X, the commenter suggested deleting this term in paragraph (2) to make clear that the policy is referring to the same entities throughout, and that the Unfunded Mandates section does not have a
The Department agrees with this suggestion and has made the appropriate changes in the text of this section.
It was also suggested that the Department include, with its summary of affected Indian tribes' concerns with certain proposed regulations in subparagraph (2)(b), an explanation of how such concerns were addressed through changes to the proposed regulations.
The Department does not believe a revision is needed. The Department already addresses the impact of its proposed regulations on Indian tribes consistent with applicable federal law.
A commenter recommended deleting the term “tribal government(s)” in section VI and replacing it with the term “Indian tribes.” The commenter notes the proposed change would alleviate potential confusion caused by applying some Tribal Consultation Policy provisions to the undefined “tribal governments,” while applying other provisions to the defined term “Indian Tribes.”
The Department agrees with these changes and they are reflected in the text of this section.
A commenter also recommended the Department revise its standards for granting Indian tribes certain waivers of statutory or regulatory requirements, so that such waivers will be granted provided they are “not inconsistent” with applicable federal policy objectives.
The Department accepts this change from “consistent” to “not inconsistent”.
The commenter further requested that the Department provide a legal basis for any refusal to grant a requested wavier to an Indian tribe by amending the text to read as follows:
The Department routinely cites its legal bases for declining to request a waiver, but notes there may also be instances where important agency policy and programmatic concerns preclude granting a waiver of a statutory or regulatory requirement. Thus, the Department has accordingly revised the provision as reflected in the text of this section.
Another commenter suggested the Department provide specific timeframes for issuing decisions about whether to grant a waiver of a statutory or regulatory requirement. The commenter also questioned whether the Department would deem a waiver request to be approved if the Department failed to respond by the applicable deadline. Lastly, the commenter questioned whether there is an appeals process for the denial of a waiver request.
The Department notes the decision on whether to grant a waiver is fact-specific and varies depending on the circumstances of each particular application. In addition, the procedures for reviewing a waiver application are often prescribed by statute (e.g., the Workforce Investment Act of 1998 (Pub. L. 105-220, as amended; 29 U.S.C. 2801 et seq.)). Thus, in order to maintain the necessary flexibility to meet these requirements, the Department declines to make further changes to this section.
A commenter requested the Department revise, from 60 days to 90 days, the notice provided to Indian tribes in paragraph (1) of this section before the Department moves forward with a policy or action it determines will have tribal implications, whether for an individual tribe, regionally, or nationally. The commenter states such an extension would allow for more meaningful participation.
The Department believes the 60-day notice requirement provides sufficient opportunity for consultation with affected Indian tribes. The Department notes this provision is greater than the 30-day notice and comment period required when an agency issues a Notice of Proposed Rulemaking under the Administrative Procedure Act (see 5 U.S.C. 553(d)).
The commenter also requested that the Department delete the provision in paragraph (1) that an Indian tribe requesting a consultation should distribute any DOL-provided information to its members. Among other things, the commenter asserts that compliance with this provision would “be unworkable because of the significant costs involved for postage, copying, labor, etc.”
The Department notes this provision is not a mandatory requirement, but has amended the provision to offer Indian tribes greater flexibility in supplying DOL-provided materials to its members prior to the consultation.
Another commenter suggested revising, from “no unique impacts on Indian tribes” to “no tribal implications”, the Department's threshold in paragraph (1) for determining whether DOL agencies may follow the existing
The Department is concerned that requiring a consultation prior to the initiation of every proposed rulemaking that may only have a minor or tangential impact on a particular Indian tribe would impose an unrealistic burden on DOL agencies and may, in fact, hinder the overall effectiveness of the policy. Thus, the Department has revised the determining threshold to “no particularized impact on Indian tribes” to emphasize that consultation prior to the initiation of a rulemaking proceeding should be reserved for proposed rules that would have a particular or distinct impact on Indian tribes.
A commenter requested that enforcement issues, such as “enforcement policy” and “planning”, be added as permissible subjects for consultation under the Department's Tribal Consultation Policy in paragraph (2).
Discussions with Indian tribes regarding the framing and shaping of the Department's enforcement policies are not appropriate subjects for consultation under this policy. In particular, the Department's component agencies need to retain sufficient autonomy, discretion, and confidentiality in order to develop successful enforcement strategies within prescribed statutory frameworks. Allowing certain stakeholders increased influence over the development of strategies, enforcement policies and initiatives would frustrate agencies' efforts to ensure necessary worker protections, benefits, and rights. The Department, therefore, declines to make the recommended changes.
A commenter also requested that “grants management issues” be included as a permissible subject for consultation in paragraph (2), since these issues may represent an Indian tribe's greatest area of interest or concern when dealing with the Department of Labor.
Although general discussions regarding the grant programs and contracting are permissible subjects for consultation under the policy, the scope of the Department's interactions with grantees and prospective grantees about specific grantee selection and monitoring processes are routinely set forth in each grant solicitation application. For these reasons, the Department declines to make further changes to this paragraph.
A commenter recommended that Indian tribes be involved in matters of interest to them before the Initial Planning and Scoping stage outlined in paragraph (3). The commenter believes that Indian tribes should be directly involved in development and planning, and not merely as respondents to a plan developed by the Department of Labor.
The Initial Planning and Scoping stage is specifically designed to allow the Department and Indian tribes to jointly frame the scope of consultation following the Department's notification to affected tribes that a proposed policy or action will have tribal implications. It is through this consultation process that a proposed policy or action may be subject to amendment based on the valuable input received from affected Indian tribes. A requirement that DOL consult with affected Indian tribes before a proposed policy or action is even formulated would not serve to further the goals of the Tribal Consultation Policy. For these reasons, the Department declines to require consultation prior to the Initial Planning and Scoping stage.
A commenter objected to the requirement in paragraph (7) that a written communication on the correspondence of the highest elected or appointed tribal official will be considered by the Department as the official position of the tribe on the subject at issue. The commenter notes that Indian tribes operate differently and do not all follow the same procedures for vetting their views. Thus, to preserve tribes' sovereignty and self-determination, the commenter suggests allowing Indian tribes to use their own process for submitting comments on issues of concern.
The Department agrees, and has amended the provision to convey that an Indian tribe's views can also be submitted by an appropriate third party designee.
A commenter recommended that the suggested timeframes for the consultation process outlined in paragraph (8) be mandatory, rather than permissive, so that all interested parties know with certainty when such actions will take place. The commenter would also extend the timeframe in subsections (a) and (b) from 30 to 60 days, and extend the timeframe in subsection (c) from 60 to 90 days.
The Department recognizes that each tribal consultation is unique and will depend on the nature and complexity of the issues to be discussed. There may be times, for example, when these timeframes must be compressed to respond to an emergency situation or to meet a critical deadline, or expanded to address novel or highly complex matters. Thus, the Department has retained the permissive nature of the established time frames, but revised the text in subsections (a), (b), and (c) by replacing the word “should” with “shall normally”.
One commenter suggested adding a requirement in paragraph (9) that the Department provide, at the conclusion of a consultation, a specific explanation for why any tribal input was not adopted. The commenter believes this would make the consultation process more transparent and ensure that tribes' recommendations receive full and fair consideration by the Department.
The Department notes the requirement to provide a “specific explanation” for why a particular recommendation was not adopted may be difficult to articulate in some instances, and an extended debate over the required degree of specificity may unnecessarily detract from the overarching purpose of the policy to improve coordination between the Department and affected Indian tribes. Thus, the Department has accordingly revised the provision as reflected in the text of this paragraph.
A commenter suggested in paragraph (11) that DOL agencies' use of existing statutory advisory committees be a mandatory, rather than permissive, part of their consultation responsibilities under the policy.
The Department recognizes the valuable role advisory committees often play in meaningful consultation. The Department notes, however, that some Indian tribes may have concerns about being forced to utilize an advisory committee structure as part of the consultation process. The Department has, therefore, declined to make this suggested change.
A commenter recommended deleting the term “tribal governments” from paragraph (12), Submission of Comments by Other AI/AN Organizations, to alleviate potential confusion caused by applying some Tribal Consultation Policy provisions to the undefined “tribal governments”, while applying other provisions to the defined term “Indian Tribes”.
The Department agrees with this suggestion and has changed the text of the section accordingly.
Another commenter stated that aside from paragraph (12), the policy does not provide meaningful participation for Alaska Native Corporations as required by the Consolidated Appropriations Act for Fiscal Year 2005 (Public Law 108-447).
The Department believes the definition of “Indian Tribes” in section X, which specifically includes Alaska Native Corporations, makes clear that such organizations are entitled to the same treatment under the policy as other federally-recognized tribes.
One commenter recommended under paragraph (1) of this section that the policy specify that DOL agencies be required to maintain records of tribal concerns that were not addressed, as well as those that were, and that such records also be made available to Indian tribes.
The Department believes these changes are unnecessary, since it already reports this information to the public on an annual basis, and continually provides relevant follow-up information on the DOL Web site at:
A commenter also suggested that under paragraph (2), the Department develop and utilize appropriate evaluation measures, with input from affected Indian tribes, in assessing its efforts to determine whether the overall policy is effective over time.
The Department believes that all Indian tribes should have an opportunity to express their views on how to best measure the effectiveness of the Tribal Consultation Policy, not just those tribes who may be directly impacted by the policy in the near-term. Thus, the Department has accordingly revised this provision.
A commenter identified a possible typographical error that would require the Department to appoint an “alternate tribal official”, instead of providing the Department the authority to appoint one of its own staff as the alternate official.
The Department agrees and has deleted the word “tribal”.
The commenter further noted this subsection also contains reference to “agency tribal officials”. The commenter suggests revising the text so to make clear the subsection does not refer to actual tribal officials.
The Department agrees and has revised the provision accordingly.
Lastly, this commenter suggested changing “should” to “shall” in the final sentence of this subsection to clarify that responsibility for tribal matters is not a civil rights matter, and, therefore, does not belong within the Department's Civil Rights Center.
The Department has changed “should” to “shall” in this sentence, but believes that it is important to retain
The Department received input that the policy is inadequate because, among other things, it limits the Department's responsibility to consulting only with Indian tribes.
One commenter noted there are several instances in the policy where the word “Indian” does not appear before the word “tribe”. Since the term “Indian tribe” specifically encompasses Alaska Native Corporations, the commenter suggests using the term consistently throughout to make clear that Alaska Native Corporations will receive the same treatment under the Tribal Consultation Policy as other federally-recognized tribes.
The Department has addressed this concern throughout the policy, as appropriate, and specifically notes that Alaska Native Corporations are entitled to the same treatment as other federally-recognized tribes under this Tribal Consultation Policy.
A commenter also objected to inclusion of “Native Hawaiians” within the definition of “American Indian and Alaska Native (AI/AN)”. The commenter believes “Native Hawaiian” is considered a racial or ethnic classification rather than a tribal classification, and that use of the term is thus prohibited.
The Department disagrees with this view. The analogous treatment of Native Hawaiians and federally-recognized Indian tribes is explicitly recognized in numerous federal statutes. For example, section 166 of the Workforce Investment Act of 1998 (Public Law 105-220, as amended), which provides specific employment and training programs for Indian, Alaska Native, and Native Hawaiian individuals, gives the same meaning to “Native Hawaiians” as the term is defined in section 7207 of the Native Hawaiian Education Act (Pub. L. 107-110, as amended):
(1) Native Hawaiian: The term “Native Hawaiian” means any individual who is
(A) A citizen of the United States; and
(B) A descendent of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now comprises the State of Hawaii, as evidenced by—
(i) Genealogical records;
(ii) Kapuna (elders) or Kamaaina (long-term community residents) verification; or
(iii) Certified birth records.
In addition, section 7202(12)(B) of the Native Hawaiian Education Act states, “Congress does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a once sovereign nation as to whom the United States has established a trust relationship.”
The commenter cites
Further, while Native Hawaiians are included in the definition of “American Indian and Alaska Native (AI/AN)”, the Tribal Consultation policy does not provide any additional consultation rights to Native Hawaiian individuals, communities, or organizations. For these reasons, the Department declines to delete the reference to “Native Hawaiians” from the term “American Indian and Alaska Native (AI/AN)” as defined in the policy.
Another commenter noted that federally-recognized Indian tribes have formed consortiums and multi-tribal organizations which operate DOL programs and serve more than one tribe. The commenter notes, “[e]ach of these groups speaks on behalf of the tribes they serve on DOL issues, unless a tribe has decided to participate in any particular issue or has reserved that power to itself.” To accurately include these consortium groups' participation in the Tribal Consultation Policy, the commenter suggests adding another category, “Tribal Organization”, which would have the same impact on DOL policy as individual tribes, to be defined as follows:
As part of this change, the commenter suggests adding the term “tribal organization” throughout the text of the Tribal Consultation Policy wherever there is a reference to “Indian tribes”. The commenter also suggests revising the definition of an “AI/AN Organization” so that there is a clear distinction between that term and the commenter's proposed definition of “Tribal Organization”.
The Department does not believe that the additional definition of “Tribal Organization” is necessary. The Department recognizes that Indian tribes may delegate or appoint a third party to represent their interests, provided such notice is submitted to the Department in writing prior to the start of any consultation with the Department, similar to consultations conducted pursuant to the Federal Advisory Committee Act (Pub. L. 92-463). The Department has added a corresponding sentence to the definition of “Indian tribe”.
Lastly, one commenter suggested deleting the word “government” from the definition of the term “Tribal Committee, Task Force, or Work Group”, to ensure consistency with other defined terms. The commenter notes the term “Tribal Government Officials” is undefined in the Tribal Consultation Policy, and may cause confusion as to who is specifically permitted to participate in such task forces, committees, and work groups.
The Department agrees and has deleted the word “government” from this definition.
The United States has a unique legal and political relationship with Indian tribal governments, established through
The Department of Labor (DOL) has collaborated extensively with American Indians and Alaska Natives (AI/AN) for many years in advancing its mission of fostering job opportunities, improving working conditions, and assuring work-related benefits and rights of workers and retirees in the United States. In recent years, senior DOL officials have conducted many site visits in Indian Country and regularly engage with Indian tribes and their representatives, including the National Congress of American Indians. The Department's collaboration with Indian tribes encompasses a broad range of DOL matters affecting tribes, including joint efforts to improve tribal program management, rulemaking, regulations, policies, waivers and flexibility, grant programs, contracting opportunities, and regulatory guidance.
The Department's Employment and Training Administration (ETA), for example, awards grants to Indian and Native American entities for programs that have become a key part of improving tribal economic self-sufficiency by ensuring that tribal workers have the skills to build and operate new infrastructure and facilities at the tribal community level and facilitate the creation of new business opportunities in Indian Country. ETA's Division of Indian and Native American Programs (DINAP) administers employment and training services grants to tribal communities in ways that are consistent with the traditional cultural values and beliefs of the people they are designed to serve, including youth and at-risk populations facing employment barriers. DINAP works closely with the Native American Employment and Training Council (NAETC), a federal advisory committee comprised of representatives of Indian tribes, tribal organizations, Alaska Native entities, Indian-controlled organizations serving Indians, or Native Hawaiian organizations appointed by the Secretary of Labor. The NAETC provides advice to the Secretary regarding the overall operation and administration of tribal programs authorized under section 166 of the Workforce Investment Act (Pub. L. 105-220, as amended), as well as the implementation of other DOL tribal programs and services.
The Department's Women's Bureau (WB) has an ongoing relationship with the United Indians of All Tribes Foundation and works with its Procurement Technical Assistance Center to provide information to Indian women small business owners concerning workforce development trends and DOL contract opportunities. The WB is also part of a network of Indian women organizations that collaborate on finding ways to end domestic violence and abuse.
The Department's Office of Federal Contract Compliance Programs (OFCCP) works in concert with the Council for Tribal Employment Rights to increase the employment of AI/ANs by federal contractors and subcontractors through linkages, referrals, training, regular communication, and sharing of information and resources pursuant to federal contractors' obligations.
The Department's Occupational Safety and Health Administration (OSHA) works with Indian tribes by providing compliance assistance and including the tribes in relevant OSHA outreach and awareness campaigns addressing worker safety and health. OSHA is making its contacts with Indian tribes more regular and consistent, and seeks to establish voluntary protection programs, partnerships, and alliances with tribal groups in the interest of promoting job safety in Indian Country. OSHA also makes available workplace safety grants that Indian tribes may qualify for, such as the Susan Harwood Training Grants.
The Department's Mine Safety and Health Administration (MSHA) assists Indian tribes with training programs for miners and has provided annual grant funds to the Navajo Nation to educate miners and mine operators on safe working practices in the mining industry and compliance with applicable MSHA regulations.
These are among many of DOL's ongoing actions to engage with tribes and support the efforts of tribal governments to have sustainable tribal communities and achieve our mutual goals of ensuring fair wages, employee rights, and workplace safety while working to alleviate the high unemployment found on tribal lands. The Department is committed to building on these efforts to engage in regular and meaningful consultation and collaboration with tribal officials on policies and actions that have tribal implications, including the development of this formal tribal consultation policy. Accordingly, this policy has been developed in consultation with Indian tribes and tribal officials as set forth in Executive Order 13175.
Implementation of this tribal consultation policy will facilitate greater consistency across the DOL in carrying out tribal consultations and will improve collaboration with Indian tribes at all levels of Departmental organizations and offices. This policy will also ensure that a reporting structure and process is in place so that all Departmental tribal consultation work will be transparent and accountable. DOL employees having responsibility for the outcomes of consultation and collaborative activities will be better able to assess effectiveness and coordinate their efforts with other related Departmental initiatives. Through these efforts, the Department anticipates an even stronger relationship with Indian tribes and improved program delivery to meet the needs of Indian tribes and communities.
This tribal consultation policy document was developed based upon:
1. Indian Self-Determination and Education Assistance Act, Public Law 93-638, as amended (25 U.S.C. 450
2. Indian Self-Determination Act Amendments of 1994, Public Law 103-413 (25 U.S.C. 450
3. Native American Programs Act, Public Law 93-644, as amended (42 U.S.C. 2991
4. Consolidated Appropriations Act of 2005, Public Law 108-447.
5. Executive Order 12866, Regulatory Planning and Review, September 30, 1993.
6. Presidential Memorandum, Government-to-Government Relations with Native American Tribal Governments, April 29, 1994.
7. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, November 6, 2000.
8. Presidential Memorandum, Government-to-Government Relationship with Tribal Governments, September 23, 2004.
9. Presidential Memorandum, Tribal Consultation, November 5, 2009.
10. OMB Memorandum M-10-33, Guidance for Implementing E.O. 13175, July 30, 2010.
The United States, in accordance with treaties, statutes, executive orders, and judicial decisions, has recognized the right of Indian tribes to self-government and maintains a government-to-government relationship with federally recognized tribes. Indian tribes exercise inherent sovereign powers over their members and territory. The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes. Based on this government-to-government relationship, DOL will continue to work with Indian tribes on its programs involving tribes in a manner that respects tribal self-government and sovereignty, honors tribal treaty and other rights, and meets the Federal Government's tribal trust responsibilities.
Communication and the exchange of ideas will be open and transparent. Department officials will respect the cultural values and traditions of the tribes. To ensure efficiency and avoid duplicative efforts, DOL will work with other Federal Departments to enlist their interest and support in cooperative efforts to assist tribes to accomplish their goals within the context of all DOL programs.
The Department is committed to ongoing and continuous dialogue with Indian tribes, both formally and informally, on matters affecting tribal communities. Consultation is a critical ingredient of a sound and productive federal-tribal relationship that emphasizes trust, respect, and shared responsibility. Engaging with tribes and building relationships with tribal officials have improved the Department's policy toward Indian tribes on a broad range of DOL matters. The Department is committed to further improving its collaboration with Indian tribes and creating additional opportunities for input from all affected tribal communities. Consultation that is meaningful, effective, and conducted in good faith makes the Department's operation, decision making, and governance practices more efficient.
In accordance with Executive Order 13175, when formulating and implementing policies that will have tribal implications, it is the Department's policy that, to the extent practicable and permitted by law, consultation with affected Indian tribes will occur. As stated in the executive order, this refers to proposed legislation, regulations, policies, or actions that have substantial direct effects 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.
Each DOL operating agency will have an accountable process to ensure meaningful and timely input by Indian tribes on policies or actions that have tribal implications. With respect to DOL programs administered by Indian tribal governments, operating agencies will grant Indian tribal governments the maximum administrative discretion permissible consistent with applicable law, contracting requirements, and grant agreements, and will defer to Indian tribes to develop their own policies and standards where legally permissible. The Department's operating agencies will review their existing tribal consultation and program administration practices, including those of their regional offices, and revise them as needed to comply with the Department's policy as set forth in this document. If DOL agencies require technical assistance in conducting consultations, the designated Departmental official's office (see section IX below) can provide and/or coordinate such assistance.
In accordance with Executive Order 13175, to the extent practicable and permitted by law, prior to the promulgation of any regulation that has tribal implications and preempts tribal law, the DOL agency involved will:
1. Notify and consult with affected Indian tribes early in the process of developing the proposed regulation consistent with the Administrative Procedure Act (5 U.S.C. 551
2. Provide a tribal summary impact statement in a separately identified portion of the preamble to the regulation as it is to be issued in the
3. Make available to the Secretary any written communications submitted to the agency by tribal officials.
On issues relating to tribal self-governance, tribal self-determination, and implementation or administration of tribal programs, each DOL agency will make all practicable attempts where appropriate to use consensual mechanisms for developing regulations, including negotiated rulemaking in accordance with the Negotiated Rulemaking Act.
For any draft final regulation that has tribal implications that is submitted to the Office of Information and Regulatory Affairs for review under E.O. 12866, the agency will certify that the requirements of Executive Order 13175 have been met.
In accordance with Executive Order 13175, no DOL agency shall promulgate any regulation having tribal implications that is not required by statute and imposes substantial direct compliance costs on tribal communities, unless:
1. Funds necessary to pay the direct costs incurred by Indian tribes in complying with the regulation are provided by the Federal Government; or
2. Prior to the formal promulgation of the regulation, the agency:
a. Consulted with Indian tribes early in the process of developing the proposed regulation;
b. In a separately identified portion of the preamble to the regulation as it is to be issued in the
c. Makes available to the Director of the Office of Management and Budget any written communications submitted to DOL by such Indian tribes.
With respect to statutory or regulatory requirements that are discretionary and subject to waiver by DOL, each DOL agency will review the processes under which Indian tribes apply for waivers and take appropriate steps to streamline those processes as necessary.
When reviewing any application by an Indian tribe for a waiver of regulatory requirements in connection with any program administered by a DOL agency, the agency will consider the relevant factors with a general view toward increasing opportunities for utilizing flexible policy approaches at the Indian tribal level in cases in which the proposed waiver is not inconsistent with the applicable federal policy objectives and is otherwise appropriate as determined by the agency.
Each DOL agency will promptly render a decision upon a complete application for a waiver. The agency will provide the applicant with timely written notice of the decision and, if the application for a waiver is not granted, the reasons for such denial, including a citation to any relevant legal authority that provides a basis for the denial.
1. Notification. When a DOL agency or regional office determines that a proposed policy or action will have tribal implications, whether for an individual tribe, regionally, or nationally, the DOL agency will have an affirmative responsibility to provide advance notice to the potentially affected Indian tribes at the earliest practicable time, but not less than 60 days prior to DOL's action. An Indian tribe may initiate a request for consultation with DOL or a DOL agency on a DOL matter that it believes has tribal implications at any time by contacting that agency or the designated Departmental official (see section IX), and the tribe should disseminate any DOL-provided information to its members by the method(s) it deems appropriate (e.g., U.S. mail, electronic mail, hard-copy handouts). With respect to rulemaking proceedings of general applicability that have no particularized impact on Indian tribes, DOL agencies may use the existing
2. Subjects of Consultation. To the extent consistent with applicable laws and administrative requirements, consultation can involve any DOL matter having tribal implications, including but not limited to: tribal program management, rulemaking, regulations, policies, waivers and flexibility; grant programs; contracting opportunities; regulatory guidance; and other matters of tribal interest. At the same time, DOL agencies should not create undue burdens on tribes with respect to regulations or other matters that do not have tribal implications. Routine matters, including normal DOL interactions with direct grantees such as monitoring, selecting grantees, and reporting requirements do not trigger further consultation processes under this policy. Enforcement policy, planning, investigations, cases and proceedings are not appropriate subjects for consultation under this policy.
3. Initial Planning and Scoping. Following notification to affected tribes that policies or actions have tribal implications, the DOL agency or regional office, in conjunction with the designated Departmental official's office, should engage with those tribes on initial planning and the appropriate scope of the consultation. Initial planning and scoping should include describing the nature and extent of the expected tribal implications; identifying any time constraints or deadlines, relevant existing policies, and potential resource issues; and making a determination as to the most useful and appropriate consultation mechanism.
4. Consultation Mechanisms. The manner of consultation should be appropriate to the nature and complexity of the matter and can occur via mailings (e.g., for remote tribes that may not have internet access), one or more face-to-face meetings or meetings via teleconference, roundtables, or other appropriate means and may include the use of electronic media and messaging and Web site portals. All meetings will be open to the public.
5. Conducting Consultations. When a consultation commences, DOL will solicit the views of the Indian tribes involved on the relevant subjects and issues. Consultation should involve a thorough examination of the subject at issue, including discussion of cultural, economic and other impacts on tribal programs, services, functions and activities; compliance guidance; programmatic and funding issues if relevant; any external constraints such as executive, judicial, or legislative actions; and any relevant technical or other regulatory issues as they affect tribes.
6. Frequency of Consultation Meetings. Consultation meetings may be scheduled on a regular basis or on an as needed basis except that at least one national tribal consultation meeting will be held by DOL each calendar year. For example, DOL agencies may establish a quarterly or semi-annual conference call with the tribes in order to consult with them on the regulatory proposals being considered by the agency and inform them about opportunities to participate in stakeholder meetings and public forums. To reduce costs, tribes and DOL agencies will make their best efforts to coordinate face-to-face consultation meetings to coincide with other regularly scheduled meetings (such as multi-agency and association meetings and regional tribal meetings).
7. Submissions of Tribal Comments. The DOL agency involved in the consultation will communicate clear and explicit instructions on the means and time frames for Indian tribes to submit comments to DOL on the matter, whether in person, by teleconference, and/or in writing, and if appropriate will allow a reasonable period of time following a consultation meeting for tribes to submit additional materials. A written communication on the correspondence of the highest elected official, appointed tribal official, or other third party designee of such authority (according to the procedures set forth under the definition of “Indian Tribes” in section X), will be considered by DOL to be the official position of the tribe on the subject at issue. If the DOL agency determines that the Administrative Procedure Act or other federal law or regulation prohibits continued discussion at a specified point in the decision-making process, the agency will so inform the Indian tribes. With respect to rulemaking proceedings of general applicability that will have no unique impacts on Indian tribes, DOL agencies may use existing
8. Time Frames. Time frames for the consultation process will depend on the nature and complexity of the consultation and the need to act quickly. Suggested guidelines are as follows:
a. The initial planning and scoping shall normally take place within 30 days from the date of the issuance of the notice of the proposed action;
b. If a consultation meeting will occur, the meeting shall normally be scheduled within 30 days of the completion of the planning and scoping;
c. For consultations involving one or more meetings, the consultation process shall normally be concluded within 60 days of the final consultation meeting; for consultations not involving meetings the consultation process shall normally
These time frames may be compressed in exigent situations, such as when a critical deadline is involved, or expanded as necessary for novel or highly complex matters.
9. Reporting of Outcome of Consultation to Tribes. The DOL agency involved in the consultation will report the status or outcome of the issue involved to the affected Indian tribes within 30 days of the conclusion of the consultations on that issue. And, to the extent that tribal input was not adopted, the agency will provide a written explanation for why such input was not adopted or incorporated.
10. Formation of Tribal Committees, Task Forces, or Work Groups. Based on the government-to-government relationship, consultation under this policy is generally with one or more individual tribal governments. In some cases, it may become necessary for DOL to form a tribal committee, task force, or work group to study a particular policy, practice, issue, or concern. Members of such committees or work groups will include representatives of federally recognized tribal governments or their designees with authority to represent their interests or act on their behalf. Tribal representation on such committees or work groups should consist of geographically diverse small, medium and large tribes, whenever possible. Members of these committees or work groups shall make good-faith attempts to attend all meetings which shall be open to the public and may establish member roles and protocols for producing their work and obtaining input and comment on it. All final work group products or recommendations will be given serious consideration by the Department. [See Section XI below on the Federal Advisory Committee Act (FACA) exemption for consultations undertaken with officials of federally recognized tribal governments pursuant to this tribal consultation policy.]
11. Use of Existing Statutory Advisory Committees. DOL agencies may also use existing tribal advisory committees such as the NAETC as part of meeting their consultation responsibilities under this policy. If such an advisory committee is required by law to be used exclusively for a particular function or purpose, consultation shall take place in accordance with the requirements of such committee and nothing in this policy requires any further consultation (see, e.g., 29 U.S.C. § 2911(h)).
12. Submission of Comments by Other AI/AN Organizations. The primary focus of formal consultation activities under this policy is with representatives of federally recognized Indian tribes. DOL recognizes, however, that in some cases the consultation process would be negatively affected if other (non-federally recognized) AI/AN organizations lacking the government-to-government relationship were excluded. Accordingly, nothing in this policy prohibits other AI/AN organizations that are not representatives of Indian tribes from providing their views to the Department.
The consultation process and activities conducted under this policy should be accountable, transparent, and result in a meaningful outcome for the Department and for the affected Indian tribes. To enable the Department and the Indian tribes to effectively evaluate the implementation and results of this consultation policy:
1. DOL agencies will maintain records of each consultation and the manner in which the tribal concerns were addressed, and will document the status or outcome of each subject of consultation.
2. DOL agencies will, with input from Indian tribes, develop and utilize appropriate evaluation measures to assess their efforts to determine whether their overall consultation process is effective over time.
3. DOL agencies will report annually to the office of the designated Departmental official on the frequency, scope, and effectiveness of their consultation activities including any recommendations received from Indian tribes on ways to improve the consultation process.
4. The designated Departmental official's office will compile the reports of the agencies and prepare an annual DOL consultation report evaluating the overall effectiveness of this policy which will be made available to the Indian tribes. The office will seek tribal feedback on the annual consultation report and consider any comments from Indian tribes and federal participants to determine whether DOL should make any amendments to this policy.
5. The designated Departmental official's office will prepare and submit any reports required to be submitted to the Office of Management and Budget under Executive Order 13175 and the November 5, 2009 Presidential Memorandum.
The designated Departmental official to coordinate the implementation of this policy will be the Director, Office of Public Engagement, working in conjunction with the Department's Office of Intergovernmental Affairs in the Office of Congressional and Intergovernmental Affairs, or other Departmental official in the Office of the Secretary, as designated by the Secretary.
The duties and responsibilities of the designated Departmental official include: Serving as the Secretary's expert informational resource on tribal matters; maintaining an overall understanding of tribal concerns and issues as they relate to DOL programs and coordinating and managing the Secretary's policies for Indian tribes; coordination of tribal site visits for DOL executive leadership; serving as DOL's representative on interdepartmental working groups on tribal matters; conducting periodic intradepartmental meetings and otherwise overseeing the implementation of the Department's tribal consultation policy by DOL operating agencies; providing advice and assistance to DOL agencies and regional field offices on tribal matters; and conducting outreach to national tribal government organizations.
Each DOL operating agency will designate a senior official as having primary responsibility for tribal matters. The designated Departmental official's office will maintain an up-to-date list clearly identifying the agency tribal officials and their contact information and this information will be made available to Indian tribes. DOL agencies should also designate an alternate official to serve in the absence of the primary official.
The duties of the agency officials having responsibility for tribal matters include: Having and maintaining knowledge of this policy and the government-to-government relationships and sovereign status of Indian tribes; serving as the primary liaison with Indian tribes for their agency; ensuring the consultation responsibilities of their agencies are carried out, including those of their regional offices; and reporting to the administration in their respective agencies, as well as the designated Departmental official. Unless otherwise approved by the designated Departmental official, these responsibilities shall not be placed within the agency Offices of Civil Rights, as tribal relations and consultations are treaty, trust, and government-to-government based, and
For the purposes of this policy, the following definitions apply:
American Indian and Alaska Native (AI/AN)—A member of an American Indian or Alaska Native tribe, band, nation, pueblo, village, or community of indigenous peoples in the United States, as membership is defined by the tribal community, including Native Hawaiians.
AI/AN Organization—An AI/AN organization or group having members that are not representatives of federally recognized Indian tribal governments, such as state tribes and members of urban AI/AN groups that are not located on Indian tribal lands.
Consultation—An enhanced form of communication consisting of an open and free exchange of information and opinion among parties which emphasizes trust, respect, and shared responsibility. The consultation process enables mutual understanding, facilitates the effort to reach consensus on issues, and contributes to informed decision making.
Deliberative Process Privilege—A privilege exempting the Federal Government from disclosure of government agency materials containing opinions, recommendations, and other internal communications that are part of the deliberative process within the Department or agency.
Department—Means the U.S. Department of Labor.
DOL Operating Agency—A Department of Labor administration, agency, bureau, office, or division that: (1) Has operational responsibility for a Departmental program that has tribal implications; or (2) has been designated by the Secretary to participate in this policy.
Executive Order—An order issued by the Federal Government's executive on the basis of authority specifically granted to the executive branch (as by the U.S. Constitution or a Congressional Act).
Indian Tribe—An Indian or Alaska Native tribe that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a), and with whom the Federal Government maintains a government-to-government relationship, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (Pub. L. 92-203; 43 U.S.C. 1601 et seq.). The Department of the Interior's Bureau of Indian Affairs maintains and regularly publishes the official list of federally recognized Indian tribes which are generally established pursuant to a federal treaty, statute, executive order, court order, or a federal administrative action making these tribes eligible for certain federal programs and benefits because of their status as Indians. A federally recognized Indian tribe may expressly delegate a third party to represent the tribe in all tribal consultations with the Department of Labor, provided the Department is notified of such delegation in writing prior to the consultation. An Indian tribe may rescind its delegation at any time, but the rescission should occur in writing, if practicable.
Policies or Actions with Tribal Implications—Refers to proposed legislation, regulations, policies, and actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This encompasses a broad range of DOL programs and activities targeted at tribal governments or having AI/ANs as participants including, but not limited to, tribal program management, rulemaking, regulations, policies, waivers and flexibility; grant programs; contracting opportunities; regulatory guidance; or other DOL activities that would have a substantial direct effect on a tribe's traditional way of life, tribal lands, tribal resources, or the ability of the tribe to govern its members or to provide services to its members. This term does not include matters that are the subject of litigation or that are undertaken in accordance with an administrative or judicial order.
Secretary—Means the Secretary of Labor.
Substantial Direct Compliance Costs—Those costs incurred directly from implementation of changes necessary to meet the requirements of a federal mandate. Because of the large variation in resources among tribes, “substantial costs” will vary by Indian tribe. Where necessary and appropriate, the Secretary will determine the level of costs that represent “substantial costs” in the context of an Indian tribe's resource base.
To the Extent Practicable and Permitted by Law—Refers to situations where the opportunity for consultation is limited due to practical constraints including time, budget, or other such reason, and situations where other legal requirements take precedence.
Tribal Committee, Task Force, or Work Group—A group composed of Indian tribal officials or their designees with authority to represent their interests or act on their behalf that is formed to work on a particular policy, practice, issue, or concern. This can include representatives of existing organizations representing federally recognized tribes, such as the National Congress of American Indians.
Tribal Officials—Tribal council members and delegates, chairpersons, or other elected or duly appointed officials of the governing bodies of Indian tribes or authorized intertribal organizations or their designees with authority to represent them or act on their behalf.
1. Inapplicability of the Federal Advisory Committee Act (FACA). In accordance with section 204(b) of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), the provisions of FACA are not applicable to consultations between the Federal Government and elected officers of tribal governments or their designated employees with authority to act on their behalf. Therefore, FACA is generally not applicable to consultations undertaken pursuant to this tribal consultation policy. As the Office of Management and Budget stated in its guidelines implementing section 204(b):
This exemption applies to meetings between Federal officials and employees and * * * tribal governments acting through their elected officers, officials, employees, and Washington representatives, at which `views, information, or advice' are exchanged concerning the implementation of intergovernmental responsibilities or administration, including those that arise explicitly or implicitly under statute, regulation, or Executive Order. The scope of meetings covered by this exemption should be construed broadly to include meetings called for any purpose relating to intergovernmental responsibilities or administration. Such meetings include, but are not limited to, meetings called for the purpose of seeking consensus, exchanging views, information, advice, and/or recommendations; or facilitating any other interaction relating to intergovernmental responsibilities or administration. (OMB Memorandum 95-20 (September 21, 1995), pp. 6-7, published at 60 FR 50651, 50653 (September 29, 1995)).
If, however, DOL were to form an advisory committee consisting of (non-federally recognized) AI/AN organizations or groups lacking the
2. Reservation of Authorities. Nothing in this policy waives or diminishes the U.S. Government's rights, authorities, immunities, or privileges, including the deliberative process privilege. Among other things, internal communications on the development of proposed legislation, enforcement policy, and other internal policy matters are part of the deliberative process by the Executive Branch and will remain confidential. Nothing in this policy waives or diminishes any tribal rights, authorities, immunities, or privileges including treaty rights and sovereign immunities, and this policy does not diminish any rights or protections afforded to individual AI/ANs under federal law.
3. Disclaimer. This document is intended to improve the Department's management of its relations and cooperative activities with Indian tribes. DOL has no obligation to engage in any consultation activities under this policy unless they are practicable and permitted by law. Nothing in this policy requires any budgetary obligation or creates a right of action against the Department for failure to comply with this policy nor creates any right, substantive or procedural, enforceable at law by a party against the United States, its agencies, or any person.
4. Effective Date. The Tribal Consultation Policy is effective December 4, 2012 and shall apply to all prospective actions taken by the Department as described herein.
National Science Foundation.
Notice of Permit Applications Received under the Antarctic Conservation Act of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 670 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by January 3, 2013. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Polly A. Penhale at the above address or (703) 292-7420.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
The applications received are as follows:
1.
Introduce non-indigenous species into Antarctica. The applicant will use 5 × 100 mls each of
West Antarctic Peninsula, specifically Flanders, Andvord, Wilhelmina and Charlotte Bays, and in the adjacent areas of the Gerlache Strait.
March 1, 2013 to March 1, 2014
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact.
John Hickman, Division of Waste Management and Environmental Protection, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-00001; telephone 301-415-3017, email
The U.S. Nuclear Regulatory Commission (NRC) staff is considering a request dated May 2, 2012, (ML12135A295) as supplemented by email dated July 16, 2012, (ML123200007) by Pacific Gas and Electric Company (PG&E, the licensee) for alternate disposal of approximately 100,000 ft
This Environmental Assessment (EA) has been developed in accordance with the requirements of 10 CFR 51.21.
On July 2, 1976, Humboldt Bay Power Plant (HBPP) Unit 3 was shut down for annual refueling and to conduct seismic modifications. In 1983, updated economic analyses indicated that restarting Unit 3 would probably not be cost-effective, and in June 1983, PG&E announced its intention to decommission the unit. On July 16, 1985, the NRC issued Amendment No. 19 to the HBPP Unit 3 Operating License to change the status to possess-but-not-operate. In December 2008, PG&E completed the transfer of spent fuel from the fuel storage pool to the dry-cask Independent Spent Fuel Storage Installation and the decontamination and dismantlement phase of HBPP Unit 3 decommissioning commenced.
PG&E requested NRC authorization for the disposal of waste from the decommissioning of HBPP Unit 3 at the USEI facility in accordance with 10 CFR 20.2002. This waste consists of approximately 100,000 ft
The waste would be transported by truck from HBPP in Eureka, California to the USEI facility, Grand View, Idaho in the Owyhee Desert. The USEI facility is a RCRA Subtitle C hazardous waste disposal facility permitted by the State of Idaho. The USEI site has both natural and engineered features that limit the transport of radioactive material. The natural features include the low precipitation rate [i.e., 18.4 cm/year (7.4 in./year)] and the long vertical distance to groundwater (i.e., 61-meter (203-ft) thick on average unsaturated zone below the disposal zone). The engineered features include an engineered cover, liners, and leachate monitoring systems. Because the USEI facility is not licensed by the NRC, this proposed action would require the NRC to exempt USEI from Atomic Energy Act of 1954, (AEA) and NRC licensing requirements with respect to the low-contaminated material authorized for disposal.
The subject waste material consists of hazardous waste, soil, and debris containing low-activity radioactive debris generated during the demolition of structures and remediation activities at Unit 3. This proposed alternate disposal would conserve low-level radioactive waste disposal capacity at licensed low-level radioactive waste disposal sites.
The NRC staff has reviewed the evaluation performed by the licensee to demonstrate compliance with the 10 CFR 20.2002 alternate disposal criteria. Under these criteria, a licensee may seek NRC authorization to dispose of licensed material using procedures not otherwise authorized by the NRC's regulations. A licensee's supporting analysis must show that the radiological doses arising from the proposed 10 CFR 20.2002 disposal will be as low as reasonably achievable and within the 10 CFR Part 20 dose limits.
PG&E performed a radiological assessment in consultation with USEI. Based on this assessment, PG&E concludes that potential doses to members of the public, including workers involved in the transportation and placement of this waste will be approximately one millirem total effective dose equivalent in one calendar year for this project, and well within the “few millirem” criteria that the NRC has established (see NUREG-1757).
The staff evaluated activities and potential doses associated with transportation, waste handling and disposal as part of the review of this 10 CFR 20.2002 application. The projected doses to individual transportation and USEI workers have been appropriately estimated and are demonstrated to meet the NRC's alternate disposal requirement of not more than “a few millirem per year” to any member of the public. Independent review of the post-closure and intruder scenarios confirmed that the maximum projected dose over a period of 1,000 years is also within “a few millirem per year.” Additionally, the proposed action will not significantly increase the probability or consequences of accidents and there is no significant increase in occupational or public radiation exposures.
With regard to potential non-radiological impacts, the proposed action does not have a potential to affect any historic sites. The proposed action does not affect non-radiological plant effluents, air quality, or noise.
The proposed action and attendant exemption of the material from further AEA and NRC licensing requirements will not significantly increase the probability or consequences of accidents, no changes are being made in the types of any effluents that may be released off site, and there is no significant increase in occupational or public radiation exposure.
Due to the very small amounts of radioactive material involved, the environmental impacts of the proposed action are not significant.
Since the proposed action will cause no significant environmental impacts, the only alternative the staff considered is the no-action alternative, under which the staff would deny the disposal request. This denial of the request would only change the location of the disposal site to be used for the material. All other factors would remain the same or similar. Therefore, the environmental impacts of the proposed action and the no-action alternative are similar and the no-action alternative is accordingly not further considered.
The NRC staff has concluded that the proposed action will not significantly impact the quality of the human environment and that the proposed action is the preferred alternative.
NRC provided a draft of this EA to the State of Idaho Department of Environmental Quality for review on August 28, 2012. The State had no comments.
The NRC staff has determined that the proposed action is of a procedural nature and will not affect Endangered Species Act (ESA) listed species or their critical habitat. Therefore, no further consultation is required under Section 7 of the ESA. The NRC staff has also determined that the proposed action is not the type of activity that has the potential to affect historic properties. Therefore, no further consultation is required under Section 106 of the National Historic Preservation Act.
The NRC staff has prepared this EA in support of the proposed action. On the basis of this EA, the NRC finds that there are no significant environmental impacts from the proposed action and that preparation of an environmental impact statement is not warranted. Accordingly, the NRC has determined that a Finding of No Significant Impact is appropriate.
Documents related to this action, including the application and
(1) Letter dated May 2, 2012, “Humboldt Bay Power Plant Unit 3 Request for 10 CFR 20.2002 Alternate Disposal Approval, and 10 CFR 30.11 and 10 CFR 70.17 Exemption of Humboldt Bay Power Plant Waste For Disposal at US Ecology, Inc” [ADAMS Accession Number ML121350326]
(2) Email dated July 16, 2012, providing responses to a request for additional information. [ML12241A273]
(3) NRC letter dated November 2, 2010, approving prior request from Humboldt Bay for 10 CFR 20.2002 alternate disposal and 10 CFR 30.11 exemption. [ML102870344]
If you do not have access to ADAMS, or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737, or by email to
For the U.S. Nuclear Regulatory Commission.
Nuclear Regulatory Commission [NRC-2012-0002].
Weeks of December 3, 10, 17, 24, 31; 2012, January 7, 2013.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of December 10, 2012.
There are no meetings scheduled for the week of December 17, 2012.
There are no meetings scheduled for the week of December 24, 2012.
There are no meetings scheduled for the week of December 31, 2012.
This meeting will be webcast live at the Web address—
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—301-415-1292. Contact person for more information: Rochelle Bavol, 301-415-1651.
The Briefing on Fort Calhoun previously scheduled on October 30, 2012, has been rescheduled on January 8, 2013.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301-415-6200, TDD: 301-415-2100, or by email at
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an email to
Wednesday, December 12, 2012, at 11 a.m.
Commission Hearing Room, 901 New York Avenue NW., Suite 200, Washington, DC 20268-0001.
Part of this meeting will be open to the public. The rest of the meeting will be closed to the public. The open session will be audiocast. The audiocast may be accessed via the Commission's Web site at
The agenda for the Commission's November 7, 2012 meeting includes the items identified below.
1. Report on legislative activities.
2. Report on communications with the public.
3. Report from the Office of General Counsel on the status of Commission dockets.
4. Report from the Office of Accountability and Compliance.
5. Report from the Office of the Secretary and Administration.
6. Selection of vice chair.
Chairman's Public Comment Period (Opportunity for brief comments or questions from the public, including questions on completed dockets).
7. Discussion of pending litigation.
Stephen L. Sharfman, General Counsel, Postal Regulatory Commission, 901 New York Avenue NW., Suite 200, Washington, DC 20268-0001, at 202-789-6820 (for agenda-related inquiries) and Shoshana M. Grove, Secretary of the Commission, at 202-789-6800 or
At its meeting on November 14, 2012, members of the Board of Governors of the United States Postal Service met and voted unanimously to close to public observation its meeting on December 11, 2012, via teleconference.
1. Strategic Issues.
2. Financial Matters.
3. Pricing.
4. Personnel Matters and Compensation Issues.
5. Governors Executive Session—Discussion of prior agenda items and Board Governance.
The General Counsel of the United States Postal Service has certified that the meeting was properly closed under the Government in the Sunshine Act.
Requests for information about the meeting should be addressed to the Secretary of the Board, Julie S. Moore, at (202) 268-4800.
By telephone vote on November 26, 2012, members of the Board of Governors of the United States Postal Service met and voted unanimously to close to public observation its meeting held in Washington, DC, via teleconference. The Board determined that no earlier public notice was possible.
1. Strategic Issues.
2. Pricing.
The General Counsel of the United States Postal Service has certified that the meeting was properly closed under the Government in the Sunshine Act.
Requests for information about the meeting should be addressed to the Secretary of the Board, Julie S. Moore, at (202) 268-4800.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, December 6, 2012 at 2:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Gallagher, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session, and determined that no earlier notice thereof was possible.
The subject matter of the Closed Meeting will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Dated: November 30, 2012.
[77 FR 71203, November 29, 2012]
Closed Meeting.
100 F Street NE., Washington, DC
Monday, December 3, 2012 at 2:00 p.m.
Date Change.
The Closed Meeting scheduled for Monday, December 3, 2012 at 2:00 p.m., has been changed to Tuesday, December 4, 2012 at 2:30 p.m.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Encore Clean Energy, Inc. because it has not filed any periodic reports since the period ended September 30, 2005.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Energy & Engine Technology Corp. because it has not filed any periodic reports since the period ended September 30, 2005.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Equity Media Holdings Corporation because it has not filed any periodic reports since the period ended September 30, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of eTotalSource, Inc. because it has not filed any periodic reports since the period ended September 30, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Extensions, Inc. because it has not filed any periodic reports since the period ended September 30, 2009.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Firepond, Inc. because it has not filed any periodic reports since the period ended December 31, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of GNC Energy Corporation because it has not filed any periodic reports since the period ended September 30, 2003.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EST on November 29, 2012, through 11:59 p.m. EST on December 12, 2012.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its rules to delete obsolete and out-dated rules. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its rules to delete obsolete and out-dated rules. By removing these obsolete and out-dated rules, the Exchange is not proposing to change or alter any obligations, rights, policies or practices enumerated within its rules. Rather, the proposal to delete obsolete and out-dated rules will reduce any potential confusion that may result from having obsolete rules continue to appear in the Exchange's rulebook.
As part of its review to identify obsolete and out-dated rules, the Exchange proposes to delete rules that relate to trading systems that have since been decommissioned by the Exchange and rules that were superseded by later-implemented rules governing the same conduct or circumstances. In particular, the proposed rule changes relate to Exchange rules that previously governed equity trading at the Exchange.
In September 2008, NYSE Euronext acquired the American Stock Exchange LLC (“Amex”).
Specifically, pursuant to Rule 0(b), all transactions conducted on or through the systems and facilities of the NYSE are governed by the Equities Rules in accordance with Rule 0-Equities. Rule 0-Equities further provides that the Equities Rules govern all transactions conducted on the Equities Trading System, i.e., the systems operated by the NYSE.
The following identifies by category the legacy Amex, now NYSE MKT Rules that can be deleted in their entirety as obsolete and out-dated:
Many of the rules being proposed for deletion relate to the “Auction & Electronic Market Integration” (“AEMI”) platform, which Amex operated from September 2006 to November 2008 for trading of listed equity securities. The so-called AEMI rules were adopted in September 2006 in conjunction with the rollout of the AEMI trading system.
Although the Exchange is proposing to delete most of the AEMI rules, it is retaining certain rules that contain definitions that are relevant to current listing and trading in Portfolio Depository Receipts (Rule 1000-AEMI); Index Fund Shares (Rule 1000A-AEMI); Rules of General Applicability (relating to trading of Trust Issued Receipts) (Rule 1200-AEMI); Commodity-Based Trust Shares (Rule 1200A-AEMI); Currency Trust Shares (Rule 1200B-AEMI); and Trading of Partnership Units (Rule 1500-AEMI). The Exchange intends to review the placement of these rules, and their possible relocation, in a subsequent phase of its rule review project. In addition, the Exchange is not proposing to delete NYSE MKT Rule 910—AEMI until such time that the Amex Company Guide is similarly updated to reflect the appropriate cross reference.
The AEMI system was rolled out in phases starting in 2006. Although the AEMI rules were intended to supersede the Amex's then-existing equities trading rules, certain of those equities trading rules were left in place pending the completion of the AEMI rollout, and upon completion, were to have been deleted via a rule filing with the Commission.
As noted above, in connection with its integration into NYSE Euronext, the Exchange adopted new equities trading rules based on the NYSE equities trading rules. Because the rules were adopted while NYSE MKT continued to operate at the 86 Trinity Place location, the Exchange did not simultaneously delete previous rules that were being superseded by the new equities trading rules. Instead, the Exchange adopted Rule 0- Equities, which explained that the new rules superseded any of the old rules that were inconsistent. For the sake of clarity, the Exchange now proposes to delete the former Amex equities trading rules that, pursuant to Rule 0-Equities are now superseded by the equities rules.
Since the integration of the Exchange into NYSE Euronext, the Exchange has conducted its after-hours trading through the NYSE's trading systems, and consequently adopted a version of the NYSE's after-hours trading rules.
The Exchange is also proposing to amend those rules that cross-reference rules that are being deleted pursuant to this filing.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule does not (i) Significantly affect the protection of investors or the public
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
OCC proposes to explicitly state that OCC may reject a request for withdrawal of margin or make an intra-day margin call in situations where a clearing member's projected settlement obligations could exceed OCC's available liquidity resources.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to adopt certain interpretations under existing OCC Rules 608 and 609 in order to place clearing members on notice of situations in which OCC may exercise existing authority to reject a margin withdrawal request, or to make an intra-day margin call, including where a Clearing Member's projected settlement obligations could exceed OCC's available liquidity resources. For this purpose OCC would consider as liquidity resources only margin assets in the form of cash. In its sole discretion, OCC might also consider margin assets in the form of U.S. Government securities, which could be quickly converted to cash, and/or amounts that OCC would be able to borrow on short notice under its credit facility or otherwise.
Rule 609 currently provides that “[OCC] may require the deposit of such additional margin by any Clearing Member in any account at any time during any business day, as such officer
OCC wishes to put Clearing Members on notice of certain specific circumstances in which OCC may take such actions under Rule 608 and 609 by adopting a similar interpretation under each Rule. Specifically, OCC wishes to state expressly that it may refuse a margin withdrawal request or request additional intra-day margin where a Clearing Member's future settlement obligations could result in a need for liquidity in excess of available liquidity resources. Such action might be taken even though OCC has made no adverse determination as to the financial condition of the Clearing Member, the market risk of the Clearing Member's positions, or the adequacy of the Clearing Member's total overall margin deposited in the accounts in question.
A circumstance in which OCC might desire to reject a margin withdrawal request or make an intra-day margin call to ensure that it had sufficient liquidity in connection with a pending settlement obligation involves the “unwinding” of a “box spread” position. A box spread position involves a combination of two long and two short options on the same underlying interest with the same expiration date that results in an amount to be paid or received upon settlement that is fixed regardless of fluctuations in the price of the underlying interest. Box spreads can be used as financing transactions, and they may require very large fixed payments upon expiration. In this situation, if much of the margin deposited by the relevant Clearing Member is in the form of common stock and if the Clearing Member failed to make the settlement payment, the available liquidity resources might be insufficient to cover the settlement obligation. In anticipation of this settlement, OCC might therefore require the Clearing Member to deposit intra-day margin in the form of cash, or reject a requested withdrawal of cash or U.S. Government securities, so that liquidity resources would be sufficient to cover the Clearing Member's settlement obligations. Under the proposed interpretations, OCC would always include margin assets of the relevant Clearing Member in the form of cash in determining available liquidity resources and could, in its discretion, consider the amount of margin assets in the form of highly liquid U.S. Government securities and/or the amount that OCC would be able to borrow on short notice. The proposed interpretations make it clear that OCC might exercise its authority under these Rules to address liquidity needs.
OCC believes the proposed rule change is consistent with Section 17A of the Act because it is designed to promote the prompt and accurate clearance and settlement of securities transactions,
OCC does not believe that the proposed rule change would impose a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-OCC-2012-21 and should be submitted on or before December 26, 2012.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to make available, through its member MEB Options LLC (“MEB”), a new market data offering referred to as “Spread Crawler.” The text of the proposed rule change is available on the Exchange's Web site
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to make available, through MEB, a new market data offering referred to as “Spread Crawler,” which will serialize spread book data produced by certain U.S. options exchanges and provide electronic alerts based on end-user defined filters (the “Service”). Spread Crawler, which was developed by MEB, listens to a streaming data feed from all of the U.S. options exchanges that broadcast open complex option orders (i.e. ISE, CBOE, C2, AMEX, ARCA, and PHLX) together with their instrument definition (i.e. option legs) over various multi-cast channels in a FIX format. Spread Crawler then serializes this enormous amount of data and turns each record back into a formal structure so it contains details of both sides of the order (i.e. bid and/or offer), as well as the instrument definition. In addition to actual order detail, this structure would contain the current option and underlying stock National Best Bid or Offer (“NBBO”), together with a calculated theoretical value based on the midpoint of the NBBO (“Order Object”). The Order Object is then run through MEB's filtering technology which applies filtering rules to each record based on a registered end-user input (i.e. custom-set parameters for particular symbols or industry sectors, minimum/maximum sizes, edge and specific expirations, etc.) to determine which registered end-user(s), if any, would be interested in seeing this order. These filtering rules are contained in a relational database and are maintained by the registered end-user through the Spread Crawler Web site where they can add or update individual parameters in real-time. From the matching list of registered end-users, Spread Crawler then creates and transmits individual alerts that outline details of the order in an electronic format selected by the registered end-user (i.e. email, instant messaging, etc.).
The Exchange has entered into an agreement with MEB to offer Spread Crawler to both ISE members and non-ISE members on a subscription basis. Under the Agreement, MEB will operate and maintain the Service and the Exchange will provide certain marketing, first line technical support, accounting and contract administration services for Spread Crawler. In exchange for the provision of such services, the Exchange will receive a percentage of the total monthly subscription fees received by MEB from parties who have subscribed to the Service.
While Spread Crawler will be provided exclusively through the Exchange to both ISE members and non-ISE members, the Exchange represents that it would enter into a similar arrangement for a similar market data offering with any third party, including another ISE member, on the same terms and conditions as the arrangement with MEB, should any such third party request to do so. Furthermore, because MEB does not rely solely on the ISE complex option orders data feed to provide the Service and instead utilizes a general aggregation of data from all of the U.S. options exchanges that broadcast open complex option orders, any third party (regardless of whether it is an ISE-member or non-ISE member) may develop and/or establish a similar market data offering, with or without ISE's participation, and increase the competitive landscape for such market data offerings. In addition, the Exchange confirms that: (i) MEB has not (and will not) receive any preferential treatment as a result of being a ISE member which acts as a service provider to other ISE members and non-ISE members pursuant to this arrangement; (ii) MEB will not have any special, different, or preferential access to the Exchange's data as a result of this arrangement; and (iii) ISE, in the context of being one of
The Exchange believes the Service provides valuable information that can help users make informed investment decisions. The Exchange will make Spread Crawler available to both ISE members and non-ISE members on a subscription basis later this year and will submit a separate proposal to establish fees for this market data offering. ISE expects to launch the Service, through MEB, during the fourth quarter of 2012.
The Exchange believe that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The proposed rule change would allow the Exchange, through MEB, to offer a new market data service on a voluntary and non-discriminatory basis. Specifically, the Exchange believes that the Service is: (i) Voluntary on the part of the Exchange, which is not required to offer the Service and the subscription to the Service is not necessary to execute complex orders on the Exchange; (ii) voluntary on the part of prospective subscribers who are not required to use the Service and it is not necessary to subscribe to such Service in order to execute complex orders on the Exchange; and (iii) non-discriminatory as the Service is made available on a subscription basis to both ISE members and non-ISE members as a “one-size fits all” offering in which all subscribers, regardless of whether each such subscriber is an ISE member or non-ISE member, are subject to the same terms and conditions, receive the same level of service (i.e. there are no differing or advanced/upgraded levels of service or other ability to receive the data contained in the Service faster or differently than other subscribers), and receive alerts based on each user's input.
By offering the Service through an exchange environment in partnership with MEB, the Exchange believes that it will be promoting just and equitable principles of trade, fostering cooperation and coordination with persons engaged in regulating and processing information with respect to, and facilitating transactions in securities, and removing impediments to and perfecting the mechanism of a free and open market and national market system by: (i) Increasing the transparency associated with this product by converting it into an exchange-offered product versus a broker-dealer offered product through the wider dissemination and distribution of useful proprietary data; (ii) clarifying the non-discriminatory availability of such proprietary data to market participants; (iii) increasing availability as the data will be made available to a broader range of market participants (i.e. by offering exchange-wide distribution, this will significantly enhance the current distribution of this product as it is now currently only distributed by a single broker-dealer); and (iv) providing to subscribers of the Service, both ISE members and non-ISE members, a mechanism for managing the complexity of analyzing real-time complex order book data from multiple exchanges with high efficiency which will allow them to make more efficient trading decisions. As such, through this proposed rule change, the Exchange is making a voluntary decision to make this data available in order to improve market quality, to attract order flow, and to increase the transparency and the availability of certain proprietary market data.
ISE does not believe that this proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A)
A proposed rule change filed under Rule 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 26, 2012, Chicago Stock Exchange, Inc. (“CHX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on this proposed rule change so that it has sufficient time to consider the proposed rule change, which would revise the rules relating to compensation committee and compensation advisor requirements.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 25, 2012, each of BATS Exchange, Inc. (“BATS”), NASDAQ OMX BX, Inc. (“BX”), Chicago Board Options Exchange, Incorporated (“CBOE”), The NASDAQ Stock Market LLC (“Nasdaq”), New York Stock Exchange LLC (“NYSE”), NYSE Arca LLC (“NYSE Arca”), and NYSE MKT LLC (“NYSE MKT”) (collectively “Exchanges”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on these proposed rule changes so that it has sufficient time to consider these proposed rule changes, which would revise the rules relating to compensation committee and compensation advisor requirements, and to consider the comment letters that have been submitted in connection with them.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to move the rule text that provides for pegging on the Exchange from Supplementary Material .26 of Rule 70—Equities to Rule 13—Equities and amend such text to (i) permit Designated Market Maker (“DMM”) interest to be set as pegging interest; (ii) change references from national best bid (“NBB”), national best offer (“NBO”) and national best bid or offer (“NBBO”) to best protected bid (“PBB”), best protected offer (“PBO”) and best protected bid or offer (“PBBO”), respectively; (iii) permit pegging interest to peg to the opposite side of the market; and (iv) provide for an offset value to be specified for pegging interest. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to move the rule text that provides for pegging on the Exchange from Rule 70.26—Equities (“Rule 70.26”) (Pegging for d-Quotes and e-Quotes)
The New York Stock Exchange LLC (“NYSE”) adopted NYSE Rule 70.26 as part of its Hybrid Market initiative to provide the ability for Floor brokers to add pegging instructions to e-Quotes.
As set forth in Rule 70.26(i), e-Quotes, other than tick-sensitive e-Quotes, may be set to peg to the NBB (for pegging interest to buy) or to the NBO (for pegging interest to sell) as the NBBO changes, so long as the NBBO is at or within the limit price. Rule 70.26(ii) specifies that d-Quotes may also employ pegging. Rule 70.26(iii) provides that pegging is active only when auto-quoting is active and that Exchange systems will reject e-Quotes that employ pegging that are entered 10 seconds or less before the scheduled close of trading. Rule 70.26(iv) provides that pegging e-Quotes and d-Quotes trade on parity with other interest at the NBBO after interest entitled to priority is executed, and Rule 70.26(vi) provides that a pegging e-Quote or d-Quote that sets the Exchange best bid or offer is entitled to priority.
Rule 70.26(v) provides that pegging is reactive, and that an e-Quote or d-Quote will not establish the NBBO as a result of pegging. Rule 70.26(vii) provides that pegging e-Quotes will only peg to non-pegging interest that is within the pegging range selected by the Floor broker, and that such non-pegging interest may be available on the Exchange or be a protected bid or offer on an away market. Rule 70.26(viii) provides that an e-Quote or d-Quote will not sustain the NBBO as a result of pegging if there is no other non-pegged interest at that price, and such price is not the e-Quote's or d-Quote's limit price. Rule 70.26(viii)(A) and (B) provide that if a buy (sell) pegging e-Quote reaches its lowest (highest) quotable price and it is the NBB (NBO), such interest will remain displayed at the NBB (NBO) even if all other interest at that price cancels. Rule 70.26(ix) further provides detail of definitions of the price range that a Floor broker may designate for pegging e-Quotes, which is a price range that a Floor broker can add that is in addition to the limit price for the pegging e-Quote, provided that it is not inconsistent with the order's limit price.
Rule 70.26(x) provides that pegging interest will join the NBB or NBO provided that it is within the e-Quote's pegging range. As noted in Rule 70.26(x)(A), a pegging e-Quote will not join the NBBO if it is locking or crossing the Exchange best bid or offer, in which case the pegging e-Quote would peg to the next available best-priced non-pegging interest. Rule 70.26(x)(B) further provides that if the NBBO is not within the price range specified for the pegging e-Quote, it will peg to the next available best-priced non-pegging interest within the price range selected by the Floor broker.
Rule 70.26(xi) also provides that if a pegging range has not been included, the pegging e-Quote will peg to the NBBO so long as the NBBO is within the limit price of the e-Quote. Rule 70.26(xii) provides that the discretionary price range of a d-Quote will move with a pegging d-Quote, subject to any floor or ceiling set by the Floor broker. Rule 70.26(xii)(A)-(C) then set forth that if the NBBO moves out of the range of the pegging e-Quote, the pegging e-Quote will remain at the best price to which there may be non-pegging interest to peg, and that once the NBBO returns to within the price range designated for the pegging e-Quote, it will once again peg to the NBBO. Finally, Rule 70.26(xiii) provides that a Floor broker may establish a minimum size of same-side volume to which the e-Quote or d-Quote will peg.
As noted above, the Exchange proposes to permit DMM interest to be set as pegging interest. Because pegging for DMM interest would generally be the same as pegging for e-Quotes and d-Quotes, the Exchange proposes to amend the existing text, as described in more detail below, to define the term “pegging interest” to include e-Quotes, d-Quotes, and DMM interest.
In particular, the Exchange notes that other markets have recently been approved to provide market makers with pegging order functionality so that market makers may automatically track the NBBO in compliance with the market-wide market maker quoting requirements.
The Exchange also proposes to change references to NBB, NBO and NBBO throughout Rule 70.26 to PBB, PBO and PBBO, respectively. The Exchange believes that these changes are more consistent with the requirements of the Regulation NMS Order Protection Rule
The Exchange further proposes to expand the pegging functionality to permit pegging to the opposite side of the market. The existing functionality, for which pegging interest to buy (sell) pegs to the PBB (PBO), would be renamed in the rule as a “Primary Pegging Interest.”
The Exchange also proposes to provide for an offset value, which would be a specified amount by which the price of pegging interest would differ from the price of the interest to which it pegs.
The Exchange believes that adding Market Pegging functionality would enable pegging interest to potentially establish a better price than is currently available, thereby reducing the size of the spread for a security. For example, if the PBBO in a security is $10.05-$10.07, and the buy pegging interest is pegged to the PBO with an offset of $0.01, the buy pegging interest would post on the Exchange as a $10.06 bid, which would be a new PBB that reduces the spread and creates a tighter market. The Exchange notes that unlike Primary Pegging Interest, which currently cannot establish or sustain the PBBO as a result of pegging, Market Pegging Interest can establish or sustain a PBB or PBO.
As noted above, the Exchange proposes to delete Rule 70.26 in its entirety and move the text that provides for pegging to Rule 13. Because pegging interest is being expanded to include DMM interest, the Exchange believes that Rule 70, which concerns Floor broker interest only, is no longer the proper rule within which to provide for pegging. Rather, because pegging is a type of modifier, the Exchange believes it is more appropriate to provide for pegging within Rule 13 as a defined term referred to as “pegging interest.” The Exchange notes that Rule 13 is currently titled “Definition of Orders.” However, Rule 13 currently provides for orders
As proposed, the new pegging interest section of Rule 13 would replace the existing text of Rule 70.26, with numerous non-substantive changes, as well as add new rule text to incorporate the elements proposed above, i.e., permitting DMM interest to be set as pegging interest, changing NBBO to PBBO, adding the Market Pegging Interest functionality, and providing for an offset value to be specified. The Exchange believes that the proposed changes to the rule text, as incorporated in Rule 13, result in a more streamlined rule that eliminates redundancy in the current rule while also incorporating the new elements in a logical and comprehensive manner. For example, rather than referring to “pegging e-Quotes” or “pegging d-Quotes” throughout the rule, the Exchange proposes to use the term “pegging interest,” unless the rule is specific only to a particular type of interest. In addition, the Exchange proposes to combine concepts that are currently addressed separately or in multiple locations within Rule 70.26, but that can be logically combined into streamlined rule text (e.g., the text discussing the permissible price range and how it impacts pegging).
The following sets forth the proposed rule changes (all references to proposed paragraphs are to the proposed new pegging interest text of Rule 13):
• Proposed paragraph (a) provides that “pegging interest” means displayable or non-displayable interest to buy or sell at a price set to track the PBB or PBO as the PBBO changes. The proposed rule text would replace the general description of pegging in Rule 70.26(i), with certain changes. As discussed above, from a substantive perspective, the Exchange proposes to replace references to the NBB, NBO, and NBBO with references to the PBB, PBO, and PBBO. The Exchange proposes to delete the reference to the limit price of an e-Quote as that concept will now be part of proposed paragraph (a)(4), relating to the specified price range of pegging interest. In addition, the Exchange proposes a clarifying rule change to add that pegging interest may be for displayable or non-displayable interest. The current pegging functionality is available for all e-Quotes and d-Quotes, whether intended for display or not, and the Exchange proposes a clarifying rule change to make clear that pegging interest is available for both displayable and non-displayable interest.
• Proposed paragraph (a)(1) provides that pegging interest can be an e-Quote, d-Quote, or DMM Interest. The proposed rule text would replace without any substantive change rule text from Rule 70.26(i) referencing e-Quotes and Rule 70.26(ii), which references d-Quotes. The proposal to add DMM interest is new rule text, as described in more detail above.
• Proposed paragraph (a)(1)(A) provides that pegging interest may not include a sell “plus” or buy “minus” instruction, which replaces without any substantive change the current text in Rule 70.26(i) that a tick-sensitive e-Quote is not permitted to peg. A “tick sensitive” e-Quote is one that includes a sell “plus” or buy “minus” instruction, which are existing defined terms in Rule 13. Therefore, the Exchange proposes to use the sell “plus” or buy “minus” terminology instead of the current “tick sensitive” language, which is not a defined term in Exchange rules.
• Proposed paragraph (a)(1)(B) would replace without any substantive change the second sentence of Rule 70.26(iii), which provides that Exchange systems shall reject a pegging e-Quote or d-Quote that is entered 10 seconds or less before the scheduled close of trading.
• Proposed paragraph (a)(1)(C) would replace without any substantive change Rule 70.26(xii) by specifying that discretionary instructions associated with a pegging d-Quote would move as the d-Quote pegs to the PBBO, subject to any price range and limit price that may be specified. The Exchange does not propose to include the reference to e-Quote that is currently in Rule 70.26(xii) because a d-Quote is an e-Quote with discretionary instructions.
• Proposed paragraph (a)(2) would replace without any substantive change the first sentence of Rule 70.26(iii), by specifying that pegging is only active when auto-quoting is active.
• Proposed paragraph (a)(3) would replace the rule text in Rule 70.26(vii) by specifying that pegging interest shall peg to a price that is based on either (A)
• Example 1: Assume that the Exchange best bid and offer, which is also the PBBO, is $10.05—$10.07, and there is buy Market Pegging Interest pegged to the PBO with an offset value of $0.01, such Market Pegging Interest would establish a new PBB and Exchange best bid of $10.06. Because the Market Pegging Interest established a new PBB, Primary Pegging Interest to buy could peg to that $10.06 price and therefore would be pegging to pegging interest.
• Example 2: Assume again that the Exchange best bid or offer, which is also the PBBO, is $10.05—$10.07, with 100 shares at the bid, and there is buy Primary Pegging Interest “A” of 500 shares with an offset of $0.01, which would be at a priced at $10.04, and that is the only Exchange interest priced at $10.04. Assume further there is buy Primary Pegging Interest “B” that will only peg if there is minimum same-side volume of 500 shares.
• Proposed paragraph (a)(4) provides that pegging interest shall peg only within the specified price range for the pegging interest. The Exchange notes that while the proposed language is new rule text, the proposed paragraph does not make any substantive changes to the current rule, but rather consolidates rule text from separate parts of the existing rule in a streamlined format. In particular, the proposed rule would replace the remaining text in Rules 70.26(i) (that pegging interest must be within the e-Quote's limit price), 70.26(vii) (that pegging interest pegs to interest within the price range selected by the Floor broker), and 70.26(ix), including (A) through (D) of that subsection, by replacing the detailed “price range” discussion within current Rule 70.26(ix) by specifying instead that pegging interest shall peg only within the specified price range for the pegging interest. For example, Rule 70.26(ix)(D) currently specifies that the price to which pegging interest pegs cannot be higher (lower) than the limit price of the buy (sell) pegging interest, which is also currently covered in Rule 70.26(i).
• Proposed paragraph (a)(4)(A) specifies that if the PBBO, combined with any offset value, is not within the specified price range, the pegging interest would instead peg to the next available best-priced interest that is within the specified price range. Other than addressing how the offset value impacts the pegging interest, the reference to NBBO changing to PBBO, replacing the phrase “the price range selected by the Floor broker” with “the specified price range,” this text is substantively the same and replaces current Rule 70.26(x)(B).
• Proposed paragraph (a)(4)(B) would replace without any substantive change the current Rule 70.26(xii)(A), (B) and (C) by specifying that pegging interest that has reached its specified price range will remain at that price if the PBBO goes beyond such price range and that if the PBBO returns to a price within the specified price range, it shall resume pegging. The Exchange notes that this text is substantively the same as in current Rule 70.26(xii)(A), (B), and (C), albeit in a streamlined format. The Exchange further notes that the proposed rule text replaces without any substantive change concepts set forth in Rule 70.26(x) (that pegging interest will peg to the NBBO so long as it is in the specified price range) and 70.26(xi) (pegging interest without a specified price range will peg based on the limit price of the order).
• Proposed paragraph (b) defines the “offset value,” as discussed in more detail above.
• Proposed paragraph (c) defines the term “Primary Pegging Interest,” as discussed in more detail above.
• Proposed paragraph (c)(1) would replace Rule 70.26(x)(A) by specifying that Primary Pegging Interest shall not peg to a price that is locking or crossing the Exchange best offer (bid), but instead would peg to the next available best-priced interest that would not lock or cross the Exchange best offer (bid). In moving the text from Rule 70.26(x)(A), the Exchange proposes two minor changes: to change the reference from the NBB (NBO) to the term “price” and to delete the term “non-pegging interest.” The Exchange proposes these modifications because, as discussed above in connection with proposed paragraph (a)(3), there may be circumstances where because of the offset value, pegging interest may peg to a price established by pegging interest, which in some cases, may not be the PBBO.
• Proposed paragraph (c)(2) would replace without substantive change Rules 70.26(v), (viii), (viii)(A), and (viii)(B) by specifying that Primary Pegging Interest will not establish a PBB (PBO) or sustain a PBB (PBO) as a result of pegging.
• Proposed paragraph (c)(3) would replace without any substantive change Rule 70.26(vi) by specifying that Primary Pegging Interest may establish an Exchange best bid or offer. The Exchange proposes to replace the rule text set forth in Rule 70.26(vi) that pegging interest that sets the Exchange best bid or offer is entitled to priority by adding to Rule 72—Equities that pegging interest may have priority interest.
• Proposed paragraph (c)(4) provides that Primary Pegging Interest may include an offset value for which the adjusted price for buy (sell) pegging interest shall be the PBB (PBO) minus (plus) the offset value, which is new rule text, as discussed in greater detail above.
• Proposed paragraph (c)(5) would replace without any substantive change Rule 70.26(xiii) by specifying that Primary Pegging Interest may be designated with a minimum size of same-side volume to which such pegging interest shall peg. Other than the references to NBB and NBO changing to PBB and PBO, respectively, this text is substantively the same as in current Rule 70.26(xiii).
• Proposed paragraph (d) provides for new rule text related to the new Market Pegging Interest, which is discussed in greater detail above. More specifically, proposed paragraph (d)(1) would provide that Market Pegging Interest shall not peg to a price that is locking or crossing the Exchange best offer (bid), but instead shall peg to a price one minimum price variation lower (higher) than the Exchange best bid or offer. This proposed functionality is intended to prevent Market Pegging Interest from locking or crossing the Exchange best bid or offer.
The Exchange proposes to delete without replacing Rule 70.26(iv), which provides that pegging interest trades on parity with other interest at the NBBO after interest entitled to priority is executed. The Exchange believes that this text is superfluous, in that pegging interest is not treated differently than non-pegging interest for purposes of determining parity, as set forth in Rule 72—Equities, and Rule 72—Equities governs the allocation of executions and priority.
The Exchange further proposes to add new subsection (xii) to Rule 72(c)—Equities to codify how Exchange systems treat modifications to orders for purposes of time sequencing. Specifically, if an order is modified solely to reduce the size of the order, Exchange systems accept such a modification without changing the time stamp of original order entry.
Currently, any other modification to an order, including increasing the size of the order or changing the price of the order, results in the order receiving a new time stamp. Accordingly, the Exchange proposes to codify that any other modification of an order, such as increasing the size or changing the price of an order, shall receive a new time stamp. The Exchange notes that the proposed rule language covers any modification of an order, whether directed by a member organization that entered the order or entered by Exchange systems pursuant to rule.
The proposed changes to Rule 72(c)(xii)—Equities will be effective on the operative date of this filing. The Exchange will announce the implementation date of the proposed rule change as it relates to pegging interest changes in a Trader Update to be published no later than 90 days following publication of the notice in the
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that expanding the pegging functionality to DMM interest is consistent with the Act because it will remove impediments to, and perfect the mechanism of a free and open market and national market system and, in general, protect investors and the public interest by providing a mechanism for DMMs to assist them with meeting their market-making obligations to maintain quoting interest at or near the NBBO. The Exchange notes that two other markets have been approved to offer pegging functionality expressly for market markers for a similar purpose.
The Exchange further notes that expanding pegging functionality to DMM interest is not designed to permit unfair discrimination. The Exchange believes that expanding the functionality to DMMs is consistent with the existing approved rules, as well as consistent with the Act because the expansion is narrowly tailored to offer the functionality to a class of participants that has an affirmative obligation to maintain a quote at or near the NBBO.
As discussed above, rather than adding the concepts for the Market Peg functionality, the offset value, and expansion to DMM interest in Rule 70.26, the Exchange proposes to restructure the text of Rule 70.26 and move it to Rule 13. The Exchange believes that this will more appropriately address how pegging operates and consolidates rule text relating to orders and modifiers in single location in the rules. In this regard, the proposal to change references to NBB, NBO and NBBO to PBB, PBO and PBBO, respectively, would add greater specificity regarding the interest to which pegging interest may peg. The Exchange also believes that these changes are more consistent with the requirements of the Regulation NMS Order Protection Rule
Additionally, use of the proposed Market Pegging Interest with an offset value, as well as the proposed offset functionality for Primary Pegging Interest, would provide greater flexibility with respect to the price to which pegging interest may peg and would encourage tighter spreads that move as the PBBO moves. The Exchange believes that this would remove impediments to, and perfect the mechanism of, a free and open market and a national market system. Additionally, requiring an offset value to be specified for pegging interest that pegs to the opposite side of the market would prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, and foster cooperation and coordination with persons engaged in facilitating transactions in securities by preventing pegging interest from locking or crossing the opposite side of the market. The Exchange further believes that the proposal fosters competition as other markets already offer similar functionality.
The Exchange also believes that the proposed rule change would promote clarity and transparency by adding greater specificity with respect to the interest to which pegging interest may peg. In this regard, the proposed realignment and consolidation of existing rule text would result in a clearer rule, which would benefit all member organizations as well as others that read the rule.
The Exchange further believes that the proposed rule change would promote clarity and transparency by removing superfluous rule text that merely describes the manner in which all trading interest is treated, regardless of whether it is pegging interest. For example, removing the text within current Rule 70.26(iv), which provides that pegging interest trades on parity with non-pegging interest, would eliminate potential confusion regarding whether pegging interest is treated differently than non-pegging interest with respect to determining parity.
Finally, the Exchange believes that the proposed change to Rule 72-Equities to codify which modifications to an order that Exchange systems accept and time stamp treatment for such modified orders would promote clarity and transparency and therefore remove impediments to, and perfect the mechanism of, a free and open market and a national market system because the proposed rule change makes clear when a modification to an order results in a new time stamp for that order.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 26, 2012, National Stock Exchange, Inc. (“NSX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on this proposed rule change so that it has sufficient time to consider this proposed rule change, which would revise the rules relating to compensation committee and compensation advisor requirements.
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the
The Exchange proposes to amend its fees and rebates applicable to Members
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to introduce new flags ZA and ZR for Members that utilize Retail Orders. Flag ZA is proposed to be yielded for those Members that use Retail Orders that add liquidity to EDGX and is proposed to be assigned a rebate of $0.0032 per share. Flag ZR is proposed to be yielded for those Members that use Retail Orders that remove liquidity from EDGX and is proposed to be assigned a charge of $0.0030 per share. Footnote 4, in turn, is proposed to be amended to define a “Retail Order” as an agency order that originates from a natural person and is submitted to the Exchange by a Member, provided that no change is made to the terms of the order (e.g., price or side of market), and the order does not originate from a trading algorithm or any other computerized methodology. The Exchange proposes to append Footnote 4 to its default, non-tiered rebate of $0.0023 per share at the top of its fee schedule to signify a rate change if the conditions in Footnote 4 are met.
orders in securities at or above $1.00 that add liquidity to the Exchange, where “default”
refers to the standard rebate offered by the Exchange to Members absent Members
qualifying for additional volume tiered pricing.
The Exchange notes that Members will only be able to designate their orders as “Retail Orders” that add/remove liquidity using the FIX order entry protocol (FIX) but not the HP-API order entry protocol (HP-API). The Exchange also notes that Members using HP-API only who would like to take advantage of the new “Retail Order” flags can subscribe to FIX logical ports with the first five logical ports being provided free of charge while $500.00/month is charged for each additional logical port.
The Exchange also proposes to specify in Footnote 4 that to the extent Members qualify for a rebate higher than $0.0032 per share through other volume tiers, such as the Mega Tier ($0.0035 per share) or Market Depth Tier ($0.0033 per share), Members will earn the higher rebate on Flag ZA instead of its assigned rate. In addition, to the extent Members qualify for a removal rate lower than $0.0030 per share through any other tier, such as the Mega Tier ($0.0029 per share) or Step-up Take Tier ($0.0028 per share), then Members will earn [sic] the lower removal rate on Flag ZR instead of its assigned rate.
A Member would be required to attest, in a form and/or manner prescribed by the Exchange, that they have implemented policies and procedures that are reasonably designed to ensure that every order designated by the Member as a “Retail Order” complies with the Exchange's definition of a Retail Order, as described above. The proposed use of Flags ZA and ZR to identify Retail Orders would be optional for Members. Accordingly, a Member that does not opt to identify qualified orders as Retail Orders would choose not to make an attestation to the Exchange and thereby, not receive the rates associated with Flags ZA or ZR.
Additionally, a Member would be required to have written policies and procedures reasonably designed to assure that it will only designate orders as Retail Orders if all requirements of a Retail Order are met. Such written policies and procedures must require the Member to (i) exercise due diligence before entering a Retail Order to assure that entry as a Retail Order is in compliance with the requirements specified by the Exchange, and (ii) monitor whether orders entered as Retail Orders meet the applicable requirements. If the Member represents Retail Orders from another broker-dealer customer, the Member's supervisory procedures must be reasonably designed to assure that the orders it receives from such broker-dealer customer that it designates as Retail Orders meet the definition of a Retail Order. The Member must (i) obtain an annual written representation, in a form acceptable to the Exchange, from each broker-dealer customer that sends it orders to be designated as Retail Orders that entry of such orders as Retail Orders will be in compliance with the requirements specified by the Exchange, and (ii) monitor whether its broker-dealer customer's Retail Order flow continues to meet the applicable requirements.
The Exchange further proposes that it may disqualify a Member from qualifying for Flags ZA and ZR if the Exchange determines, in its sole discretion, that a Member has failed to abide by the requirements proposed herein, including, for example, if a Member designates orders submitted to the Exchange as Retail Orders but those orders fail to meet any of the requirements of Retail Orders. Tiered or non-tiered default rates would apply based on the Member's qualifying levels for a Member that is disqualified from qualifying for Flags ZA and ZR.
The Exchange also proposes to amend the text of the first paragraph of Footnote 1 to include Flag ZR as part of the list of “removal flags,” where Flag ZR removes liquidity from the EDGX Book
The Exchange also proposes to amend the text of Footnote 2 to include Flag ZR as part of the “remove liquidity” flags
language in the second paragraph of proposed Footnote 4, as described above.
The Exchange proposes to amend the text of Footnote 13, sections (i) and (ii), to include Flags ZA and ZR as qualifying “added flags” and “removal flags,” respectively, for the Investor Tier.
The Exchange proposes to implement these amendments to its fee schedule on December 1, 2012.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is reasonable, equitable and not unfairly discriminatory because it would encourage Members to send additional Retail Orders that add liquidity to the Exchange for execution in order to qualify for an incrementally higher credit for such executions that add liquidity on the Exchange.
The Exchange notes that a significant percentage of the orders of individual investors are executed over-the-counter.
The Exchange also notes that the Commission recently approved a similar proposal by the New York Stock Exchange, Inc. (“NYSE”) and NYSE MKT LLC (“NYSE MKT”).
2012) (SR-NYSE-2011-55; SR-NYSEAmex-2011-84) (the “RLP Approval
Order”).
The Exchange believes that a differential pricing structure for Retail Orders is not unfairly discriminatory. As stated in the NYSE RLP Approval Order, the “Commission has previously recognized that the markets generally distinguish between individual retail investors, whose orders are considered desirable by liquidity providers because such retail investors are presumed on average to be less informed about short-term price movements, and professional traders, whose orders are presumed on average to be more informed.”
2012) (SR-NYSE-2011-55; SR-NYSEAmex-2011-84) (the “NYSE RLP Approval Order”). In conjunction with the approval of the NYSE Retail Liquidity Program, a nearly identical program was proposed and approved to operate on NYSE MKT (formerly, the American Stock Exchange), at 40679-40680 (citing Concept Release on Equity Market Structure and approval of an options exchange program related to price improvement for retail orders). Certain options exchanges deploy this same rationale today through pricing structures that vary for a trading participant based on the capacity of the contra-side trading participant.
The Exchange understands that Section 6(b)(5) of the Act
The Exchange also believes that the proposed rates for Retail Orders (Flags
Moreover, the proposed use of Retail Orders, which are available for all Members that utilize FIX, is equitable and not unfairly discriminatory because FIX is available for all Members on an equal and non-discriminatory basis, as all Members can sign up for new logical ports using FIX or HP-API at a cost of $500/month (the first five DIRECT logical ports being provided free). The Exchange also notes that all Members that it expects will send Retail Orders currently maintain logical ports that utilize FIX. The Exchange also notes that the Members that only utilize HP-API are generally those that are more concerned with latency as they trade for their own accounts where their order flow typically would not qualify as retail order flow. Finally, all order entry protocols on the Exchange do not necessarily support all Exchange functions and are designed differently in order to support the Member base most likely to utilize them.
The Exchange believes its amendments to footnotes 1, 2, and 13 support the Exchange's efforts to achieve consistent application and specificity among the flags on the fee schedule and provide transparency for its Members. First, in SR-EDGX-2012-39, the Exchange discounted certain “removal flags” if a Member satisfied the criteria for the Mega Tier rebate in Footnote 1.
Secondly, in SR-EDGX-2012-46,
Finally, in SR-EDGX-2012-12, the Exchange included “added” and “removal flags” in its calculation of the “add liquidity” to “removed liquidity” ratio to qualify for the Investor Tier.
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
This proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from Members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 24, 2012.
You may send comments identified by Docket Number FAA-2012-1132 using any of the following methods:
•
•
•
•
Theresa White, ANM-113, Standardization Branch, Federal Aviation Administration, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA 98057-3356; email
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 24, 2012.
You may send comments identified by Docket Number FAA-2012-0579 using any of the following methods:
•
•
•
•
Keira Jones (202) 267-4024, or Tyneka Thomas (202) 267-7626, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 24, 2012.
You may send comments identified by Docket Number FAA-2012-1137 using any of the following methods:
•
•
•
•
Theresa White, ANM-113, Standardization Branch, Federal Aviation Administration, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA 98057-3356; email
Federal Transit Administration (FTA), DOT.
Announcement of Project Selections.
The U.S. Department of Transportation (DOT) Federal Transit Administration (FTA) announces the selection of projects to be funded under Fiscal Year (FY) 2012 appropriations for the Over-the-Road Bus (OTRB) Accessibility Program, authorized by Section 3038 of the Transportation Equity Act for the 21st Century (TEA-21). The OTRB Accessibility Program makes funds available to private operators of over-the-road buses to help finance the incremental capital and training costs of complying with DOT's over-the-road bus accessibility rule, published in the
Successful applicants should contact the appropriate FTA Regional Office for grant-specific issues; or Élan Flippin, Office of Program Management, 202-366-3800, for general information about the OTRB Program. Contact information for FTA Regional Offices can be found at
A total of $8.8 million was made available for the program in FY 2012: $6.6 million for intercity fixed-route providers and $2.2 million for all other providers, such as commuter, charter, and tour operators. A total of 114 applicants requested $34.5 million: $23.2 million was requested by intercity-fixed route providers, and $11.3 million was requested by other providers. A total of 77 projects were selected for funding. Project selections were made on a discretionary basis, based on each applicant's responsiveness to statutory project selection criteria published in the April 30, 2012 Notice of Funding Availability.
Grantees selected for competitive discretionary funding should work with their FTA regional office to finalize the electronic grant application in FTA's Transportation Electronic Awards Management System (TEAM) for the projects identified in Tables I and II. A discretionary project identification number has been assigned to each project for tracking purposes and must be used in the TEAM application. Awardees who are new to FTA should contact their regional office immediately for guidance about becoming an FTA grantee. Regional office contact information can be found at
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Maritime Administration's (MARAD's) intention to request extension of approval for three years of a currently approved information collection.
Comments should be submitted on or before February 4, 2013.
Michael Hokana, Maritime Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202-366-0760; or email
Maritime Administration (MARAD).
49 CFR 1.66.
By Order of the Maritime Administrator,
The Surface Transportation Board's Office of Environmental Analysis (OEA) issued a Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS), a Draft Scope of Study, and a notice of scoping meetings in the above-captioned proceeding on October 22, 2012 and published it in the
OEA will issue a Final Scope of Study for the EIS after the close of the scoping comment period. Any comments previously submitted on the NOI and Draft Scope of Study need not be resubmitted.
Scoping comments submitted by mail should be addressed to: Ken Blodgett, Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001, Attention: Environmental filing, Docket No. FD 30186.
Scoping comments may also be filed electronically on the Board's Web site,
Please refer to Docket No. FD 30186 in all correspondence, including e-filings, addressed to the Board. Scoping comments are now due by January 11, 2013. For more information about the Board's environmental review process and this EIS, please call OEA's toll-free number for the project at 1-866-622-4355 or visit the Board-sponsored project Web site at
By the Board, Victoria Rutson, Director, Office of Environmental Analysis.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 56-F, Notice Concerning Fiduciary Relationship of Financial Institution.
Written comments should be received on or before February 4, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of notice should be directed to Martha R. Brinson, at (202) 622-3869, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing Treatment of Shareholders of Certain Passive Foreign Investment Companies.
Written comments should be received on or before February 4, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Martha R. Brinson, at (202) 622-3869, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Department of Veterans Affairs.
Notice with request for comments.
Section 203 of the Department of Veterans Affairs Health Care Personnel Act of 1991 (Pub. L. 102-40), dated May 7, 1991, revised the disciplinary grievance and appeal procedures for employees appointed under 38 U.S.C. 7401(1). It also required the periodic designation of employees of the Department who are qualified to serve on Disciplinary Appeals Boards. These employees constitute the Disciplinary Appeals Board Panel from which Board members in a case are appointed. This notice announces that the roster of employees on the Panel is available for review and comment. Employees, employee organizations, and other interested parties shall be provided, without charge, a list of the names of employees on the Panel upon request and may submit comments concerning the suitability for service on the Panel of any employee whose name is on the list.
Names that appear on the Panel may be selected to serve on a Board or as a grievance examiner after January 3, 2013.
Requests for the list of names of employees on the Panel and written comments may be directed to: Secretary of Veterans Affairs (051), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420. Requests and comments may also be faxed to (202) 273-9776.
Larry Ables, Employee Relations and Performance Management Service (051), Office of Human Resources Management, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420. Mr. Ables may be reached at (202) 461-6172.
Public Law 102-40 requires that the availability of the roster be posted in the
Corporate Senior Executive Management Office, Department of Veterans Affairs.
Notice.
Under the provisions of 5 U.S.C. 4314(c)(4) agencies are required to publish a notice in the
Christine Kluh, Deputy Assistant Secretary, Corporate Senior Executive Management Office (052), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7890.
The membership of the Department of Veterans Affairs Performance Review Board is as follows:
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service, designate revised critical habitat for the northern spotted owl (
The rule becomes effective on January 3, 2013.
The final rule and the associated economic analysis and environmental assessment are available on the Internet at
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
Paul Henson, Field Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE. 98th Ave., Suite 100, Portland, OR 97266; telephone 503-231-6179; facsimile 503-231-6195. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
This final rule describes the revised critical habitat designation for the northern spotted owl under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
We, the U.S. Fish and Wildlife Service (Service), listed the northern spotted owl as threatened on June 26, 1990 (55 FR 26114), because of widespread loss of habitat across its range and the inadequacy of existing regulatory mechanisms to conserve it. We previously designated critical habitat for the northern spotted owl in 1992 and 2008. The 2008 designation (73 FR 47326, August 13, 2008) was subsequently challenged in court. In July 2009, the Federal Government requested voluntary remand of the 2008 revised critical habitat designation. On March 8, 2012, we published in the
Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the
• Approximately 2,918,067 ac (1,180,898 ha) in 4 units and 26 subunits in Washington.
• Approximately 4,557,852 ac (1,844,496 ha) in 8 units and 58 subunits in Oregon.
• Approximately 2,102,050 ac (850,669 ha) in 5 units and 36 subunits in California.
• This designation increases previously designated critical habitat, including the addition of 272,026 ac (110,085 ha) ac of State lands. However, this final critical habitat designation is a decrease from the 13,962,449 ac (5,649,660 ha) identified as meeting the definition of critical habitat in the March 8, 2012 (77 FR 14062) proposed rule.
• We have also excluded areas of State and private land from this designation of critical habitat under section 4(b)(2) of the Act, as explained in the Exclusions section of this rule.
The Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011; hereafter “Revised Recovery Plan”) recommends that land managers: (1) conserve older forest, high-value habitat, and areas occupied by northern spotted owls; and (2) actively manage forests to restore ecosystem health in many parts of the species' range. In developing this critical habitat designation, we also recognize the importance of the Northwest Forest Plan (NWFP) and its land management strategy for conservation of native species associated with old-growth and late-successional forest, including the northern spotted owl. The designation of areas as critical habitat does not change land use allocations or Standards and Guidelines for management under the NWFP, nor does this rule establish any management plan or prescriptions for the management of critical habitat. However, we encourage land managers to consider implementation of forest management practices recommended in the Revised Recovery Plan to restore natural ecological processes where they have been disrupted or suppressed (
We relied on the recovery criteria set forth in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) to determine what is essential to the conservation of the species; therefore we have identified a habitat network that meets the following criteria:
• Ensures sufficient habitat to support stable, healthy populations across the range, and also within each of the 11 recovery units;
• Ensures distribution of northern spotted owl populations across the range of habitat conditions used by the species;
• Incorporates uncertainty, including potential effects of barred owls, climate change, and wildfire disturbance risk; and
• Recognizes that these protections are meant to work in concert with other recovery actions, such as barred owl management.
To assist us in determining critical habitat, we integrated habitat and demographic information (relating to occupancy, survival, reproduction, and movement) to develop a modeling tool that assesses the distribution of habitat quality and population dynamics across the range, and provides a more accurate picture of where high-quality northern spotted owl habitat exists. This model synthesized more than 20 years of data from on-the-ground demographic surveys, and allowed for analysis of how northern spotted owl populations would fare under different habitat conservation scenarios. We determined what is essential to recovery of the northern spotted owl by evaluating the performance of each potential critical habitat scenario considered against the recovery needs of the owl.
• As per the Service's normal practice, we solicited public review and comment on this rulemaking action, using information thus gained to correct and refine our designation.
• We fully considered exclusion of private lands and State lands from the final revised critical habitat, consistent with the best available scientific and commercial information.
The Service appreciates, and is sensitive to, the potential for regulatory burden that may result from our designation of critical habitat for the northern spotted owl under the Act. Our analysis indicated that the revision of critical habitat could have relatively little incremental effect above and beyond the conservation measures already required as a result of its threatened species status under the Act, and thus is not expected to impose substantial additional regulatory burdens. The Service appreciates, and relies on the many partners we have in conservation, including private landowners, Tribes, States, and local governments, and strongly desires to promote conservation partnerships to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people.
It is our intent to discuss only those topics directly relevant to the revised designation of critical habitat in this rule. For further details regarding northern spotted owl biology and habitat, population abundance and trend, distribution, demographic features, habitat use and conditions, threats, and conservation measures, please see the Northern Spotted Owl 5-year Review Summary and Evaluation, completed October 26, 2011, and the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011), completed July 1, 2011. Both of these documents are available on the U.S. Fish and Wildlife Service's Endangered Species Web site at
The northern spotted owl inhabits structurally complex forests from southwestern British Columbia through Washington and Oregon to northern California. The northern spotted owl was listed under the Act as a threatened species in 1990 because of widespread loss of habitat across its range and the inadequacy of existing regulatory mechanisms to conserve it (55 FR 26114; June 26, 1990). Although the rate of loss of habitat due to timber harvest has been reduced on Federal lands over the past two decades, both past and current habitat loss remain a threat to the northern spotted owl. Despite implementation of habitat conservation measures in the early 1990s, Thomas
During the second half of the 20th century, barred owls expanded their range from eastern to western North America, and the range of the barred owl now completely overlaps that of the northern spotted owl (Gutiérrez
It is becoming increasingly evident that solely securing habitat will not be effective in achieving the recovery of the northern spotted owl when barred owls are present (USFWS 2011, p. vi). While conservation of high-quality habitat is essential for the recovery and conservation of the owl, habitat conservation alone is not sufficient to achieve recovery objectives. As stated in the Revised Recovery Plan, “* * * addressing the threats associated with past and current habitat loss must be conducted simultaneously with addressing the threats from barred owls. Addressing the threat from habitat loss is relatively straightforward with predictable results. However, addressing a large-scale threat of one raptor on another, closely related raptor has many uncertainties” (USFWS 2011, p. I-8). A designation of critical habitat is intended to ameliorate habitat-based threats to an endangered or threatened species; critical habitat cannot reasonably be expected to fully address other, non-habitat-related threats to the species. In the case of the northern spotted owl, the recovery goal of supporting population viability and demographically stable populations of northern spotted owls will likely require habitat conservation in concert with the implementation of recovery actions that address other, non-habitat-based threats to the species, including the barred owl. In addition, recovery actions include scientific evaluation of potential management options to reduce the impact of barred owls on northern spotted owls (USFWS 2011, Recovery Action 29 [RA29], p. III-65), and implementation of management actions determined to be effective (USFWS 2011, Recovery Action 30 [RA30], p. III-65).
When developing a critical habitat rule, the Service must use the best scientific information available to identify critical habitat as defined in section (3)(5)(A) of the Act, which are (i) the specific areas within the geographical area occupied by the species at the time it was listed that provide the physical or biological features essential for the conservation of the species, and which may require special management considerations or protection, and (ii) specific areas outside the geographical area occupied by the species at the time it was listed that are otherwise determined to be essential to the conservation of the species. However, like most critical habitat designations, this rule addresses elements of risk management, because we must make recommendations and decisions in the face of incomplete information and uncertainty about factors influencing northern spotted owl populations. This uncertainty exists even though the northern spotted owl is among the most thoroughly studied of listed species. We understand a great deal about the habitats the subspecies prefers and the factors that influence its demographic trends. Nonetheless, considerable uncertainty remains, particularly about interactions among different factors that threaten the owl.
In the face of such uncertainty, the Revised Recovery Plan proposes strategies to address the primary threats to the northern spotted owl from habitat loss and barred owls (USFWS 2011, p. I-7). The effects of climate change and of past management practices are changing forest ecosystem processes and dynamics, including patterns of wildfires, insect outbreaks, and disease, to a degree greater than anticipated in the Northwest Forest Plan (NWFP) (Hessburg
The development of a critical habitat network for the northern spotted owl must take into account current uncertainties, such as those associated with barred owl impacts and climate change predictions (USFWS 2011, p. III-10). These uncertainties require that we make some assumptions about likely future conditions in developing, modeling, and evaluating potential critical habitat for the northern spotted owl; those assumptions are identified clearly in this rule (see Criteria Used to Identify Critical Habitat, below) and in our supporting documentation (Dunk
Given the continued decline of northern spotted owl populations, the apparent increase in severity of the threat from barred owls, and information indicating a recent loss of genetic diversity for the subspecies, retaining both occupied northern spotted owl sites and unoccupied, high-value northern spotted owl habitat across the subspecies' range are key components for recovery (USFWS 2011, p. I-9). High-value habitat is defined in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) as habitat that is important for maintaining northern spotted owls on landscapes, including areas with current and historic use by northern spotted owls. We refer readers to the glossary (Appendix G) of the Revised Recovery Plan for definitions of forest stand conditions and habitat types discussed in this rule.
Accordingly, in this rule, we have identified areas of habitat occupied at the time of listing that provide the physical or biological features essential to the conservation of the northern spotted owl, and that may require special management considerations or protection. When occupied areas were not adequate to achieve essential recovery goals, we also identified some unoccupied areas as critical habitat for the northern spotted owl only upon a determination that such areas are essential to the conservation of the species (see the second part of the definition of critical habitat in section (3)(5)(a)(ii), which states that critical habitat also includes “specific areas outside the geographical area occupied by the species at the time of listing in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.”) However, it is important to note that this revised designation of critical habitat does not include all sites where northern spotted owls are presently known to occur. The habitat modeling that we used, in part, to assist us in developing this revised designation was based primarily on present habitat suitability. While we did also consider the present known locations of northern spotted owls in refining the identified habitat network, not all such sites were included in the revised designation if those areas did not make a significant contribution to population viability (for example, if known sites were too small or isolated to play a meaningful role in the conservation of the species; see Criteria Used to Identify Critical Habitat). This is in accordance with section 3(5)(C) of
Because of the uncertainties associated with the effects of barred owl interactions with the northern spotted owl and habitat changes that may occur as a result of climate change, active adaptive forest management strategies will be needed to achieve results in certain landscapes. Active adaptive forest management is a systematic approach for improving resource management by learning from the results of explicit management policies and practices and applying that learning to future management decisions (USFWS 2011, p. G-1). This critical habitat rule identifies key sources of uncertainty, and the need to learn from our management of forests that provide habitat for northern spotted owls. We have designated a critical habitat network that was developed based on what we determined to be the areas containing the physical and biological features essential for the conservation of the northern spotted owl or are otherwise essential to owl conservation, after taking into consideration information on essential habitats, the current distribution of those habitats, and the best available scientific knowledge about northern spotted owl population dynamics, while acknowledging uncertainty about future conditions in Pacific Northwest forests.
Section 2 of the Act states, “The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Although the conservation of the listed species is the specific objective of a critical habitat designation, the essential physical or biological features that serve as the basis of critical habitat are often essential components of the ecosystem upon which the species depends. In such cases, a fundamental goal of critical habitat management is not only to conserve the listed species, but also to conserve the ecosystem upon which that species depends. This is the case with the northern spotted owl.
An ecosystem is defined as a biological community of interacting organisms and their physical environment, or as the complex of a community of organisms and its environment functioning as an ecological unit (Krebs 1972, pp. 10-11; Ricklefs 1979, pp. 31-32, 869). These ecosystem interactions and functions are often referred to as ecological relationships or processes. Thus, to conserve the northern spotted owl as directed by the Act, one must also conserve the ecological processes that occur within the ecological landscape inhabited by the species. These processes—such as vegetation succession, forest fire regimes, and nutrient cycling—create and shape the physical or biological features that form the foundation of critical habitat. The northern spotted owl was initially listed as a threatened species largely due to the loss or degradation of the late-successional forest ecosystems upon which it depends. A complex interaction of physical or biological factors contribute to the development and maintenance of these ecosystems, which in turn provide the northern spotted owl with the environmental conditions required for its conservation and survival, such as large areas of suitable habitat, nest structures, and sufficient prey to sustain interconnected populations of owls across the landscape. A fundamental goal of critical habitat management should thus be to understand, describe, and conserve these processes, which in turn will maintain the physical or biological features essential to the conservation of the species. This “ecosystem approach” will ultimately have the highest likelihood of conserving listed species such as the northern spotted owl in the long term (Knight 1998, p. 43).
The U.S. Forest Service, which manages the great majority of areas being designated as revised northern spotted owl critical habitat, has prioritized restoring and maintaining natural ecological function and resiliency to its forest lands (Blate
Revised critical habitat for the northern spotted owl includes a diverse forest landscape that covers millions of acres and contains several different forest ecosystems and thousands of plant and animal species. It ranges from moist old-growth conifer forest in the western portion, to a mix of conifers and hardwood trees in the Klamath region, to dry, fire-prone forests in the eastern Cascades. Thousands of species occur in these forest ecosystems, including other listed and sensitive species with very specific biological needs. In areas where prescribed management is needed to maintain ecosystem function, such management is often expensive, logistically difficult, and contentious (Thompson
We reference here the recommendations for habitat management as made in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011). This discussion is provided primarily for consideration by Federal, State, local, and private land managers, as they make decisions on the management of forest land under their jurisdictions and through their normal processes. This critical habitat rule does not take any action or adopt any policy, plan or program in relation to active forest management.
It is important to understand the relationship between northern spotted owl critical habitat and the Northwest Forest Plan (NWFP). In brief, the designation of areas as critical habitat does not change land use allocations or Standards and Guidelines for management under the NWFP. Critical habitat for the northern spotted owl was first designated in 1992 (January 15, 1992; 57 FR 1796). Since 1994, the NWFP has also served as an important landscape-level plan that has contributed to the conservation of the northern spotted owl and late-successional forest habitat on Federal lands across the range of the species (Thomas
In developing this critical habitat designation, the Service recognizes the importance of the NWFP as the overarching land management strategy for conservation of the northern spotted owl and other native species associated with old-growth and late-successional forest. The system of reserves within the NWFP is essential for the conservation and development of large areas of late-successional forest across the landscape; however, because the NWFP was designed to benefit multiple species not every acre of the late-successional reserves (LSRs) provide high-quality habitat for northern spotted owls. In addition, barred owls have become increasingly abundant in the Pacific Northwest and likely have a large effect on the continued decline of northern spotted owl populations. With barred owls now sharing the range of the northern spotted owl, conservation of northern spotted owls outside NWFP reserved areas is increasingly important for species recovery.
In our designation of critical habitat on Federal lands, we identified lands that contain the features essential to the conservation of the species including lands both within NWFP reserves and matrix that function as highly valuable northern spotted owl habitat. As noted above, designation as critical habitat does not change these land use allocations or Standards and Guidelines for management under the NWFP, and we fully recognize the ecological functions and land management goals of the different land use allocations as outlined under the NWFP. While the NWFP has been successful in conserving large blocks of late-successional forest (Thomas
Thomas
1. Conserve old-growth trees and forests on Federal lands
2. Manage NWFP forests as dynamic ecosystems that conserve all stages of forest development (e.g., encompassing the range of conditions between early-seral and old-growth), and where tradeoffs between short-term and long-term risks are better balanced.
3. Recognize the NWFP as an integrated conservation strategy that contributes to all components of sustainability across Federal lands.
It is our hope that management of critical habitat for the northern spotted owl will be compatible with these broader landscape management goals articulated by Thomas
As stated above, many areas of critical habitat do not require active management, and active forest management within such areas could negatively impact northern spotted owls. We are not encouraging land managers to consider active management in areas of high-quality owl habitat or occupied owl sites; rather, we encourage management actions that will maintain and restore ecological function where appropriate. In some areas, forest stands are not on a trajectory to develop into high-value habitat, ecological processes have been disrupted by human actions, or projected climate change is expected to further disrupt or degrade desired forest conditions. In these areas, land managers may choose to implement active management, as recommended in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011), to improve ecological health and development of forest conditions more favorable to northern spotted owls and other biodiversity. For example, LSRs are to be managed to protect and enhance old-growth forest conditions (defined in the Revised Recovery Plan as forests that have accumulated specific characteristics related to tree size, canopy structure, snags, and woody debris and plant associations). According to the NWFP Standards and Guidelines (USDA and USDI 1994), no programmed timber harvest is allowed inside the reserves. However, thinning or other silvicultural treatments inside these reserves may occur in younger stands if the treatments are beneficial to the creation and maintenance of late-successional forest conditions. On the east of the Cascades and in Oregon and California Klamath Provinces, additional management activities may be considered both within and outside reserves to reduce risks of large-scale disturbance (NWFP Standards and Guidelines, p. C-12—C-13).
We also recognize that ecological restoration is not the management goal on all NWFP land use allocations (
Mimicking natural disturbance regimes, such as fire, is an important strategy in North American forest management (Seymour and Hunter 1999, p. 56; Long 2009, p. 1868; Gustafsson
Specifically prescribing such management is beyond the scope or purpose of this document, and should instead be developed by the appropriate land management agency at the appropriate land management scale (e.g., National Forest or Bureau of Land Management District) (USDA 2010, entire; Fontaine and Kennedy 2012, p. 1559; Gustafsson
Some general considerations for managing for the conservation of essential physical or biological features within northern spotted owl critical habitat are discussed in more detail in the
In general, actions that promote ecological restoration and those that apply ecological forestry principles at appropriate scales as described above and in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, pp. III-11 to III-41) may be, in the right circumstances, consistent with the conservation of the northern spotted owl and the management of its critical habitat. However, we emphasize that this rule does not take any action or adopt any policy, plan or program in relation to active forest management. The discussion is provided only for consideration by Federal, State, local and private land managers, as well as the public, as they make decisions on the management of forest land under their jurisdictions and through their normal processes.
The Service supports the goals of maintaining and restoring ecological function and development of future northern spotted owl habitat. We encourage land managers to consider a stronger focus on ecological forestry in areas where commercial harvest and restoration are planned. We recognize the need to balance both the conservation of current owl sites and the development of future owl habitat. However, a better understanding of how ecological forestry approaches affect owls and their prey is needed. Studies have shown negative effects of commercial thinning and other conventional forestry practices on both northern spotted owls (Forsman
Given these concerns, and recognizing that appropriate management actions will vary depending upon site-specific conditions, we provide the following suggestions regarding active forest management for consideration by land managers within critical habitat as consistent with the recommendations of the Revised Recovery Plan for the Northern Spotted Owl:
1. Focus active management in younger forest, lower quality owl habitat, or where ecological conditions are most departed from the natural or desired range of variability.
2. In moist forests on Federal lands, follow NWFP guidelines as informed by the Revised Recovery Plan and focus on areas outside of LSRs (i.e., matrix). In dry forests, follow NWFP guidelines and focus on lands in or outside of reserves
3. Avoid or minimize activities in active northern spotted owl territories (or the high-quality habitat within these territories).
4. Ensure transparency of process so the public can see what is being done, where it is done, what the goal of the action is, and how well the action leads to the desired goal.
5. Practice active adaptive forest management by incorporating new information and learning into future actions to make them more effective, focusing on how these actions affect northern spotted owls and their prey.
Towards this objective of learning critical new scientific insights from research and adaptive management, we especially encourage research and active adaptive forest management on the seven Forest Service Experimental Forests (H.J. Andrews Experimental Forest, Pringle Falls Experimental Forest, South Umpqua Experimental Forest, and Cascades Head Experimental Forest in Oregon; Wind River Experimental Forest and Entiat Experimental Forest in Washington; and Yurok Redwood Experimental Forest in California) within designated northern spotted owl critical habitat. We acknowledge the specific value and contributions of research done within experimental forests in furtherance of the research and active adaptive forest management objectives in the Revised Recovery Plan. These Experimental Forests have four principal scientific advantages that support the specific kinds of research needed to better understand how management affects and potentially enhances northern spotted owl habitat:
(1) These sites are intended for and enabled to conduct manipulative research to test forest management strategies in a rigorous scientific manner;
(2) They have long-term baseline datasets that enable detailed climate/environmental change assessments;
(3) The sites represent a diversity of forest types within the range of northern spotted owl; and
(4) Experimental forests have been the subject of intensive, long-term study that can serve as a backdrop for new research.
Essential research and active adaptive forest management questions, detailed in the Revised Recovery Plan, that could be conducted on Experimental Forests include (but are not limited to):
(a) What vegetation management treatments best accelerate the development of forest structure associated with northern spotted owl habitat functions while maintaining or restoring natural disturbance and provide greater ecosystem resiliency?
(b) What are the effects of wildland and prescribed fire on the structural elements of northern spotted owl habitat?
(c) Can strategically-placed restoration treatments be used to reduce the risk of northern spotted owl habitat being burned by high severity fire within dry forest ecosystems?
(d) What are the effects of epidemic forest insect outbreaks on northern spotted owl occupancy and habitat use immediately following the event and at specified time periods after treatment?
Sound scientific information represents a vital component of our path to recovery for the northern spotted owl (and almost all threatened or endangered species). We believe it would be counterproductive to inhibit or curtail research that is designed to benefit the northern spotted owl and the ecosystem in which it is found, and therefore support research activities within experimental forests.
The northern spotted owl is a medium-sized owl and the largest of the three subspecies of northern spotted owls currently recognized by the American Ornithologists' Union (Gutiérrez
The current range of the northern spotted owl extends from southwest British Columbia through the Cascade Mountains, coastal ranges, and intervening forested lands in Washington, Oregon, and California, as far south as Marin County, California. The subspecies is listed as a threatened species under the Act throughout its range (55 FR 26114; June 26, 1990). Within the United States, the northern spotted owl ranges across 12 ecological regions, based on recognized landscape subdivisions exhibiting different physical and environmental features, often referred to as “physiographic provinces” (Franklin and Dyrness 1988, pp. 5-26; Thomas
For the purposes of developing this rule, and based on Appendix C of the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, pp. C-7 to C-13), we have divided the range of the northern spotted owl into 11 different regions. We used these 11 regions in the habitat modeling that informed this revised designation of critical habitat. The regions used here are more “owl specific” than the physiographic provinces used in the past. In addition to regional patterns of climate, topography, and forest communities, which the physiographic provinces also considered, the 11 regions are based on specific patterns of northern spotted owl habitat relationships and prey base relationships across the range of the species. The 11 regions include the North Coast Olympics; West Cascades North; West Cascades Central; West Cascades South; East Cascades North; East Cascades South; Oregon Coast; Klamath West; Klamath East; Redwood Coast; and Inner California Coast Ranges. We additionally grouped these 11 regions into 4 broad ecological zones (West Cascades/Coast Ranges of Oregon and Washington; East Cascades; Redwood; and Klamath and Northern California Interior Coast Ranges). A map of the 11 regions used for the purposes of habitat modeling, as well as the 4 ecological zones, is provided in Figure 1 of this document. We used these 11 regions as the organizing units for our designation of critical habitat, and the 4 ecological zones for the identification of region-specific primary constituent
Northern spotted owls generally rely on older forested habitats because such forests contain the structures and characteristics required for nesting, roosting, and foraging, and dispersal. Forest characteristics associated with northern spotted owls usually develop with increasing forest age, but their occurrence may vary by location, past forest practices, and stand type, history, and condition. Although northern spotted owl habitat is variable over its range, some general attributes are common to the owl's life-history requirements throughout its range. To support northern spotted owl reproduction, a home range requires appropriate amounts of nesting, roosting, and foraging habitat arrayed so that nesting pairs can survive, obtain resources, and breed successfully. In northern parts of the range where nesting, roosting, and foraging habitat have similar attributes, nesting is generally associated with late-seral or old-growth forest in the core area (Swindle
Population growth can occur only if there is adequate habitat in an appropriate configuration to allow for the dispersal of owls across the landscape. This includes support of dispersing juveniles, as well as nonresident subadults and adults that have not yet recruited into the breeding population. The survivorship of northern spotted owls is likely greatest when dispersal habitat most closely resembles nesting, roosting, and foraging habitat, but owls may use other types of habitat for dispersal on a short-term basis. Dispersal habitat, at a minimum, consists of stands with adequate tree size and canopy cover to provide protection from avian predators and at least minimal foraging opportunities (57 FR 1805, January 15, 1992). In this rule, we consider canopy cover as a vertical measurement of the amount of canopy that would cover the ground.
The three essential functions served by habitat within the home range of a northern spotted owl are:
(1)
(2)
(3)
Because northern spotted owls show a clear geographical pattern in diet, and different prey species prefer different habitat types, prey distribution contributes to differences in northern spotted owl foraging habitat selection across the range. In the northern portion of their range, northern spotted owls forage heavily in older forests or forests with similar complex structure that support northern flying squirrels (
Successful dispersal of northern spotted owls is essential to maintaining genetic and demographic connections among populations across the range of the species. Habitats that support movements between larger habitat patches that provide nesting, roosting, and foraging habitats for northern spotted owls act to limit the adverse genetic effects of inbreeding and genetic drift and provide demographic support to declining populations (Thomas
Successful juvenile dispersal may depend on locating unoccupied suitable habitat in close proximity to other occupied sites (LaHaye
Juvenile dispersal occurs in steps (Forsman
Northern spotted owls can utilize forests with the characteristics needed for nesting, roosting, foraging, and dispersal, and likely experience greater survivorship under such conditions. However, dispersing or nonresident individuals may also make use of other forested areas that do not meet the requirements of nesting or roosting habitat on a short-term basis. Such short-term dispersal habitats must, at minimum, consist of stands with adequate tree size and canopy cover to provide protection from avian predators and at least minimal foraging opportunities.
Demographic data from studies initiated as early as 1985 have been analyzed every 5 years to estimate northern spotted owl demographic rates and population trends (Anderson and Burnham 1992, entire; Burnham
Estimates of realized population change (cumulative population change across all study years) indicated that, in the more rapidly declining populations (Cle Elum, Rainier, and Olympic Peninsula), the 2006 populations were 40 to 60 percent of the population sizes observed in 1994 or 1995 (Forsman
In addition to declines in population growth rates, declines in annual survival were reported for 10 of the 11 study areas (Forsman
As noted above, the barred owl has emerged as a greater threat to the northern spotted owl than was previously recognized. The range of the barred owl has expanded in recent years and now completely overlaps that of the northern spotted owl (Crozier
British Columbia has a small population of northern spotted owls. This population has declined at least 49 percent since 1992 (Courtney
Northern spotted owls are a long-lived species with relatively stable and high rates of adult survival, lower rates of juvenile survival, and highly variable reproduction. Franklin
Northern spotted owls are highly territorial (Courtney
Northern spotted owl diets vary across owl territories, years, seasons, and geographical regions (Forsman
Northern flying squirrels are positively associated with late-successional forests with high densities of large trees and snags (Holloway and Smith 2011, p. 671). Northern flying squirrels typically use cavities in large snags as den and natal sites, but may also use cavities in live trees, hollow branches of fallen trees, crevices in large stumps, stick nests of other species, and lichen and twig nests they construct (Carey 1995, p. 658), as well as mistletoe brooms when snags are not abundant (Lehmkuhl
For northern spotted owls in Oregon, both dusky-footed and bushy-tailed woodrats are important prey items (Forsman
Territorial northern spotted owls remain resident on their home range throughout the year; therefore, these homes ranges must provide all the habitat components needed for the survival and successful reproduction of a pair of owls. Northern spotted owls exhibit central-place foraging behavior (Rosenberg and McKelvey 1999, p. 1036), with much activity centered within a core area surrounding the nest tree during the breeding season. During fall and winter as well as in nonbreeding years, owls often roost and forage in areas of their home range more distant from the core. In nearly all studies of northern spotted owl habitat use, the amount of mature and old-growth forest was greater in core areas and home ranges than at random sites on the landscape (Courtney
The size, configuration, and characteristics of vegetation patches within home ranges affect northern spotted owl survival and reproduction, a concept referred to as habitat fitness potential (Franklin
The northern spotted owl inhabits most of the major types of coniferous forests across its geographical range, including Sitka spruce (
Recent habitat modeling efforts have also accounted for differences in habitat associations across regions, which have often been attributed to regional differences in forest environments and factors including available prey species (USFWS 2011, p. C-7). These recent advances allowed for modeling of northern spotted owl habitat by regions to account for: (1) The degree of similarity between nesting/roosting and foraging habitats based on prey availability; (2) latitudinal patterns of topology and climate; (3) regional patterns of topography, climate, and forest communities; and (4) geographical distribution of habitat elements that influence the range of conditions occupied by northern spotted owls (USFWS 2011, p. C-8). Detailed characterizations of each of these functional habitat types and their relative distribution are described in Physical or Biological Features, below.
There is growing evidence that recent climate change has impacted a wide range of ecological systems (Stenseth
Climate change will present unique challenges to the future of northern spotted owl populations and their habitats. Northern spotted owl distributions (Carroll 2010, entire) and population dynamics (Franklin
Because both northern spotted owl population dynamics and forest conditions are likely to be influenced by large-scale changes in climate in the future, we have attempted to account for these influences in our designation of critical habitat by recognizing that forest composition may change beyond the range of historical variation, and that climate changes may have unpredictable consequences for both Pacific Northwest forests and northern spotted owls. This critical habitat designation recognizes that forest management practices that promote ecosystem health under changing climate conditions will be important for northern spotted owl conservation.
The northern spotted owl was listed as a threatened species on June 26, 1990 (55 FR 26114); a description of the relevant previous Federal actions up to the time of listing can be found in that final rule. On January 15, 1992, we published a final rule designating 6,887,000 ac (2,787,000 ha) of Federal lands in Washington, Oregon, and California as critical habitat for the northern spotted owl (57 FR 1796). On January 13, 2003, we entered into a settlement agreement with the American Forest Resources Council, Western Council of Industrial Workers, Swanson Group Inc., and Rough & Ready Lumber Company, to conduct a 5-year status review of the northern spotted owl and consider potential revisions to its critical habitat (
In compliance with the settlement agreement in the
Both the 2008 critical habitat designation and the 2008 recovery plan were challenged in court in
On September 15, 2010, we published a
On October 12, 2010, the Court remanded the 2008 critical habitat designation, which had been based on the 2008 Recovery Plan for the Northern Spotted Owl, and adopted the Service's proposed schedule to issue a new proposed revised critical habitat rule for public comment by November 15, 2011, and a final rule by November 15, 2012. The Court subsequently extended the date for delivery of the proposed rule to the
In preparing this final revised critical habitat designation for the northern spotted owl, we reviewed and considered comments from the public, peer reviewers, and other interested parties on the proposed revised designation of critical habitat published on March 8, 2012 (77 FR 14062). We also reviewed and considered comments on the draft environmental assessment and draft economic analysis. As a result of these comments and a reevaluation of the revised proposed critical habitat boundaries, we have made changes in this final designation, as follows:
(1) We responded to peer-review, public, stakeholder, and internal comments on a wide variety of topics to clarify and strengthen the supporting rationale of this final designation, clarify our meanings and descriptions, and to refine specific aspects of the rule to include emerging research or provide additional explanation. Included in these types of changes from the proposed to final rule are the following:
• Clarifications to the language to specify that northern spotted owl occupancy data are not needed or appropriate for an analysis of the effects of an action on northern spotted owl critical habitat.
• Clarifications to the language to more clearly describe the potential management of hazard trees in critical habitat along roadways.
• In the Special Management Considerations section, we reference Recovery Action 10 from the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011), which focuses on retaining existing northern spotted owls on the landscape. We have edited those references to clarify that management of critical habitat and the section 7 evaluation under the Act that management should focus on the habitat's ability to support nesting northern spotted owls instead of focusing on individual northern spotted owls.
• To determine how to conduct those evaluations under section 7 of the Act, the proposed revised critical habitat recommended assessing the impacts of a timber management project in the context of 500 ac (200 ha) around where the impacts would occur. After numerous discussions with section 7 practitioners in different parts of the
• We have clarified that our discussion of ecological forestry and active management is intended for land managers to consider when developing management plans or planning projects, as in many areas this approach may be consistent with critical habitat for the northern spotted owl, but that such management is not mandated by the Service and is not required as the result of this rulemaking. We have also clarified this issue in the final rule language by stating that we have made the 16 U.S.C. 1532(5)(A)(i) determination that essential biological and physical features in occupied areas may require special management considerations or protection, but that the rule does not require land managers to implement, or preclude land managers from implementing, such measures.
• We have provided land managers with a discussion of relevant emerging science and greater detail regarding the appropriate application of active management and ecological forestry to benefit forest ecosystem restoration, as recommended in the Revised Recovery Plan for the Northern Spotted Owl. In addition, we received extensive comments regarding the appropriateness of developing diverse early-seral forest at the expense of older forest stands. We have clarified language regarding development of diverse, early-seral forest to indicate that: (1) We do not recommend these actions in older forest stands or areas that currently function as owl habitat; and (2) this type of management is most appropriate where more traditional forestry methods have typically been conducted on matrix lands. As stated in both the proposed rule and in this final rule, our first recommendation for northern spotted owl critical habitat is the conservation of old growth trees and forests on Federal lands wherever they are found, and to undertake appropriate restoration treatment in the threatened forest types.
• We have clarified the relationship between this revised designation of critical habitat for the northern spotted owl and the Northwest Forest Plan. Numerous commenters were concerned that this critical habitat would undermine the Standards and Guidelines of the Northwest Forest Plan, or enable timber harvest activities in Late-Successional Reserves that would not otherwise be permissible. We have added language to the preamble to clarify that the revised designation of critical habitat does not supersede the Standards and Guidelines of the Northwest Forest Plan. Our discussion of potential active management within critical habitat is intended to encourage land managers to consider the range of management flexibility already contained in the Northwest Forest Plan.
(2) In the proposed rule we requested specific information regarding the amount and distribution of northern spotted owl habitat that should be included in the designation. We refined the designation based on input from peer-review, public comment, and comments from Federal land management agencies, combined with further evaluation of modeled population response to the potential revisions of the critical habitat network, and including the following.
(A) Formal comments from the Forest Service requested that we consider large numbers of specific areas to be removed from, or added to, critical habitat, submitted to us in the form of GIS data. This proposal would have greatly reduced matrix lands in moist forest areas (Western Cascades, Oregon Coast Range, and North Coast Olympics) and eliminated Adaptive Management Areas and Experimental Forests from critical habitat. In addition, BLM requested removal of approximately 300,000 acres of selected BLM lands in western Oregon. We evaluated a new map of relative habitat suitability (Composite 8, as described in our Modeling Supplement, Dunk
(B) In response to peer review comments about connectivity and population issues we identified specific areas providing high-suitability habitat that were required to better achieve population objectives in specific lower-performing modeling regions. The additional areas consisted solely of Federal lands, primarily USFS LSR lands, that were essential to provide connectivity between populations in the Oregon Coast Ranges and adjacent regions with larger spotted owl populations, as pointed out in peer review and public comments, and supported by results of population modeling. In many cases, areas added were specifically identified by the USFS or BLM as lands that should be added to compensate for removal of other, lower value lands. To the degree possible, we attempted to situate additions within LSRs and balanced additions by removing lower-quality areas in matrix land allocations. In some cases, additions were made to balance areas removed in (A) above. No additional State or private lands were designated in this process, and all areas are within the critical habitat units as described in the proposed rule.
The changes described in (A) and (B) above had the desired effect of bringing population results back up to levels similar to proposed critical habitat, while simultaneously reducing the area of matrix and lower-quality habitat in the designation thus ensuring that only essential habitat is designated. Overall, about 318,296 acres of BLM and USFS lands were removed from critical habitat, 74 percent (236,887 acres) of which were matrix lands of relatively lower value to northern spotted owls.
(C) We identified and removed lands based on information we received during the public comment period indicating that they did not meet the definition of critical habitat. In general, lands removed had recently lost their ability to function as northern spotted owl habitat either through stand-replacing wildfire or through timber harvest conducted after 2006 (the date of our most recent comprehensive vegetation layer). When such lands were identified, we removed them from critical habitat because they were unlikely to support northern spotted owls, and did not contain the PCEs or could not be otherwise considered essential.
(D) We further refined the critical habitat boundaries to better conform to identifiable landscape features or administrative boundaries, and to improve consistency with our goal of prioritizing high value Federal lands to include in critical habitat while removing relatively lower value lands in all ownerships. The USFS provided a number of specific suggestions in their public comment for this type of refinement. Overall, these refinements resulted in a small net reduction of critical habitat area.
(E) Correcting ownership boundary errors identified in peer-review and public comment. When the underlying land ownership was corrected, we determined that some lands originally labeled as private lands were in fact Federal or State lands.
In the State of Washington, in response to public comment and upon
Also in the State of Washington, we corrected ownership of Washington Department of Fish and Wildlife (WDFW) lands. In the proposed rule, we identified 1,752 ac (709 ha) as under the ownership of WDFW. In this rule, we have corrected this acreage to 8,328 ac (3,370 ha). This correction reflects a land transfer between WDFW and the Washington Department of Natural Resources, as well as a mistaken usage of a mineral rights GIS layer instead of a landownership layer.
Additional changes that were made were minor and included corrections of mapping errors, removing lower value areas that were inadvertently included, or correctly identifying administrative boundaries. Changes in total area are detailed in Table 1, below, and are shown by land ownership.
(3) We have exempted 14,313 ac (5,782 ha) of Department of Defense lands at Joint Base Lewis-McChord in Washington from critical habitat for the northern spotted owl, in accordance with section 4(a)(3) of the Act (see Exemptions). These lands comprised subunit NCO-3 in the proposed revision of critical habitat, and represented the only entirely unoccupied unit of critical habitat proposed for the northern spotted owl.
(4) In the proposed revised rule (77 FR 14062; March 8, 2012), we identified numerous areas under consideration for exclusion from the final designation, and solicited public comment on whether the benefits of exclusion of these lands would outweigh the benefits of inclusion, for example, based on active conservation agreements or conservation plans. We did a thorough evaluation of all the areas identified in the proposed rule, as well as others identified through our review and through information received from the public, and found that the benefits of exclusion for many of these areas outweighed the benefits of inclusion in critical habitat and that excluding these areas will not lead to the extinction of the species. Therefore, the Secretary is exercising his discretion to exclude specific areas covered under conservation agreements, programs, and partnerships under section 4(b)(2) of the Act (see Exclusions section of this document). The total area excluded from the final critical habitat designation under section 4(b)(2) of the Act are given in Table 2, below, again shown by land ownership.
Note the difference in area between the proposed and final rules will not align exactly with the sum total of areas removed because they did not meet the definition of critical habitat and areas excluded or exempted from the final designation. Some minor discrepancies in area are due to mapping errors in the proposed designation have been corrected here, and may not be readily apparent through simple addition or subtraction of the total areas identified under various land categories. For example, the proposed rule mistakenly identified 16,031 ac (6,487 ha) of lands under the ownership of SDS and Broughton Lumber Companies in Washington as under consideration for exclusion. The accurate area included within the proposed critical habitat was, in fact, 2,035 ac (824 ha), and it is that area, which was excluded from this final designation, reflected in this final rule. The difference of nearly 14,000 ac (5,655 ha) will not be reflected in the difference between areas proposed and areas excluded in the final rule, as it was not really in the proposed critical habitat to begin with (and thus, was not excluded).
The number of subunits in the final critical habitat designation have changed as a result of exclusions under section 4(b)(2) or exemptions under section 4(a)(3). There were 11 critical habitat units and 63 subunits in the proposed rule. Eleven critical habitat units and 60 subunits comprise the final designation. In the North Coast Olympics, subunit NCO-3, composed entirely of Department of Defense lands at Joint-Base Lewis McChord, was exempted from the final designation under section 4(a)(3) of the Act (see Exemptions). In the Redwood Coast Region, subunits RDC-3 and RDC-4 were made up of private lands excluded under section 4(b)(2) of the Act (see Exclusions).
(5) Not all areas identified for potential exclusion in the proposed revised rule were excluded from the final designation. Based on the best available scientific information, we have found that the benefits of excluding other areas proposed or considered for exclusion do not outweigh the benefits of including them in the designation for the reasons discussed below. Therefore, the Secretary has determined not to exercise his discretion to exclude these lands. These areas are identified in Table 3 and are discussed further, below.
We retained a relatively limited area of State, County, and municipally owned or managed lands in California. Retained areas include lands managed as State Forests, County Parks, and a Municipal Water District. No habitat conservation plans (HCPs) or sage harbor agreements (SHAs) are currently in place on these lands. Most of these lands are in areas that have repeatedly been identified as critical to maintaining linkages among northern spotted owl populations in California. These State and County lands play an essential conservation role in this area of limited Federal ownership. Retaining these lands in the critical habitat designation promotes movement of northern spotted owls, and maintains the potential for genetic interchange. Including these lands would increase the awareness of State, County and local agencies about the status of and threats to spotted owls, the conservation actions needed for recovery, and the essential conservation role this habitat plays. It also increases the potential for educating visitors to State Forests and County Parks and Open Space areas about northern spotted owl conservation needs. Excluding these lands would have little impact on regulatory burdens because (a) current management of these lands is generally consistent with maintenance of habitat values, limiting the potential for adverse effects to critical habitat, and (b) management activities typically do not involve a Federal nexus. Therefore, the Secretary has chosen not to exclude the following California State, County, or municipal lands from the final designation of critical habitat for the northern spotted owl:
CALFIRE developed the Las Posadas DSF Management Plan (California Department of Forestry and Fire Protection, 1992) for the Las Posadas DSF and characterizes current management on the forest as “custodial.” Goals for fish and wildlife under the plan include maintenance of the “* * * Forest's status as one of the last relatively undisturbed fish and wildlife habitats in Napa County.” However, the management plan is quite dated, having been approved in 1992. There is acknowledgment of the presence of northern spotted owl activity sites in the management plan, but no specific provisions for owl management or conservation actions in the plan. There have been no publicly-available amendments or updates to the plan since its enactment in 1992 and the timeframe in which any revisions to the plan may take place is uncertain. The designation of critical habitat on these lands would perform an important educational function in highlighting their essential role in owl conservation as the State updates its plan and conducts management activities. Habitat within the plan area is not typical forested habitat often associated with the northern spotted owl but includes oak woodlands and grasslands in this southern part of the species range and represents a unique ecological setting for the species; the educational benefit of including this area in critical habitat is therefore high, as landowners may not be aware that the northern spotted owl inhabits this atypical habitat type. After reviewing the information available, we find that the benefits of including these areas as critical habitat will assist in maintaining linkages and movement among and between northern spotted owl populations, and heightening the awareness and educating visitors of the conservation role this habitat plays for recovery of the northern spotted owl. As a result we are not excluding the areas designated as critical habitat within the Las Posadas DSF.
CALFIRE has also developed a management plan for the Jackson DSF (Jackson Demonstration State Forest Management Plan (dated January 2008) and CALFIRE has requested that the area be excluded from the final designation. In their request for exclusion CALFIRE stated that the designation of the Jackson DSF as critical habitat was unnecessary given: (1) Extensive conservation planning and environmental assessment has already been completed for the area; (2) the designation would potentially have negative impacts on the mission of the Jackson DSF on implementing restoration and research projects; (3) that the draft economic analysis for the proposed critical habitat concluded that the designation would not affect timber harvest on State lands; and (4) designation does not provide meaningful wildlife benefits any different from those already in place.
The Service responds, as follows, to the four elements in CALFIRE'S request for exclusion. (1) While there are efforts by CALFIRE in the development of a forest management plan and environmental assessment for the Jackson DSF, the plan does not specifically provide for northern spotted owl conservation. We believe that the Jackson DSF Management Plan (CALFIRE, 2008) could provide potential benefits to the northern spotted owl, in that there is a high likelihood that land allocations stated in the plan, along with the long-term desired conditions for forest composition will improve habitat over time. However, we find that: (a) Existing management direction in the Plan relating to the northern spotted owl is vague; (b) the stated conservation policy for the owl is limited to a take-avoidance strategy; and (c) while CALFIRE collects monitoring data on northern spotted owl activity sites on a continuous basis, there is no apparent strategy for evaluating that information or applying it to the benefit of the species. The only overt policy statement in the 2008 Plan regarding the northern spotted owl states that “* * * forest management objectives * * * are to maintain or increase the number and productivity of nesting owl pairs through forest management practices that enhance nesting/roosting opportunities and availability of a suitable prey base.” The terms “maintain” and “increase” are not supported with measurable standards or targets; and there are no remedial measures or mechanisms in the 2008 Plan that are triggered by a decrease in activity sites or demographic productivity. The northern spotted owl conservation strategy in the 2008 Plan is predicated on take-avoidance (CALFIRE 2008, pp. 109 and 267). Take avoidance alone is not a sufficient conservation strategy and it will not necessarily satisfy CALFIRE's direction to maintain or increase owl activity sites or demographic performance. If there are local variations in the “true” optimal forest conditions that support owl occupancy, strict adherence to the take-avoidance provisions may not be satisfactory and occupancy rates may decrease, and there are no corrective mechanisms in the 2008 Plan to account for this possibility. This dual problem of the suitability and occupancy of activity sites is further complicated by barred owl intrusion, and likewise is not addressed by total reliance on a take-avoidance strategy. In addition, in the monitoring chapter for the 2008 Plan we find that there is continuous monitoring of northern spotted owl activity sites (CALFIRE 2008, p. 149), but it is not spelled out in detail. (For example, it does not include the detail and adaptability (i.e., adaptive management provisions) as are specified for instream conditions and fisheries (CALFIRE 2008, pp. 153-154). In addition, the 2008 Plan does not appear to contain guidance on how to process, evaluate, and interpret the continuous data that is currently being collected on northern spotted owl activity sites, or on how to apply that information to agency decision-making in the event that activity sites and demographic performance are not maintained or increased under the existing management direction. In summary, although the 2008 Jackson DSF Management Plan can potentially produce positive long-term outcomes for the northern spotted owl, it contains an incomplete conservation plan for the species.
(2) We do not agree with CALFIRE's contention that the designation would potentially have negative impacts on its ability to implement restoration and research projects. The fact that a Federal agency (i.e., U.S. Forest Service) is a research cooperator does not, by itself, create a section 7 nexus. The Service contacted the senior Forest Service scientist connected with the research program at Jackson DSF who described the Forest Service research activities as simply a scientific examination of the State's proposed actions. At this time, we see no Federal regulatory mechanism in connection with the Jackson DSF's existing cooperative research program that would trigger consultation under section 7 of the Act. Therefore, we believe any regulatory burden from designation would be minimal.
(3) The Service agrees with CALFIRE's observation, in their July 6, 2012 correspondence, that the economic analysis rightly concluded that critical habitat designation would have no effect on Jackson DSF harvest levels. The only potential effect on harvest schedules would occur if Federal permits or grants-of-funds were connected to the harvest activity.
(4) We disagree with CALFIRE's position that “designation would
While acknowledging that the 2008 Management Plan contains many features that have the potential to benefit the northern spotted owl over the long term, and also recognizing that there several remediable omissions in that Plan, the Secretary has elected not to exclude Jackson Demonstration State Forest from critical habitat designation under section 4(b)(2) of the Act because we believe that the educational and informational benefits of inclusion outweigh the benefits of exclusion.
A key management consideration for the MMWD is the practical need to limit sediment delivery thereby extending the service life of the five reservoirs within the Watershed (Kent, Alpine, Bon Tempe, Lagunitas, and Phoenix Lakes). To that end, the policy of the MMWD is to maintain land in a natural condition and limit human activities to those that have the least impact on the Watershed. Within specified constraints, permitted public activities include hiking, bicycling, horseback riding, fishing and picnicking. Camping, swimming and boating are prohibited. There is limited public motor vehicle access into the Watershed on Panoramic Highway, Ridgecrest Boulevard and the Fairfax-Bolinas Road. These roads mostly access scenic vistas and day use areas around the reservoirs. The remainder of the road network in the Watershed is dedicated for firefighter access and administrative use, and is closed to public motor vehicles. The MMWD has produced several current management plans addressing specific subject areas, including public access, vegetation management, road and trail management, and long term fire and fuels management. Several elements in those plans are compatible with long-term northern spotted owl conservation. However, there is no explicit discussion about long-term owl management in any of the MMWD's planning documents. The upcoming Vegetation Management Plan (projected in 2013) may provide additional information that is relevant to northern spotted owl habitat management. We are not aware of any substantial benefits to excluding these areas from critical habitat and find that there would be significant educational benefits to including them in the designation in that it would highlight the significance this area has for northern spotted owl conservation in future planning efforts.
Park management emphasizes non-motorized public use. Five of the six OSPs are served only by fire roads that are closed to public motor vehicle access. The exception is the Camino Alto OSP which is flanked on the east by a public street. Several land management elements in the park system strategic plan (Marin County Parks and Open Space Department, 2008) are compatible with northern spotted owl. However, there is no explicit discussion about long term owl management in this planning document. We are not aware of any substantial benefits to excluding these areas from critical habitat and find that there would be significant educational benefits to including them in the designation.
Hood Mountain Regional Park is minimally roaded; the Sonoma County General Plan of 2008 indicates a modest program of trail construction and management within the countywide regional parks system. Public information materials, along with maps showing the local road network, and the types and locations of facilities within Hood Mountain Regional Park, indicate that the SCRPD is emphasizing non-motorized recreation and protection of undeveloped land. Through public information sources in Sonoma County, we located a mission statement for the SCRPD but were unable to find any planning or guidance documents to indicate how the regional parks system would be managed over the long term. The absence of planning direction and the reasons for inclusion are similar to those for the Marin Municipal Water District and for the Marin County Parks and Open Space Department. We are not aware of any substantial benefits to excluding these areas from critical habitat and find that there would be significant educational benefits to including them in the designation.
In Oregon, we considered excluding 228,733 ac (92,565 ha) of State lands managed by the Oregon Department of Forestry (ODF). These lands contain both demographically productive sites for northern spotted owls and provide connectivity linkages among northern spotted owl populations in the Oregon Coast and North Coast-Olympic Modeling Regions. These lands are not currently managed under any sort of conservation plan or agreement with the Service, but are managed by ODF for multiple benefits including commodity production.
The State of Oregon has indicated that the designation of their lands as critical habitat would have “virtually no impact—positive or negative * * *” on either the management of their lands or their ability to pursue HCPs, SHAs or other conservation agreements (ODF
Inclusion of these lands in the critical habitat designation highlights their essential conservation role and provides opportunities for educating visitors to these areas, nearby landowners, and ODF about the potential conservation contribution of these lands to northern spotted owls. If ODF were to pursue some sort of conservation agreement, this critical habitat designation would provide a blueprint not only for the lands that would be essential to include in such an effort but also the types of management that would be appropriate there. If ODF does not pursue such an effort this designation clearly indicates the value of these lands for the conservation of the northern spotted owl. We believe the value of the information included in the designation would provide an opportunity for management direction that focuses on benefits to the species.
Because we are unaware of any negative impacts of including these ODF lands, the benefits of exclusion do not outweigh the benefits of inclusion for these lands, and the Secretary has chosen not to exercise his discretion to exclude these State of Oregon lands from the final designation.
In Washington we proposed or considered excluding 226,869 ac (91,811 ha) of State lands managed by the Washington Department of Natural Resources (225,013 ac; 91,059 ha), Washington State Parks (104 ac; 42 ha), and Washington Department of Fish and Wildlife (8,328 ac; 3,370 ha). We excluded the lands managed by the Washington Department of Natural Resources from the final designation based on their HCP, and excluded 104 ac (42 ha) of State Parks and Department of Fish and Wildlife Lands (see Exclusions). We retained 8,328 ac (3,370 ha) of State-owned lands managed by the State Department of Fish and Wildlife for wildlife habitat in the final designation. No conservation agreements are currently in place on these lands, but some could be covered by an HCP which is currently under development. Most of these lands are located in the central Cascades in an area that has repeatedly been identified as critical to maintaining linkages among spotted owl populations in Washington. These State lands play an essential conservation role in this area of limited or checkerboard Federal ownership. Retaining these lands in the critical habitat designation promotes movement of northern spotted owls between the northern and southern Cascades Range, as well as between the western and eastern slopes of the Cascades. Including these State lands would increase the awareness of State agencies about the essential conservation role these lands play and the conservation actions needed for recovery. Excluding these lands would impose little regulatory burden because (a) management of these lands is consistent with maintenance of habitat values, limiting the potential for adverse effects to critical habitat, and (b) management activities typically do not involve a Federal nexus. Therefore, the Secretary has chosen not to exercise his discretion to exclude lands managed by the Washington Department of Fish and Wildlife from the final designation of critical habitat for the northern spotted owl.
The areas identified in this final rule constitute a revision from the areas we designated as critical habitat for the northern spotted owl in 2008 (August 13, 2008; 73 FR 47326), which was a revision of the areas we initially designated as critical habitat for the northern spotted owl in 1992 (January 15, 1992; 57 FR 1796; see Changes from Previously Designated Critical Habitat, below). This final rule supersedes and replaces both of these earlier designations. The changes to the proposed revised critical habitat designation identified above result in a final designation of 9,577,969 ac (3,876,064 ha), a decrease of 4,197,484 ac (1,689,072 ha) from the 13,962,449 ac (5,649,660 ha) identified as meeting the definition of critical habitat in the March 8, 2012 (77 FR 14062) proposed rule (Table 4, below).
In 2008, we designated 5,312,300 ac (2,149,800 ha) of Federal lands in California, Oregon, and Washington as critical habitat for the northern spotted owl (73 FR 47326; August 13, 2008). In this revision, we are designating 9,577,969 ac (3,876,064 ha) as critical habitat for the northern spotted owl. We have revised the designation of critical habitat for the northern spotted owl to be consistent with the most current assessment of the conservation needs of the species, as described in the 2011 Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, Appendix B). In this final designation, 4,085,808
This revision of critical habitat represents an increase in the total land area identified from previous designations in 1992 and 2008. This increase in area is due, in part, to: (a) The unanticipated steep decline of the northern spotted owl and the impact of the barred owl, requiring larger areas of habitat to maintain sustainable spotted owl populations in the face of competition with the barred owl (e.g., Dugger
The new delineation of areas determined to provide the physical or biological features essential for the conservation of the northern spotted owl, or otherwise determined to be essential for the conservation of the species, was based, in part, on an improved understanding of the forest characteristics and spatial patterns that influence habitat usage by northern spotted owls which were incorporated into the latest population evaluation and mapping technology. The modeling process we used to evaluate alternative critical habitat scenarios differed fundamentally from the conservation planning approach used to inform the 1992 and 2008 designations of critical habitat for the northern spotted owl. These past designations relied on
The areas designated are lands that were occupied at the time of listing and that currently provide suitable nesting, roosting, foraging, or dispersal habitat for northern spotted owls, or that are otherwise essential to the conservation of the species. However, as noted above, not every site of known owl occupancy, either at present or at the time of listing, is included in the designation. We did not include owl sites if they were isolated from other known occurrences or in areas of marginal habitat quality such that they were unlikely to make a significant contribution to the conservation of the species, and therefore were not considered to provide the essential features.
The critical habitat network development and evaluation strategy we used attempted to maximize the efficiency of the network by prioritizing Federal lands. Utilization of new scientific information and advanced modeling techniques accounts for many of the changes in the revised critical habitat; in particular, the location of areas essential to northern spotted owls may have shifted from previous designations based on the best information available regarding the spatial distribution of high-value habitat. These advances include improvements in remotely-sensed vegetation data, use of models that better identify spatial configurations of habitat features important to owls, and assessment of relative population performance of northern spotted owls under different critical habitat designations. In addition, negative effects of barred owls on northern spotted owl populations were incorporated into the modeling process.
Late-successional reserves (LSRs) were not prioritized in this approach based solely on their status as a reserved land allocation, but were included in the 2012 designation only where the habitat quality was high enough to meet the selection criteria. In contrast, the 2008 critical habitat identified lands in part based on status as LSRs. However, LSRs were not originally designed under the NWFP solely to meet the needs of the northern spotted owl, but may include areas designated for other late-successional forest species. Therefore, not all LSRs contain habitat of sufficient quality to be included in the critical habitat network for the northern spotted owl. Connected to the decision to designate lands in part because of their status as LSRs, we did not include NWFP matrix on Forest Service lands in 2008. In this designation we have included NWFP matrix lands where they contain high quality habitat essential to the species' conservation. As described in the section Changes from the Proposed Rule, we tested a habitat network that did not include many of these high-value matrix lands; doing so led to a significant increase in the risk of extinction for the species, therefore these lands are retained in this final designation.
Table 5 shows a comparison of areas included in the 2008 designation and those included in this revision to critical habitat. The process we used to determine occupied areas containing essential features and unoccupied areas essential to the conservation of the species is described in Criteria Used to Identify Critical Habitat.
The reduction in the number of critical habitat units from 33 in 2008 to 11 in 2012 is a reflection, in part, of our decision to aggregate habitat by regions. The 2008 designation included 33 critical habitat units; the 2012 revision includes 11 critical habitat units with 60 subunits.
Our determination of PCEs in this revised designation incorporates new information resulting from research conducted since the last revision in 2008. This new information, along with relevant older studies, allowed us to include a higher level of specificity in the PCEs in this revision. This final rule also includes two changes in overall organization. The 2008 revised designation considered nesting and roosting habitat as separate PCEs. In this designation, we have combined these habitat types, because northern spotted owls generally use the same habitat for both nesting and roosting; they are not separate habitat types, and function differs only based on whether a nest structure is present. At the scale of a rangewide designation of critical habitat, nesting and roosting habitats cannot be systematically distinguished, and, therefore, we combined them in our analysis and resulting rulemaking. For project planning and management of northern spotted owls at the local scale, the distinction between nesting and roosting habitat remains useful, especially in portions of the subspecies' range where nesting structures are conspicuous (e.g., mistletoe brooms). The second organizational change was to subdivide the range of the northern spotted owl into four separate regions, and to describe PCEs for foraging habitat separately for each of these to provide more appropriate region-specific information.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features;
(a) Essential to the conservation of the species; and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features: (1) Which are essential to the conservation of the species, and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (PCEs—primary constituent elements such as roost sites, nesting grounds, rainfall, canopy cover, soil type) that are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area that was not occupied at the time of listing but is essential to the conservation of the species may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)).
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and northern spotted owls may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
For the northern spotted owl, the physical or biological features essential to the conservation of the species are forested areas that are used or likely to be used for nesting, roosting, foraging, or dispersing. The specific characteristics or components that comprise these features include, for example, specific ranges of forest stand density and tree size distribution; coarse woody debris; and specific resources, such as food (prey and suitable prey habitat), nest sites, cover, and other physiological requirements of northern spotted owls and considered essential for the conservation of the species. Below, we describe the life-history needs of the species and the broader physical or biological features essential to the conservation of the northern spotted owl, which informed our identification of the primary constituent elements (PCEs). The following information is based on studies of the habitat, ecology, and life history of the species, as described in the final listing rule for the northern spotted owl, published in the
Although the northern spotted owl is typically considered a habitat and prey specialist, it uses a relatively broad array of forest types for nesting, roosting, foraging, and dispersal. The diversity of forest types used is a reflection of the large geographical range of this subspecies, and the strong gradation in annual precipitation and temperature associated with both coastal mountain ranges and the Cascade Range. While the northern spotted owl is unquestionably associated with old-growth forests, habitat selection and population performance involves many additional features (Loehle
Climate, elevation, and topography are features of the physical environment that influence the capacity of a landscape to support habitat with high value for northern spotted owls and the type of habitat needed by the species. The distribution and amount of habitat on the landscape reflects interactions among these physical elements. Several studies have found that physical aspects of the environment, such as topographic position, aspect, and elevation, influence the northern spotted owl's selection of habitat (e.g., Clark 2007, pp. 97-111; Stalberg
Climate niche models for the northern spotted owl identified winter precipitation as the most important climate variable influencing ability to predict the distribution of northern spotted owl habitat (Carroll 2010, p. 1434). This finding is consistent with previous demographic studies that suggest there are negative effects of winter and spring precipitation on survival, recruitment, and dispersal (Franklin
Wet, cold weather during the winter or nesting season, particularly the early nesting season, has been shown to negatively affect northern spotted owl reproduction (Olson
Habitat quality may offset the negative effects of climate extremes. Franklin
Drought or hot temperatures during the previous summer have also been associated with reduced northern spotted owl recruitment and survival (Glenn
Mexican northern spotted owls (
Topography also influences the distribution of northern spotted owl habitat and patterns of habitat selection. The effects of topography are strongest in drier forests, where aspect and insolation (amount of solar radiation received in an area) contribute to moisture stress that can limit forest density and tree growth. In drier forests east of the Cascades and in the Klamath region, suitable habitat can be concentrated at intermediate topographic positions, on north-facing aspects, and in concave landforms that retain moisture. This leads to a distribution of suitable habitat characterized by ribbon-like bands and discrete patches. Ribbons occur along drainages and valley bottoms, along the north faces of ridges that trend from east to west, and at intermediate topographic positions between drier pine-dominated forests at lower elevations, and subalpine forest types at higher elevations. Discrete patches also occur on top of higher plateaus. Northern spotted owl populations inhabiting drier forests have higher fecundity and lower survival rates than owls in other regions (Hicks
Slope may also influence the distribution of suitable habitat. Intermediate slopes have been associated with northern spotted owl sites in some studies (e.g., Gremel 2005, p. 37; Gaines
In drier forests, low- and mixed-severity fires historically contributed to a high level of spatial and temporal variability in landscape patterns of disturbed and recovering vegetation. However, anthropogenic activities have so altered these historical patterns and composition of vegetation, fuels, and associated disturbance regimes, that contemporary landscapes no longer function as they did historically (Hessburg
Fire exclusion, combined with the removal of fire-tolerant structures (e.g., large, fire-tolerant tree species such as ponderosa pine, western larch (
Anthropogenic activities have also fundamentally changed the spatial distribution of fire-intolerant stands among the fire-tolerant stands, changing the pattern of fire activity across the landscape. Past management has altered the natural disturbance regime, homogenized the formerly patchy vegetative network, and reduced the complexity that was more prevalent during the presettlement era (Skinner 1995, pp. 224-226; Hessburg and Agee 2003, pp. 44-45; Hessburg
The intensity and spatial extent of natural disturbances that affect the amount, distribution, and quality of northern spotted owl habitat in dry forests are also influenced by local topographic features, elevation, and climate (Swanson
Landscapes supporting populations of northern spotted owls are the broadest scale we considered, encompassing areas sufficient to support numerous reproductive pairs (roughly 20,000 to 200,000 ac (8,100 to 81,000 ha). At the landscape scale, the northern spotted owl inhabits most of the major types of coniferous forests across its geographical range, including Sitka spruce, western hemlock, mixed conifer and mixed evergreen, grand fir, Pacific silver fir, Douglas-fir, redwood/Douglas-fir (in coastal California and southwestern Oregon), white fir, Shasta red fir, and the moist end of the ponderosa pine zone (Forsman
Landscape-level patterns in tree species composition and topography can influence the distribution and density of northern spotted owls. These differences in northern spotted owl distribution occur even when different forest types have similar structural attributes, suggesting that northern spotted owls may prefer specific plant associations or tree species. Some forest types, such as pine-dominated and subalpine forests, are infrequently used, regardless of their structural attributes. In areas east of the Cascade Crest, northern spotted owls select forests with high proportions of Douglas-fir trees. The effects of tree species composition on habitat selection also extend to hardwoods within conifer-dominated forests (e.g., Meyer
Northern spotted owls maintain large home ranges that vary in size across nearly an order of magnitude across the species' range, from about 1,400 to 14,000 ac (570 to 5,700 ha), depending on geographic latitude and prey resources (see
As described in the Background section above, several studies have examined patterns of northern spotted owl habitat selection at the territory scale and the consequences on fitness of habitat configuration within a territory. We do not know if the features that contribute to enhancing northern spotted owl occupancy and reproductive success at the territory scale can be scaled up to predict what landscape-scale patterns of habitat are most conducive to stable or increasing northern spotted owl populations. Studies that use populations as units of analysis in order to investigate the effects of the landscape-scale configuration of habitat on the performance of northern spotted owl populations have only begun recently. Past models of northern spotted owl population dynamics have included predictions about the effects of habitat configuration on population performance, but these predictions have not been tested or validated by empirical studies (Franklin and Gutiérrez 2002; p. 215). Recent demographic analyses suggested that recruitment was positively related to the proportion of study areas covered by suitable habitat (see Forsman
When the northern spotted owl was listed as threatened in 1990 (55 FR 26114; June 26, 1990), habitat loss and fragmentation of old-growth forest were identified as major factors contributing to declines in northern spotted owl populations. As older forests were reduced to smaller and more isolated patches, the ability of northern spotted owls to successfully disperse and establish territories was likely reduced (Lamberson
In addition to area size, spacing between reserves had a strong influence on successful dispersal (Lamberson
In contrast to earlier designations of critical habitat, we did not develop an
Meta-analysis of features associated with occupancy at the territory-scale indicated that northern spotted owls consistently occupy areas having larger patches of older forests that were more numerous and closer together than random sites (Franklin and Gutiérrez 2002; p. 212). In the Klamath and Redwood regions owls also consistently occupy sites with higher forest heterogeneity than random sites. Occupied sites in the Klamath region, in particular, show a high degree of vegetative heterogeneity, with more variable patch sizes and more perimeter edge than in other regions (Franklin and Gutiérrez 2002; p. 212). In the Klamath region, ecotones, or edges between older forests and other seral stages, may contribute to improved access to prey (Franklin and Gutiérrez 2002, p. 215). Several studies in the Klamath region and the Redwood region have found that variables describing the relationship between habitat core area and edge length improve the ability of models to predict northern spotted owl occupancy (e.g., Folliard
A home range provides the habitat components essential for the survival and successful reproduction of a resident breeding pair of northern spotted owls. The exact amount, quality, and configuration of these habitat types required for survival and successful reproduction varies according to local conditions and factors, such as the degree of habitat fragmentation, proportion of available nesting habitat, and primary prey species (Courtney
Core areas contain greater proportions of mature or old forest than random or nonuse areas (Courtney
During the transience (movement) phase, dispersers used mature and old-growth forest slightly more than its availability; during the colonization phase, mature and old-growth forest was
We currently do not have sufficient information to permit formal modeling of dispersal habitat and the influence of dispersal habitat condition on dispersal success (USFWS 2011, p. C-15). We expect, based on the studies discussed above, that dispersal success is highest when dispersers move through forests that have the characteristics of nesting-roosting and foraging habitats. Northern spotted owls can also disperse successfully through forests with less complex structure, but risk of starvation and predation likely increase with increasing divergence from the characteristics of suitable (nesting, roosting, foraging) habitat. The suitability of habitat to contribute to successful dispersal of northern spotted owls is likely related to the degree to which it ameliorates heat stress, provides abundant and accessible prey, limits predation risk, and resembles habitat in natal territories (Carey 1985, pp. 105-107; Buchanan 2004, pp. 1335-1341).
Dispersal habitat is habitat that both juvenile and adult northern spotted owls must use when looking to establish a new territory. Although optimal dispersal habitat would be the same as suitable nesting, roosting, or foraging habitat (mature and old-growth stands), dispersing owls will use younger forest for dispersal, and the Interagency Scientific Committee (Thomas
This zone includes five regions west of the Cascade crest in Washington and Oregon (Western Cascades North, Central and South; North Coast Ranges and Olympic Peninsula; and Oregon Coast Ranges; USFWS 2011, p. C-13). Climate in this zone is characterized by high rainfall and cool to moderate temperatures. Variation in elevation between valley bottoms and ridges is relatively low in the Coast Ranges, creating conditions favorable for development of contiguous forests. In contrast, the Olympic and Cascade ranges have greater topographic variation with many high-elevation areas supporting permanent snowfields and glaciers. Douglas-fir and western hemlock dominate forests used by northern spotted owls in this zone. Root diseases and wind-throw are important natural disturbance mechanisms that form gaps in forested areas. Flying squirrels are the dominant prey, with voles and mice also representing important items in the northern spotted owl's diet.
Our habitat modeling indicated that vegetation structure had a dominant influence on owl population performance, with habitat pattern and topography also contributing. High canopy cover, high density of large trees, high numbers of subcanopy vegetation layers, and low to moderate slope positions were all important features.
Nesting habitat in this zone is mostly limited to areas with large trees with defects such as mistletoe brooms, cavities, or broken tops. The subset of foraging habitat that is not nesting/roosting habitat generally had slightly lower values than nesting habitat for canopy cover, tree size and density, and canopy layering. Prey species (primarily northern flying squirrel) in this zone are associated with mature to late-successional forests, resulting in small differences between nesting, roosting, and foraging habitat.
This zone includes the Eastern Cascades North and Eastern Cascades South regions (USFWS 2011, p. C-13). This zone is characterized by a continental climate (cold, snowy winters and dry summers) and a high frequency of natural disturbances due to fires and outbreaks of forest insects and pathogens. Flying squirrels are the dominant prey species, but the diet of northern spotted owls in this zone also includes relatively large proportions of bushy-tailed woodrats, snowshoe hare, pika, and mice (Forsman
Our modeling indicates that habitat associations in this zone do not show a pattern of dominant influence by one or a few variables (USFWS 2011, Appendix C). Instead, habitat association models for this zone
Relative to other portions of the subspecies' range, nesting and roosting habitat in this zone includes relatively younger and smaller trees, likely reflecting the common usage of dwarf mistletoe brooms (dense growths) as nesting platforms (especially in the north). Forest composition that includes high proportions of Douglas-fir is also associated with this nesting structure. Additional foraging habitat in this zone generally resembles nesting and roosting habitat, with reduced canopy cover and tree size, and reduced canopy layering. High prey diversity suggests relatively diverse foraging habitats are used. Topographic position was an important variable, particularly in the north, possibly reflecting competition from barred owls (Singleton
This zone includes the Klamath West, Klamath East, and Interior California Coast regions (USFWS 2011, p. C-13). This region in southwestern Oregon and northwestern California is characterized by very high climatic and vegetative diversity resulting from steep gradients of elevation, dissected topography, and large differences in moisture from west to east. Summer temperatures are high, and northern spotted owls occur at elevations up to 5,800 ft (1,768 m). Western portions of this zone support a diverse mix of mesic forest communities interspersed with drier forest types. Forests of mixed conifers and evergreen hardwoods are typical of the zone. Eastern portions of this zone have a Mediterranean climate with increased occurrence of ponderosa pine. Douglas-fir dwarf mistletoe (
This zone is confined to the northern California coast, and is represented by the Redwood Coast region (USFWS 2011, p. C-13). It is characterized by a maritime climate with moderate temperatures and generally mesic conditions. Near the coast, frequent fog delivers consistent moisture during the summer. Terrain is typically low-lying (0 to 3,000 ft (0 to 900 m)). Forest communities are dominated by redwood, Douglas-fir-tanoak (
Habitat association models for this zone diverged strongly from models for other zones. Topographic variables (slope position and curvature) had a dominant influence with vegetation structure having a secondary role. Low position on slopes was strongly favored, along with concave landforms.
Several studies of northern spotted owl habitat relationships suggest that stump-sprouting and rapid growth of redwood trees, combined with high availability of woodrats in patchy, intensively managed forests, enables northern spotted owls to occupy a wide range of vegetation conditions within the redwood zone. Rapid growth rates enable young stands to develop structural characteristics typical of older stands in other regions. Thus, relatively small patches of large remnant trees can also provide nesting habitat structure in this zone.
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the northern spotted owl in areas occupied at the time of listing, focusing on the features' primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species. The physical or biological features essential to the conservation of the northern spotted owl are forested lands that can be used for nesting, roosting, foraging, or dispersing. We have further determined that these physical or biological features may require special management considerations or protection, as described in the section
Models developed for the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, Appendix C) to assess habitat suitability for the northern spotted owl across the range of the species and applied here to help identify potential critical habitat were based on habitat conditions within 500-acre (200-ha) core areas. Because core areas support a mix of nesting, roosting, and foraging habitats, their characteristics provide a basis for identification and quantification of PCEs.
Each of the essential features—in this case, forested lands that provide the functional categories of northern spotted owl habitat—comprises a complex interplay of structural elements, such as tree size and species, stand density, canopy diversity, and decadence.
Nesting and roosting habitat provides structural features for nesting, protection from adverse weather conditions, and cover to reduce predation risks for adults and young. Because nesting habitat provides resources critical for nest site selection and breeding, its characteristics tend to be conservative; stand structures at nest sites tend to vary little across the northern spotted owl's range. Nesting stands typically include a moderate to high canopy cover (60 to over 80 percent); a multilayered, multispecies canopy with large (greater than 30 in (76 cm) dbh) overstory trees; a high incidence of large trees with various deformities (e.g., large cavities, broken tops, mistletoe infections, and other evidence of decadence); large snags; large accumulations of fallen trees and other woody debris on the ground; and sufficient open space below the canopy for northern spotted owls to fly (Thomas
Recent studies have found that northern spotted owl nest stands tend to have greater tree basal area, number of canopy layers, density of broken-top trees, number or basal area of snags, and volume of logs (Courtney
Habitat modeling developed for the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, Appendix C) and used as one means of helping us identify potential critical habitat for the northern spotted owl supports previous descriptions of nesting habitat (57 FR 1796, January 15, 1992; 73 FR 47326, August 13, 2008), and suggests a high degree of similarity among the 11 ecological regions across the range of the species. Across regions, moderate to high suitability nesting habitat was characterized as having high canopy cover (65 to over 80 percent) and high basal area (240 ft
Habitats used for foraging by northern spotted owls vary widely across the northern spotted owl's range, in accordance with ecological conditions and disturbance regimes that influence vegetation structure and prey species distributions. In general, northern spotted owls select old forests for foraging in greater proportion than their availability at the landscape scale (Carey
In the West Cascades/Coast Ranges of Oregon and Washington, high-quality foraging habitat is also nesting/roosting habitat. Foraging activity is positively associated with tree height diversity (North
While the majority of studies reported strong associations with old-forest characteristics, younger forests with some structural characteristics (legacy features) of old forests (Carey
Foraging habitats used by northern spotted owls in the East Cascades of Oregon, Washington, and California were similar to those used in the Western Cascades, but can also encompass forest stands that exhibit
Because diets of northern spotted owls in the Klamath and Northern California Interior Coast Ranges consist predominantly of both northern flying squirrels and dusky-footed woodrats, habitats used for foraging northern spotted owls are much more variable than in northern portions of the species' range. As in other regions, foraging northern spotted owls select stands with mature and old-forest characteristics such as increasing mean stand diameter and densities of trees greater than 26 in (66 cm) dbh (Irwin
The preponderance of information regarding habitats used for foraging by northern spotted owls in the Redwood Coast zone comes from intensively managed industrial forests. In these environments, which comprise the majority of the redwood region, interspersion of foraging habitat and prey-producing habitat appears to be an important element of habitat suitability. Foraging habitat is used by owls to access prey and is characterized by a wide range of tree sizes and ages. Foraging activity by owls is positively associated with density of small to medium sized trees (10 to 22 in (25 to 56 cm)) and trees greater than 26 in (66 cm) in diameter (Irwin
Although the term “dispersal” frequently refers to post-fledgling movements of juveniles, for the purposes of this rule we are using the term to include all movement during both the transience and colonization phase, and to encompass important concepts of linkage and connectivity among owl subpopulations. Population growth can only occur if there is adequate habitat in an appropriate configuration to allow for the dispersal of owls across the landscape. Although habitat that allows for dispersal may currently be marginal or unsuitable for nesting, roosting, or foraging, it provides an important linkage function among blocks of nesting habitat both locally and over the owl's range that is essential to its conservation. However, as noted above, we expect dispersal success is highest when dispersers move through forests that have the characteristics of nesting-roosting and foraging habitats. Although northern spotted owls may be able to move through forests with less complex structure, survivorship is likely decreased. Dispersal habitat, at a minimum, consists of stands with adequate tree size and canopy cover to provide protection from avian predators and at least minimal foraging opportunities; there may be variations over the owl's range (e.g., drier site in the east Cascades or northern California). This may include younger and less diverse forest stands than foraging habitat, such as even-aged, pole-sized stands, but such stands should contain some roosting structures and foraging habitat to allow for temporary resting and feeding during the transience phase.
Habitat supporting nonbreeding northern spotted owls, or the colonization phase of dispersal, is generally equivalent to nesting, roosting, and foraging habitat and is described above, although it may be in smaller amounts than that needed to support nesting pairs.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to the northern spotted owl are as follows; note that PCE 1 must occur in concert with PCE 2, 3, or 4:
(1) Forest types that may be in early-, mid-, or late-seral stages and that support the northern spotted owl across its geographical range; these forest types are primarily:
(a) Sitka spruce,
(b) Western hemlock,
(c) Mixed conifer and mixed evergreen,
(d) Grand fir,
(e) Pacific silver fir,
(f) Douglas-fir,
(g) White fir,
(h) Shasta red fir,
(i) Redwood/Douglas-fir (in coastal California and southwestern Oregon), and
(j) The moist end of the ponderosa pine coniferous forests zones at elevations up to approximately 3,000 ft (900 m) near the northern edge of the range and up to approximately 6,000 ft (1,800 m) at the southern edge.
(2) Habitat that provides for nesting and roosting. In many cases the same habitat also provides for foraging (PCE (3)). Nesting and roosting habitat provides structural features for nesting, protection from adverse weather conditions, and cover to reduce predation risks for adults and young. This PCE is found throughout the geographical range of the northern spotted owl, because stand structures at nest sites tend to vary little across the northern spotted owl's range. These habitats must provide:
(a) Sufficient foraging habitat to meet the home range needs of territorial pairs
(b) Stands for nesting and roosting that are generally characterized by:
(i) Moderate to high canopy cover (60 to over 80 percent);
(ii) Multilayered, multispecies canopies with large (20-30 in (51-76 cm) or greater dbh) overstory trees;
(iii) High basal area (greater than 240 ft
(iv) High diversity of different diameters of trees;
(v) High incidence of large live trees with various deformities (e.g., large cavities, broken tops, mistletoe infections, and other evidence of decadence);
(vi) Large snags and large accumulations of fallen trees and other woody debris on the ground; and
(vii) Sufficient open space below the canopy for northern spotted owls to fly.
(3) Habitat that provides for foraging, which varies widely across the northern spotted owl's range, in accordance with ecological conditions and disturbance regimes that influence vegetation structure and prey species distributions. Across most of the owl's range, nesting and roosting habitat is also foraging habitat, but in some regions northern spotted owls may additionally use other habitat types for foraging as well. The foraging habitat PCEs for the four ecological zones within the geographical range of the northern spotted owl are generally the following:
(i) Stands of nesting and roosting habitat; additionally, owls may use younger forests with some structural characteristics (legacy features) of old forests, hardwood forest patches, and edges between old forest and hardwoods;
(ii) Moderate to high canopy cover (60 to over 80 percent);
(iii) A diversity of tree diameters and heights;
(iv) Increasing density of trees greater than or equal to 31 in (80 cm) dbh increases foraging habitat quality (especially above 12 trees per ac (30 trees per ha));
(v) Increasing density of trees 20 to 31 in (51 to 80 cm) dbh increases foraging habitat quality (especially above 24 trees per ac (60 trees per ha));
(vi) Increasing snag basal area, snag volume (the product of snag diameter, height, estimated top diameter, and including a taper function (North
(vii) Large accumulations of fallen trees and other woody debris on the ground; and
(viii) Sufficient open space below the canopy for northern spotted owls to fly.
(i) Stands of nesting and roosting habitat;
(ii) Stands composed of Douglas-fir and white fir/Douglas-fir mix;
(iii) Mean tree size greater than 16.5 in (42 cm) quadratic mean diameter;
(iv) Increasing density of large trees (greater than 26 in (66 cm)) and increasing basal area (the total area covered by trees measured at breast height) increases foraging habitat quality;
(v) Large accumulations of fallen trees and other woody debris on the ground; and
(vi) Sufficient open space below the canopy for northern spotted owls to fly.
(i) Stands of nesting and roosting habitat; in addition, other forest types with mature and old-forest characteristics;
(ii) Presence of the conifer species, incense-cedar, sugar pine, Douglas-fir, and hardwood species such as bigleaf maple, black oak, live oaks, and madrone, as well as shrubs;
(iii) Forest patches within riparian zones of low-order streams and edges between conifer and hardwood forest stands;
(iv) Brushy openings and dense young stands or low-density forest patches within a mosaic of mature and older forest habitat;
(v) High canopy cover (87 percent at frequently used sites);
(vi) Multiple canopy layers;
(vii) Mean stand diameter greater than 21 in (52.5 cm);
(viii) Increasing mean stand diameter and densities of trees greater than 26 in (66 cm) increases foraging habitat quality;
(ix) Large accumulations of fallen trees and other woody debris on the ground; and
(x) Sufficient open space below the canopy for northern spotted owls to fly.
(i) Nesting and roosting habitat; in addition, stands composed of hardwood tree species, particularly tanoak;
(ii) Early-seral habitats 6 to 20 years old with dense shrub and hardwood cover and abundant woody debris; these habitats produce prey, and must occur in conjunction with nesting, roosting, or foraging habitat;
(iii) Increasing density of small-to-medium sized trees (10 to 22 in (25 to 56 cm)) increases foraging habitat quality;
(iv) Trees greater than 26 in (66 cm) in diameter or greater than 41 years of age; and
(v) Sufficient open space below the canopy for northern spotted owls to fly.
(4) Habitat to support the transience and colonization phases of dispersal, which in all cases would optimally be composed of nesting, roosting, or foraging habitat (PCEs (2) or (3)), but which may also be composed of other forest types that occur between larger blocks of nesting, roosting, and foraging habitat. In cases where nesting, roosting, or foraging habitats are insufficient to provide for dispersing or nonbreeding owls, the specific dispersal habitat PCEs for the northern spotted owl may be provided by the following:
(a) Habitat supporting the transience phase of dispersal, which includes:
(i) Stands with adequate tree size and canopy cover to provide protection from avian predators and minimal foraging opportunities; in general this may include, but is not limited to, trees with at least 11 in (28 cm) dbh and a minimum 40 percent canopy cover; and
(ii) Younger and less diverse forest stands than foraging habitat, such as even-aged, pole-sized stands, if such stands contain some roosting structures and foraging habitat to allow for temporary resting and feeding during the transience phase.
(b) Habitat supporting the colonization phase of dispersal, which is generally equivalent to nesting, roosting, and foraging habitat as described in PCEs (2) and (3), but may be smaller in area than that needed to support nesting pairs.
This revised designation describes the physical or biological features and their primary constituent elements essential to support the life-history functions of the northern spotted owl. We have determined that all of the units and subunits designated in this rule were occupied by the northern spotted owl at the time of listing, and that (depending on the scale at which occupancy is considered) some smaller areas within the subunits may have been unoccupied at the time of listing. To address any uncertainty regarding occupancy, we have also evaluated all of the areas identified here as critical habitat under the standard of section 3(5)(a)(ii) of the Act, and determined that they are essential to the conservation of the species, as described in Criteria Used to Identify Critical Habitat, below. The criteria section also describes our evaluation of the configuration of the
In areas occupied at the time of listing, not all of the revised critical habitat will contain all of the PCEs, because not all life-history functions require all of the PCEs. Some subunits contain all PCEs and support multiple life processes, while some subunits may contain only those PCEs necessary to support the species' particular use of that habitat. However, all of the areas occupied at the time of listing and designated as critical habitat support at least the first PCE described (forest-type), in conjunction with at least one other PCE. Thus PCE (1) must always occur in concert with at least one additional PCE (PCE 2, 3, or 4).
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The term critical habitat is defined in section 3(5)(A) of the Act, in part, as the specific areas within the geographical areas occupied by the species, at the time it is listed, on which are found those physical or biological features essential to the conservation of the species and “which may require special management considerations or protection.” Accordingly, in identifying critical habitat in areas occupied at the time of listing, we determine whether the features essential to the conservation of the species on those areas may require any special management actions or protection. Here we present a discussion of the special management considerations or protections that may be required throughout the critical habitat for the northern spotted owl. In addition, for the benefit of land managers, we provide management suggestions consistent with the recommendations of the Revised Recovery Plan for consideration.
An effective critical habitat strategy needs to conserve extant, high-quality northern spotted owl habitat in order to reverse declining population trends and address the threat from barred owls. The northern spotted owl was initially listed as a threatened species due largely to both historical and ongoing habitat loss and degradation. The recovery of the northern spotted owl therefore requires both protection of habitat and management where necessary to provide sufficient high-quality habitat to allow for population growth and to provide a buffer against threats such as competition with the barred owl. Recovery Criterion 3 in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) is the “Continued Maintenance and Recruitment of Northern Spotted Owl Habitat,” which is further described as the achievement of a stable or increasing trend in northern spotted owl nesting, roosting, and foraging habitat throughout the range of the species. Meeting this recovery criterion will require special management considerations or protection of the physical or biological features essential to the conservation of the northern spotted owl in all of the critical habitat units and subunits, as described here. Special management includes both passive and active management.
The 2011 Revised Recovery Plan for the Northern Spotted Owl describes the three main threats to the northern spotted owl as competition from barred owls, past habitat loss, and current habitat loss (USFWS 2011, p. III-42). As the barred owl is present throughout the range of the northern spotted owl, special management considerations or protections may be required in all of the critical habitat units and subunits to ensure the northern spotted owl has sufficient habitat available to withstand competitive pressure from the barred owl (Dugger
Scientific peer reviewers of the 2011 Revised Recovery Plan for the Northern Spotted Owl (USFSW 2011, entire) and Forsman
While we recommend conservation of high-quality and occupied northern spotted owl habitat, long-term northern spotted owl recovery could benefit from forest management where the basic goals are to restore or maintain ecological processes and resilience, as discussed in detail in the Revised Recovery Plan (USFWS 2011, pp. III-11 to III-39). Special management considerations or protections may be required throughout the critical habitat to achieve these goals and benefit the conservation of the owl. The natural ecological processes and landscape that once provided large areas of relatively contiguous northern spotted owl habitat (especially on the west side of the Cascade Range) have been altered by a history of anthropogenic activities, such as timber harvest, road construction, development, agricultural conversion, and fire suppression. The resilience of these systems is now additionally challenged by the effects of climate change. As recommended in the Revised Recovery Plan for the Northern Spotted Owl, active forest management may be required throughout the range of the owl with the goal of maintaining or restoring forest ecosystem structure, composition, and processes so they are sustainable and resilient under current and future climate conditions, to provide for the long-term conservation of the species (USFWS 2011, p. III-13). For example, in some areas, past management practices have decreased age-class diversity and altered the structure of forest patches; in these areas, management, such as targeted vegetation treatments, could simultaneously reduce fuel loads and increase canopy and age-class diversity (Miller
In moist forests that are currently providing mature and late-successional
In dry forest regions, where natural disturbance regimes and vegetation structure, composition, and distribution have been substantially altered since Euro-American settlement, vegetation and fuels management (through influencing fire behavior, severity, and distribution) may be required to retain and recruit northern spotted owl habitat on the landscape (Buchanan 2009, pp. 114-115; Healey
If land managers are actively managing forests, we recommend that these activities be focused on lower quality owl habitat (lower relative habitat sustainability (RHS)); that these activities focus on ecological restoration, or apply principles of ecological forestry; and, where possible, evaluate the effects of these treatments on northern spotted owls and other species of concern using an active adaptive forest management framework.
We recognize that the only regulatory effect of the designation of critical habitat is that section 7(a)(2) of the Act applies, and that it does not require active management or mandate any specific type of management; it only requires that Federal agencies ensure that their actions are not likely to destroy or adversely modify critical habitat, as those terms are used in section 7. However, because the Act requires us to make a determination that the physical and biological features essential to conservation of the species may also need special management considerations or protection, we are taking this opportunity to describe, for consideration by land managers, specific management approaches and types of forest where land managers should consider applying them in order to maintain sufficient suitable habitat across the range of the owl. We have determined that the physical and biological features in habitat occupied by the species at the time it was listed, as represented by the primary constituent elements, may require special management considerations or protection as required by 16 U.S.C. 1532(5)(A). However, nothing in this rule requires land managers to implement, or precludes land managers from implementing, special management or protection measures.
Because these will vary geographically, here we provide a more detailed discussion of the types of management considerations or protections that may be required to preserve or enhance the essential physical or biological features for the northern spotted owl in the West Cascades/Coast Ranges of Oregon and Washington, East Cascades, Klamath and Northern California Interior Coast Ranges, and the Redwood Coast.
Special management considerations or protection may be required in areas of moist forests to conserve or protect older stands that contain the conditions to support northern spotted owl occupancy (RA10: USFWS 2011, p. 43) or contain high-value northern spotted owl habitat (RA32: USFWS 2011, p. 67). Silvicultural treatments are generally not needed to maintain existing old-growth forests and high-quality habitat on moist sites (Wimberly
In general, to advance long-term northern spotted owl recovery and ecosystem restoration in moist forests in the face of climate change and past management practices, special management considerations or protections may be required that follow these principles as recommended in the 2011 Revised Recovery Plan (USFWS 2011, p. III-18):
(1) Conserve older stands that contain the conditions to support northern spotted owl occupancy or high-value northern spotted owl habitat as described in Recovery Actions 10 and 32 (USFWS 2011, pp. III-43, III-67). On Federal lands this recommendation applies to all land-use allocations (see also Thomas
(2) Management emphasis needs to be placed on meeting northern spotted owl recovery goals and long-term ecosystem restoration and conservation. When there is a conflict between these goals, actions that would disturb or remove the essential physical or biological features of northern spotted owl critical habitat need to be minimized and reconciled with long-term ecosystem restoration goals.
(3) Continue to manage for large, continuous blocks of late-successional forest.
(4) In areas that are not currently late-seral forest or high-value habitat and where more traditional forest management might be conducted (e.g. matrix), these activities should consider applying ecological forestry prescriptions. Some examples that could be utilized include Franklin
These special management considerations or protections apply to Units 1, 2, 4, 5 and 6 of the revised critical habitat.
Special management considerations or protection may be required in the East Cascades to address the effects of past activities associated with Euro-American settlement, such as timber harvest, livestock grazing, fire suppression, and fire exclusion, that have substantially altered the inland northwest, modifying the patterns of vegetation and fuels, and subsequent disturbance regimes to the degree that contemporary landscapes no longer function as they did historically (Hessburg
(1) Conserve older stands that contain the conditions to support northern spotted owl occupancy or high-value northern spotted owl habitat as described in Recovery Actions 10 and 32 (USFWS 2011, pp. III-43, III-67). On Federal lands this recommendation applies to all land-use allocations (see also Thomas
(2) Emphasize vegetation management treatments outside of northern spotted owl territories or highly suitable habitat;
(3) Design and implement restoration treatments at the landscape level;
(4) Retain and restore key structural components, including large and old trees, large snags, and downed logs;
(5) Retain and restore heterogeneity within stands;
(6) Retain and restore heterogeneity among stands;
(7) Manage roads to address fire risk; and
(8) Consider vegetation management objectives when managing wildfires, where appropriate.
The above principles will result in treatments that have a variety of effects on northern spotted owl habitat in the short and long term. For example, some restoration treatments may have an immediate neutral or beneficial effect on existing northern spotted owl habitat (e.g., roads management, some prescribed fire prescriptions). Other treatments, however, may involve reductions in stand densities, canopy cover, or ladder fuels (understory vegetation that has the potential to carry up into a crown fire)—and thus affect the physical or biological features needed by the species. At the stand scale, this can result in a level of conflict between conserving existing northern spotted owl habitat and restoring dry-forest ecosystems. Resolution of such conflicts can be enhanced by considering the range of forest conditions that comprise suitable owl habitat and tailoring management accordingly.
Land managers should change from the practice of implementing many small, uncoordinated and independent fuel-reduction and restoration treatments. Instead, coordinated and strategic efforts that link individual projects to the larger objectives of restoring landscapes while conserving and recovering northern spotted owl habitat are needed (sensu Sisk
The special management considerations or protections identified here apply to Units 7 and 8 of the revised critical habitat.
The special management considerations or protections that may be required in the Klamath and Northern California Interior Coast Ranges represent a mix of the requirements needed to maintain or enhance the essential physical or biological features in mesic and dry forest types. This region in southwestern Oregon and northwestern California is characterized by very high climatic and vegetative diversity resulting from steep gradients of elevation, dissected topography, and large differences in moisture from west to east. Summer temperatures are high, and northern spotted owls occur at elevations up to 1,768 m (5,800 ft). Western portions of this zone support a diverse mix of mesic forest communities interspersed with drier forest types. Forests of mixed conifers and evergreen hardwoods are typical of the zone. Eastern portions of this zone have a Mediterranean climate with increased occurrence of ponderosa pine. Douglas-fir dwarf mistletoe is rarely used for nesting platforms in the west, but commonly used in the east. The prey base for northern spotted owls in this zone is correspondingly diverse, but is dominated by dusky-footed woodrats, bushy-tailed woodrats, and flying squirrels. Northern spotted owls have been well studied in the western portion of this zone (Forsman
High canopy cover, high levels of canopy layering, and the presence of very large dominant trees were all important features of nesting and roosting habitat. Compared to other zones, models of foraging habitat for this zone showed greater divergence from nesting habitat. Low to intermediate slope positions were strongly favored. In the eastern Klamath, presence of Douglas-fir was an important compositional variable. Habitat associations in the Klamath zone are diverse and unique, reflecting the climate, topography, and vegetation of this area. Nesting and roosting habitat somewhat resembles that of other zones, with a greater emphasis on topography that provides some relief from high temperatures while foraging habitat in this zone includes more open forests. Consequently, management actions consistent with maintaining and developing northern spotted owl habitat need to consider local conditions. In some areas, appropriate management will be more consistent with dry forest management strategies, while in other areas wet forest management strategies will be more appropriate.
This region contains habitat characteristics of both moist and dry forests interspersed across a highly diverse landscape (Halofsky
The special management considerations or protections identified here apply to Units 9, 10, and 11 of the revised critical habitat.
Special management considerations or protection may be needed in the Redwood Coast Zone to maintain or enhance the essential physical or biological features for the owl. Although the Redwood Coast zone of coastal northern California is considered part of the wet/moist forest region within the range of the northern spotted owl, there are distinct differences in northern spotted owl habitat use and diet within this zone. The long growing season in this region, combined with redwood's ability to resprout from stumps, allows redwood stands to attain suitable stand structure for nesting in a relatively short period of time (40-60 years) if legacy structures are present. Late-successional forest is an important component of nesting and roosting habitat in the Redwood Zone, and demographic productivity on northern spotted owl breeding sites has been positively correlated with the density of legacy trees in proximity to owl nest sites (Thome
The special management considerations or protections identified here apply to Unit 3 of the revised critical habitat.
We find that each of the areas occupied at the time of listing that we are designating as critical habitat contains features essential to the conservation of the species that may require special management considerations or protection to ensure the conservation of the northern spotted owl. These special management considerations or protection may be required to preserve and enhance the essential features needed to achieve the conservation of the northern spotted owl. Additional information on management activities compatible with northern spotted owl conservation can be found within the Section 7 Consultation section of this preamble.
As required by section 4(b)(1)(A) of the Act, we use the best scientific and commercial data available to designate critical habitat. We have reviewed the available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulations at 50 CFR 424.12(e), based on this review, we have identified the specific areas within the geographical area occupied by the species at the time it was listed on which are found those physical or biological features essential to the conservation of the species, and which may require special management considerations or protection. In addition, we considered whether any additional areas outside those occupied at the time of listing are essential for the conservation of the species.
For the purpose of developing and evaluating this revised critical habitat designation for the northern spotted owl, we identified “geographical area occupied by the species” at the time it was listed consistent with the species' distribution, population ecology, and use of space. We based our identification of occupied geographical areas on: (1) The distribution of verified northern spotted owl locations at the time of listing and (2) scientific information regarding northern spotted owl population structure and habitat associations.
We determined the geographical area occupied by the species at the time of listing based in part on a habitat suitability model incorporating the distribution of approximately 4,000 known northern spotted owl territories across the geographical range of the species (USFWS 2011, Appendix C). We used this model rather than just relying on surveyed sites at that time because large areas within the species' geographical range had not been surveyed; therefore the distribution of northern spotted owl populations was incompletely known at the time the species was listed, and remains so today. For this reason, designating critical habitat based solely on the locations of territories identified through surveys would exclude a substantial proportion of the area that would have been occupied by the species at the time of listing, and that provides the physical or biological features essential to the conservation of the species. To address this, we used our descriptions of the physical and biological features to develop a habitat suitability model that enabled us to map the distribution of relative habitat suitability and reliably identify areas that would have supported northern spotted owl territories at the time of listing, based on habitat value (USFWS 2011, Appendix C). Our habitat suitability model was based on GNN (Gradient Nearest Neighbor) vegetation data from 1996, and the locations of approximately 4,000 known owl pairs documented within 3 years of the date of the GNN vegetation data (USFWS 2011, p. C-20). Because our evaluations of model performance demonstrated that the models had good predictive ability (USFWS 2011, Appendix C, p. C-38-42) we used the relative habitat suitability models to predict the distribution of areas that would have supported occupancy by spotted owls at the time of listing.
Because the best available habitat and owl location data and information corresponded to 1996, we made an explicit assumption that the 1996-based habitat suitability model would reliably predict the distribution of spotted owls at the time of listing (1990). This assumption was based on: (1) Our
We tested this assumption by analyzing the relationship between our 1996 habitat suitability map and the distribution of 3,723 spotted owl sites known to be occupied at the time of listing (1987-1996). This time period reasonably represents the time of listing because northern spotted owls are relatively long-lived and exhibit a high degree of fidelity to territory core areas; their territory locations are, therefore, relatively stable through time, unless substantial changes occur to territory habitat. For this reason, we consider it highly likely that locations occupied between 1987 and 1990, and 1990 and 1996 were also occupied at the time of listing in 1990. We found that over 85 percent of the proposed critical habitat area was within the estimated home ranges of known spotted owl sites, strongly supporting our assumption that the model reliably predicted areas were occupied at the time of listing.
However, restricting a definition of occupancy to areas known to be used by resident territorial owls overlooks a large segment of the owl population that is not generally reflected in standard survey methodologies, as described below. Northern spotted owl populations consist of the territorial, resident owls, for which we have documentation of occupancy throughout much of the owl's range, described above, but also include nonterritorial adult “floaters” and dispersing subadult owls. Both dispersing subadults and nonterritorial floaters are consistently present on the landscape and require suitable habitat to support dispersal and survival until they recruit into the breeding population; this habitat requirement is in addition to that already utilized by resident territorial owls. Nonterritorial owls are difficult to detect in surveys because most surveys rely on territorial defense behavior of resident owls (responding to artificial owl calls) to determine their presence. Because they are difficult to detect, the number and distribution of nonterritorial and dispersing owls is poorly known for any given northern spotted owl population. However, they constitute essential elements of northern spotted owl populations, and can reliably be assumed to occur in suitable habitat within the same landscapes occupied by territorial owls. As stated, the great majority (85 percent) of the area within the identified critical habitat is covered by the home ranges of known owl territories at the time of listing. Because it is well established that dispersing subadults and non-territorial northern spotted owls regularly occupy high-quality habitat in the vicinity of other territorial northern spotted owls, and because our relative habitat suitability models exhibited high accuracy at predicting the probability of presence by owls, we conclude that these areas of high-quality habitat were occupied by the species at the time of listing.
Therefore, based on the best available scientific information regarding population structure of northern spotted owls, “occupied at the time of listing” encompasses (1) home ranges of resident, territorial northern spotted owls known from surveys to be present at the time of listing, (2) home ranges of territorial owls that would have been present at the time of listing based on a model developed specifically to predict owl presence based on relative habitat suitability, and (3) areas used by nonterritorial and dispersing owls that were likely to be present within the matrix of territories in a given landscape known to be occupied by resident owl pairs.
Having determined our working definition of the term “occupied,” in this instance, we then characterized “specific areas” as used in the definition of critical habitat in section 3(5)(A) of the Act, to conform with known patterns of space-use and distribution exhibited by northern spotted owls. Northern spotted owls are wide-ranging organisms that maintain large home ranges and disperse relatively long distances. Home ranges are used regularly by territorial owls for foraging, raising young, and other activities, and are actively defended by the resident pair year-round; as such, we consider these home ranges to be continually occupied by the species. Although much activity is centered on core areas within the home ranges, northern spotted owls are dependent upon the entirety of the home range for prey resources and use it on a regular basis throughout the year. As described earlier, territorial northern spotted owls cover home ranges from roughly 1,400 ac (570 ha) at the southern end of their range (Zabel
To conservatively evaluate the proportion of each subunit that was composed of areas known to be occupied by northern spotted owls at the time of listing, we calculated the area within estimated home ranges (USFWS 2011, p. C-63 Table C-24) for all verified northern spotted owl locations known at the time of listing, as described above. Overall, 85 percent of the area designated is within estimated home ranges of verified territorial northern spotted owls located through surveys at the time of listing; this area is entirely representative of verified owl locations, and does not include habitat occupied based on habitat suitability or nonresident owls. Twenty-two (37 percent) of the 60 subunits have at least 90 percent of their area within verified known home ranges; 41 (68 percent) have at least 70 percent. As explained above, given that these areas represent occupancy by verified resident owls only, and considering the suitable habitat available at the time of listing in these same landscapes, we conclude that the remainder of these areas was occupied by other resident owls that simply were not within surveyed areas, nonterritorial adult owls (floaters), or dispersing subadults.
To help us identify and map potential critical habitat for the owl, we used a three-step modeling framework developed as part of the Revised Recovery Plan that integrates a northern spotted owl habitat model, a habitat conservation planning model, and a population simulation model. The details of this modeling framework are presented in Appendix C of the Revised Recovery Plan (USFWS 2011), and a detailed technical description of the modeling and habitat network evaluation process we used in this revised designation of critical habitat is provided in Dunk
The overall approach for critical habitat modeling consisted of three main steps (USFWS 2011, Appendix C, p. C-3) to help refine, select, and evaluate a series of alternative critical habitat networks for the northern spotted owl. Each of these steps helped us to identify a critical habitat network that meets the statutory definition of critical habitat, namely, the distribution of the physical or biological features needed by the species across its geographical range occupied at the time of listing, and the identification of a landscape configuration where these features, as well as any necessary unoccupied areas, are essential to the conservation of the species. These steps are summarized here, and then each is described in further detail.
Step 1: At the outset, the attributes of forest composition and structure and characteristics of the physical environment associated with nesting, roosting, and foraging habitat—physical or biological features used by the species—were identified based on published research, input from individual experts, and analysis of northern spotted owl location and habitat data from nearly 4,000 known owl pairs (USFWS 2011, pp. C-20 to C-28). We then used these physical or biological features of nesting, roosting, and foraging habitats to create a rangewide map of relative habitat suitability using the model MaxEnt (Phillips
Step 2: We developed northern spotted owl habitat networks based on the relative habitat suitability map using the Zonation conservation planning model (Moilanen and Kujala 2008, entire). The Zonation model used a hierarchical prioritization of the landscape based on relative habitat suitability and other user-specified criteria (e.g., land ownership) to develop the most efficient solutions for incorporating high-value habitat. Zonation analyses were conducted separately for each region to ensure that reserves would be well-distributed across the range of the owl. Zonation also allowed for consideration of land ownership in development of reserve designs.
Step 3: In the last step, we determined where the physical or biological features, as well as unoccupied areas, are essential to the conservation of the species. To do this we used a spatially explicit northern spotted owl population model (HexSim) (Schumaker 2008, entire) to predict relative responses of northern spotted owl populations to different habitat network designs, and evaluated these responses against the recovery objectives and criteria for the northern spotted owl using a rule set based on those criteria. Simulations from these models are not meant to be estimates of what will occur in the future, but rather provide information on trends predicted to occur under different network designs; this allowed us to compare the relative performance of various critical habitat scenarios.
In Step 1 of the modeling framework, we used published research, input from individual experts, and analysis of northern spotted owl location and habitat data to develop models of relative habitat suitability for northern spotted owls. These relative habitat suitability models identify areas with habitat that provides the combination of variables (forest composition and structure, and abiotic factors such as elevation, precipitation, and temperature) with a high predictive probability of supporting northern spotted owls, based on data gathered from known owl sites. Based on the physical or biological features of nesting, roosting, and foraging habitats known to be utilized by resident owls, we used these models to identify areas containing those physical or biological features required by the owl, and to map their distribution across the range of the owl (USFWS 2011, pp. C-27 to C-42, C-62). Because the models are based in large part on data from nearly 4,000 owl sites (USFWS 2011, p. C-62), model outputs highlight surveyed and verified owl home ranges. However, they also identify areas with habitat that supported territorial and non-territorial owls at the time of listing, based on habitat suitability, and areas that may have been unoccupied at the time of listing, but that may be essential for the conservation of the species based on their relative habitat suitability as well as the habitat characteristics needed for population growth or dispersal (see below). To ensure that the variety of physical or biological features used by northern spotted owls across their range is represented in the models, we applied separate habitat models for each of 11 ecological regions, based on differences in forest environments, northern spotted owl habitat use and prey distribution, and variation in ecological conditions (USFWS 2011, C-7 to C-13).
In Step 2 of the modeling framework, we used a habitat conservation planning model (Zonation) (Moilanen
In Step 3 of the modeling framework, we developed a northern spotted owl population simulation model that allowed us to simulate the relative population responses of northern spotted owls to various habitat conservation network scenarios (HexSim) (Schumaker 2011, entire). In developing this rule, we used this northern spotted owl population simulation model to compare alternative critical habitat networks and evaluate each design's ability to meet the recovery goals and criteria for the northern spotted owl (described further below, and in detail in Dunk
We determined what is essential to recovery of the northern spotted owl by evaluating the performance of each potential critical habitat scenario considered against the recovery needs of the owl. In contrast with earlier conservation modeling efforts for the northern spotted owl, the modeling framework we utilized does not rely on
To accomplish this, we developed a rule set for the identification of critical habitat based on the ability of that habitat to meet the recovery objectives and criteria set forth in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, p. ix). The recovery objectives for the northern spotted owl are:
(1) Northern spotted owl populations are sufficiently large and distributed such that the species no longer requires listing under the Act;
(2) Adequate habitat is available for northern spotted owls and will continue to exist to allow the species to persist without the protection of the Act; and
(3) The effects of threats have been reduced or eliminated such that northern spotted owl populations are stable or increasing and northern spotted owls are unlikely to become threatened again in the foreseeable future.
Recovery Criterion 1—Stable Population Trend: The overall population trend of northern spotted owls throughout the range is stable or increasing over 10 years, as measured by a statistically reliable monitoring effort.
Recovery Criterion 2—Adequate Population Distribution: Northern spotted owl subpopulations within each province (i.e., recovery unit), excluding the Willamette Valley Province, achieve viability, as informed by the HexSim population model or some other appropriate quantitative measure.
Recovery Criterion 3—Continued Maintenance and Recruitment of Northern Spotted Owl Habitat: The future range-wide trend in northern spotted owl nesting/roosting and foraging habitat is stable or increasing throughout the range, from the date of Revised Recovery Plan approval, as measured by effectiveness monitoring efforts or other reliable habitat monitoring programs.
We used the following rule set to compare and evaluate the potential of various habitat scenarios to meet these recovery objectives and criteria, and thus determine what is essential to the conservation of the northern spotted owl:
(1) Ensure sufficient habitat to support population viability across the range of the species.
(a) Habitat can support an increasing or stable population trend, as measured by a population growth rate of 1.0 or greater.
(b) Habitat will be sufficient to insure a low risk of extinction.
(2) Support demographically stable populations in each recovery unit.
(a) Habitat can support an increasing or stable population trend in each recovery unit.
(b) Habitat will be sufficient to insure a low risk of extinction in each recovery unit.
(c) Conserve or enhance connectivity within and among recovery units.
(d) Conserve genetic diversity.
(e) Ensure sufficient spatial redundancy in critical habitat within each recovery unit.
(i) Accommodate habitat disturbance due to fire, insects, disease, and catastrophic events.
(3) Ensure distribution of northern spotted owl populations across representative habitats.
(a) Maintain distribution across the full ecological gradient of the historical range.
(4) Acknowledge uncertainty associated with both future habitat conditions and northern spotted owl population performance—including influence of barred owls, climate change, fire/disturbance risk, and demographic stochasticity—in assessment of critical habitat design.
These critical habitat objectives of supporting population viability and demographically stable populations are intended to be met in concert with the implementation of recovery actions to address other nonhabitat-based threats to the owl.
We applied this rule set to the outcome of HexSim modeling simulations on the various habitat scenarios considered (see Appendix C of the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) and Dunk
• The percentage of simulations during which the rangewide population fell below 1,250 individuals.
• The percentage of simulations during which the rangewide population fell below 1,000 individuals.
• The percentage of simulations during which the rangewide population fell below 750 individuals.
• The percentage of simulations during which the population fell below 250 in each region (using 250 as a quasi-extinction threshold).
• The percentage of simulations during which the population fell below 100 in each region (using 100 as a quasi-extinction threshold).
• The percentage of simulations that went to extinction (population = 0) in each region.
• The mean population size from time step 150 to time step 350 in each region.
• The mean population size at the last time step in each region.
• The mean population size at the last time step rangewide.
Measures of extinction risk are used as an indirect measure of sufficient population abundance, as well as viability.
These metrics were used to comparatively evaluate the ability of
We also focused on public lands to the maximum extent possible (see Dunk
To determine which of the numerous potential arrays of habitat we considered contained only those areas that are essential to the conservation of the northern spotted owl, we evaluated each of them according to the rule set and criteria detailed above. Briefly summarizing, all of the habitat networks we assessed contained varying amounts of the physical or biological features needed by the northern spotted owl in varying amounts and spatial arrangements across the range of the species. Our first consideration in determining which of these scenarios contained the physical or biological features in the quantity and configuration essential to the conservation of the species (i.e., the physical and biological features essential to the conservation of the species) was our evaluation of how well the network performed in terms of contributing toward the recovery criteria for the northern spotted owl; we used the recovery criteria as our standard for the conservation of the species.
To ensure that we designated only what is essential to the species' conservation, our secondary consideration was efficiency. For our purposes, we evaluated efficiency both in terms of number of acres and landownership. Some of the networks we evaluated were smaller than this final designation, or did not include any State or private lands; however, such networks failed to meet the recovery criteria required to achieve the conservation of the species, and therefore could not be considered to provide the quantity and configuration of the physical or biological features essential to the conservation of the species. Other potential designations were significantly larger than this final designation and while they were also capable of meeting the recovery criteria, they did not provide proportionately greater conservation value relative to the additional area (as measured, for example, in relative projected numbers of owls). We concluded that such networks therefore included large areas of habitat that may contribute to recovery, but that are not necessary to achieve the recovery criteria for the northern spotted owl, therefore these superfluous areas could not be considered essential to the conservation of the species.
Finally, our assessment of potential habitat networks, based not only on the population models but additionally refined by expert opinion, as described below, indicated that critical habitat limited to areas presently occupied by the northern spotted owl would not be sufficient to achieve the recovery criteria for the species, as such a designation would lead to inadequate population distribution and inadequate population connectivity (50 CFR 424.12(e)). Modeling led us to a similar conclusion regarding areas that were occupied at the time of listing; networks limited to such areas were not capable of meeting the recovery criteria for the species, and the models assisted us in identifying those additional specific areas of habitat unoccupied at the time of listing that are essential in terms of achieving the conservation of the species. Another element of an essential network was therefore the identification of sufficient areas of suitable habitat or potentially suitable habitat not presently occupied by the northern spotted owl, or that was not occupied at the time of listing, to achieve the conservation of the species, in conjunction with occupied habitat.
Our final designation is the critical habitat network that includes the quantity and spatial configuration of habitat that meets the requirement that it contain occupied areas with the essential physical and biological features or unoccupied areas that are themselves essential for conservation of the species by achieving the recovery criteria for the northern spotted owl while avoiding the designation of areas of habitat that do not make an essential contribution to the conservation of the species. This essential habitat network is composed predominantly of areas occupied at the time of listing and that contain the essential physical or biological features, in conjunction with some areas that may have been unoccupied at the time of listing, to collectively comprise the habitat configuration and quantity that most efficiently meets the recovery criteria for the species. All areas in this final critical habitat designation, whether considered occupied at the time of listing or unoccupied at the time of listing, are therefore considered essential to the conservation of the species. The specific modeling outcomes and our evaluation of each potential critical habitat network are presented in detail in Dunk
It is important to recognize that although the application of this modeling framework provided the foundation for identifying those areas that meet the definition of critical habitat for the northern spotted owl, the models do not simply produce a map of critical habitat. Working from the model results, we then further refined the model-based map units, after considering land ownership patterns, interagency coordination, and best professional judgment, with the objective of increasing the efficiency and effectiveness of the critical habitat designation, as well as making corrections based on ground truthing and local knowledge. The process generally consisted of modifying boundaries to better conform to existing administrative and landscape features, removing small areas of relatively lower-suitability habitat, and incorporating additional areas that may have been unoccupied at the time of listing, but were determined to be essential for population connectivity,
The decision of where the requisite physical and biological features and unoccupied areas are essential to the northern spotted owl was made by identifying those areas in the range of the owl that are necessary to achieving a relatively high likelihood of meeting the recovery objectives described in the Revised Recovery Plan (USFWS 2011, p. ix), while at the same time minimizing the inclusion of areas that are relatively less important or not necessary to spotted owl recovery. Striking this balance required by the Act—designating only those areas that contain the essential features or are themselves essential for conservation of the species and not unnecessarily designating the entire geographical area that is or can be occupied by the species—was accomplished using the best available information: a combination of scientific modeling, expert scientific opinion of agency biologists and peer reviewers, and careful consideration of public comment.
We made sure that this final critical habitat designation includes only what is essential to the species' conservation by evaluating a variety of potential critical habitat networks and assessing their relative probability of meeting recovery objectives and, secondarily, their relative “efficiency” in meeting these objectives. The various scenarios were designed to bracket a variety of conditions and included different aggregations of total habitat area, landscape juxtaposition, and forest conditions. Some were smaller or larger in total size than this final designation, and some did or did not include Federal matrix lands, State lands, or private lands. The process of comparing alternative networks and population results is described in detail in the Modeling Supplement (Dunk
(1) It ensures that northern spotted owl populations are sufficiently large to exhibit low extinction risk at the rangewide scale. Under the final designation, modeled rangewide populations have less than a 10 percent probability of declining to fewer than 1,000 females, and a 3 percent probability of declining to fewer than 750 females. Modeled population size and extinction risk results for the designation are within the top 10 percent of all alternative networks, yet the designation is much smaller than other top-ranking alternatives.
(2) It ensures that northern spotted owl populations are well-distributed across the geographic range of the species by selecting a habitat network that supports population sizes with low extinction risk within each of 11 modeling regions. Modeling region-specific population sizes in the final designation are in the top 10 percent of all alternative networks.
(3) It ensures that adequate amounts of current and future habitat is available for spotted owls to persist and recover by designating a habitat network consisting of approximately 50 percent of the available high-suitability spotted owl habitat rangewide. An additional 21 percent of high-quality habitat is encompassed within Congressionally Reserved lands that are not designated, but will retain their value for spotted owls. This high-quality habitat, in addition to areas required for population connectivity, is necessary to support rangewide populations with low extinction risk at both rangewide and regional scales.
(4) Compared to previous spotted owl conservation strategies, it provides increased redundancy in habitat to help buffer potential adverse impacts due to climate change and other stochastic (i.e., unpredictable) events by enlarging the total area of the final designation within the fire-prone portions of the northern spotted owl's range. This means that the final designation supports larger populations in some modeling regions than would be minimally required to achieve low extinction risk. Although it is impossible to predict with precision how much redundancy may be required to deal with future changes in forest conditions, this is essential to ameliorating the potential impacts of fire, insects, and forest disease on spotted owls.
(5) The balancing of population objectives and parsimony resulted in a final designation that encompasses 50 percent of the total available high-suitability habitat rangewide and less than nine percent of low-quality habitat, and supported population size and extinction risk within the top 10 percent of all alternatives. Other larger alternatives had similar or slightly better population characteristics, but contained much larger proportions of lower-suitability habitat. The small amount of low-quality habitat contained in the final designation is essential because it provides for population growth and connectivity both within regional populations and between populations; however, we determined that additional lower-suitability habitat was not necessary to the conservation of the species.
We considered but rejected potential critical habitat networks that provided less total area, that did not include Federal matrix lands, or that did not include some State or private lands where Federal lands were lacking, because these networks had a significantly lower likelihood of meeting recovery objectives as measured by demographic modeling results and expert scientific opinion. For example, modeled rangewide population sizes in this final designation were 1.7 times larger than under the proposed rule's Possible Outcome 4, which did not include any State or private lands, and nearly twice the size of populations under 2008 critical habitat. This larger population size is essential because it results in low extinction risk. Likewise, we considered but rejected several potential networks that included significantly more total area than the final designation. These potential networks had a high probability of meeting recovery objectives as measured by model results and expert opinion, but they did not confer much of a net increase in the likelihood of meeting recovery objectives beyond what is provided by the final designation. This lack of parsimony, combined with a lack of a proportional increase in measurable demographic performance, justified the rejection of these larger potential networks when compared to the final designation.
This methodological approach was generally supported by the scientific peer reviewers. One peer reviewer felt the proposed critical habitat identified too much total area, and another peer reviewer felt that more land area should be included, but most peer reviewers felt the total area and the juxtaposition of land areas seemed reasonable and scientifically justified given the current status of the owl and the recovery objectives. Most of these experts also concluded that the use of the modeling process was justified for informing the final decision.
In sum, we believe this final designation of critical habitat for the northern spotted owl meets the intent of the Act by identifying those areas containing essential features or are otherwise essential in a way that has a very high probability of providing for the conservation of the species, while minimizing the potential for unnecessarily including areas of low conservation value to the species.
Based on the northern spotted owl's wide-ranging use of the landscape, and the distribution of known owl sites at the time of listing across the units and subunits designated as critical habitat in this rule, we find that all units and all subunits meet the Act's definition of being within the geographical area occupied by the species at the time of listing.
As noted above in
Thus, even if not occupied at the time of listing, all units and subunits designated as critical habitat are essential for the conservation of the species because, in addition to nesting, roosting, foraging, and dispersal habitat, they provide connectivity between occupied areas, room for population growth, and the ability to provide sufficient suitable habitat on the landscape for owls in the face of natural disturbance regimes (e.g., fire).
In general, northern spotted owls require large areas of habitat due to their expansive home range requirements and the need for connectivity between subpopulations to maintain genetic diversity and support stable, viable populations over the long term. The northern spotted owl was initially listed in large part due to past habitat loss and degradation. In addition, recent work has confirmed that northern spotted owls require additional areas of habitat to persist in the face of competition with barred owls (Dugger
In addition, because past habitat loss and degradation was identified as a major threat to the northern spotted owl at the time of listing and because this threat currently continues, conservation and recovery of the species is dependent in part on development of additional habitat to allow for population growth and recovery. Therefore, portions of the habitat mosaic in some subunits designated as critical habitat within the geographical area occupied by the species at the time of listing consist of younger or partially harvested forest. These are essential for the conservation of the species because they are capable of developing the PCEs that support nesting, roosting, or foraging by northern spotted owls that will be necessary for population growth. Typically the result of past timber harvest or wildfire, these areas of younger forest contain the elements conducive to fully developing the physical or biological features essential to the conservation of the owl (they are of suitable elevation, climate, and forest community type). They may, however, be lacking some element of the physical or biological features, such as large trees or dense canopies that are associated with nesting habitat. In particular, of 60 subunits designated, 4 (NCO-4, NCO-5, and ORC-1) contain proportionally greater areas of younger forests that are essential for the conservation of the species, because they can develop additional habitat necessary to support viable northern spotted owl populations in the future. These subunits are located within Southwestern Washington and Oregon Coast Ranges Areas of Special Concern (Thomas
Finally, there are portions of two subunits that function primarily for connectivity between populations. Although portions of these subunits may not have been occupied at the time of listing, these areas contain the dispersal and foraging habitat to support movement between adjacent subunits and are therefore essential to provide population connectivity. Many of these areas are also anticipated to develop into habitat capable of supporting nesting pairs in the future. In 1990, the Interagency Scientific Committee (ISC) (Thomas
Our evaluation of the various habitat scenarios considered in the modeling process described above enabled us to determine the amount and configuration of habitat essential for the conservation of the owl, based on the relative ability of that habitat network to meet the recovery criteria of stable or increasing populations and adequate distribution of viable populations. Although this evaluation was primarily based on areas we know to have been occupied at the time of listing, our evaluation of the distribution and configuration of the physical and biological features essential to the conservation of the owl additionally identified areas that may not have been occupied at the time of listing, if those areas were essential to meeting the recovery goals for the species. We have determined these areas to be essential for the conservation of the species, to provide for dispersal and connectivity between currently occupied areas, allow space for population growth, and provide habitat replacement in the event of disturbances, such as wildfires and competition with barred owls. Our evaluation of alternative habitat networks, described above, indicates that the specific areas identified in this designation are necessary to achieve the amount and configuration of habitat that meets the recovery criteria for the species. Because these areas do so efficiently (without designating more areas than are needed, or designating areas that would not make a significant contribution to conservation value), we have determined that these areas are essential for the conservation of the species. As described above, we have determined that a critical habitat designation that does not include these areas, even if they may not be occupied, would be inadequate to ensure the conservation of the species. The resulting revised critical habitat represents the amount and spatial distribution of habitats that we have determined to be essential for the conservation of the northern spotted owl.
This designation is an improvement over the previous designation in that it anticipates that in geographical regions with drier forests and more dynamic natural disturbance regimes, land managers will consider taking a landscape approach to managing critical habitat. This landscape approach would recognize that large areas are essential in these regions to accommodate disturbance-driven shifts in the physical or biological features essential for the conservation of the northern spotted owl, and that restorative management actions may be needed across these landscapes to help manage for resilience in such a dynamic ecosystem. These large landscapes, although essential to provide for the conservation of the northern spotted owl, do include within their boundaries several particular types of areas that are not included in critical habitat, because they cannot support northern spotted owl habitat. The following types of areas are not critical habitat for the northern spotted owl, and are not included in the revised designation:
• Meadows and grasslands. These include dry, upland prairies and savannas found in the valleys and foothills of western Washington, Oregon, and northwest California; subalpine meadows; and grass and forb dominated cliffs, bluffs and grass balds found throughout these same areas. Dominated by native grasses and diverse forbs, they may include a minor savanna component of Oregon white oak, Douglas-fir, or Ponderosa pine.
• Oak and aspen (
• Manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located.
When determining critical habitat boundaries, we made every effort to avoid including these areas because they lack physical or biological features for the northern spotted owl. Due to the limitations of mapping at such fine scales, however, we were often not able to segregate these areas from areas shown as critical habitat on critical habitat maps suitable in scale for publication within the Code of Federal Regulations. Thus, we have included regulatory text clarifying that these areas are not included in the designation even if within the mapped boundaries of critical habitat, as a Federal action involving these lands would not trigger section 7 consultation with respect to effects to critical habitat unless the specific action would affect the physical or biological features in the adjacent critical habitat.
Consistent with the standards of the Act and our regulations we have identified 9,577,969 ac (3,876,064ha) in 11 units and 60 subunits as meeting the definition of critical habitat for the northern spotted owl. The 11 units we have identified as critical habitat are: (1) North Coast Olympics, (2) Oregon Coast Ranges, (3) Redwood Coast, (4) West Cascades North, (5) West Cascades Central, (6) West Cascades South, (7) East Cascades North, (8) East Cascades South, (9) Klamath West, (10) Klamath East, and (11) Interior California Coast Ranges. All of the critical habitat units and subunits identified were occupied at the time of listing; however, some units may include some smaller areas that were not known to be occupied at the time of listing but have been determined to be essential to the conservation of the species. In addition, as described above, we have determined that all areas being designated are essential to the conservation of the species. Land ownership of the designated critical habitat includes Federal and State lands. No tribal lands are included in the critical habitat designation. The approximate area of each critical habitat unit is shown in Table 6. Table 7 gives totals by land ownership.
We present brief descriptions of all units and their subunits below. For each subunit, we describe the proportion of the area that is covered by verified northern spotted owl home ranges at the time of listing. As described above in the section Criteria Used to Identify Critical Habitat, all areas being designated that were occupied at the time of listing contain the physical or biological features essential to the conservation of the northern spotted owl, and which may require special management considerations or protection. In addition, there are smaller areas of suitable habitat within subunits that we considered likely occupied by nonterritorial owls and dispersing subadults, at the time of listing, as well as some smaller areas of younger forest within the larger habitat mosaic that may have been unoccupied at the time of listing. Due to some potential for uncertainty in these latter two categories of areas in terms of occupancy at the time of listing, we evaluated all such areas applying the standard under section 3(5)(A)(ii) of the Act, and have determined that all such areas included in this designation are essential to the conservation of the species. In addition, as a result of our application of the modeling framework described earlier, we have determined that all areas identified here as critical habitat, whether occupied at the time of listing or unoccupied at the time of listing, are essential to the conservation of the species and therefore meet the definition of critical habitat under section 3(5)(A)(ii) of the Act. This applies to all units and subunits described below.
Unit 1 consists of 824,500 ac (333,623 ha) and contains five subunits. This unit consists of the Oregon and Washington Coast Ranges Section M242A, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994a, Section M242A). This region is characterized by high rainfall, cool to moderate temperatures, and generally low topography (1,470 to 2,460 ft (448 to 750 m)). High elevations and cold temperatures occur in the interior portions of the Olympic Peninsula, but northern spotted owls in this area are limited to the lower elevations (less than 2,950 ft (900 m)). Forests in the NCO are dominated by western hemlock, Sitka spruce, Douglas-fir, and western red cedar (
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 94 percent of the area of NCO-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicate that approximately 95 percent of the area of this subunit was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicate that approximately 63 percent of the area of NCO-4 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider a large part of this subunit to have been occupied at the time of listing. There are some areas of younger forest in this subunit that may have been unoccupied at the time of listing. We have
Our evaluation of sites known to be occupied at the time of listing indicate that approximately 63 percent of the area of NCO-5 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider a large part of this subunit to have been occupied at the time of listing. There are some areas of younger forest in this subunit that may have been unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat in this subunit is especially important for providing for population growth and additional demographic support in this region. The development of additional suitable habitat in this subunit is needed to support viable northern spotted owl populations over the long term. The recruitment of additional suitable habitat will also contribute to the successful dispersal of northern spotted owls, and serve to buffer northern spotted owls from competition with the barred owl.
Unit 2 consists of 859,864 ac (347,975 ha) and contains six subunits. This unit consists of the southern third of the Oregon and Washington Coast Ranges Section M242A, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994a, Section M242A). We split the section in the vicinity of Otter Rock, OR, based on gradients of increased temperature and decreased moisture that result in different patterns of vegetation to the south. Generally this region is characterized by high rainfall, cool to moderate temperatures, and generally low topography (980 to 2,460 ft (300 to 750 m)). Forests in this region are dominated by western hemlock, Sitka spruce, and Douglas-fir; hardwoods are limited in species diversity (largely bigleaf maple and red alder) and distribution, and are typically limited to riparian zones. Douglas-fir and hardwood species associated with the California Floristic Province (tanoak, Pacific madrone, black oak, giant chinquapin (
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 55 percent of the area of OCR-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider a large part of this subunit to have been occupied at the time of listing. There are some areas of younger forest in this subunit that may have been unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat in this subunit is especially important for providing for population growth and additional demographic support in this region. The development of additional suitable habitat in this subunit is needed to support viable northern spotted owl populations over the long term. The recruitment of additional suitable habitat will also contribute to the successful dispersal of northern spotted owls, and serve to buffer northern spotted owls from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 77 percent of the area of OCR-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 97 percent of the area of OCR-3 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 43 percent of the area of OCR-4 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider a large part of this subunit to have been occupied at the time of listing. There are some areas of younger forest in this subunit that may have been unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat in this subunit is especially important for providing essential connectivity between currently occupied areas to support the successful dispersal of northern spotted owls, and may also help to buffer northern spotted owls from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 94 percent of the area of OCR-5 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 97 percent of the area of OCR-6 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Unit 3 contains 180,855ac (73,189ha) and three subunits. This unit consists of the Northern California Coast Ecological Section 263, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994b, entire). This region is characterized by low-lying terrain (0 to 2,950 ft (0 to 900 m)) with a maritime climate, generally mesic conditions, and moderate temperatures. Climatic conditions are rarely limiting to northern spotted owls at all elevations. Forest communities are dominated by redwood, Douglas-fir-tanoak forest, coast live oak, and tanoak series. The vast majority of the region is in private ownership, dominated by a few large industrial timberland holdings. The results of numerous studies of northern spotted owl habitat relationships suggest stump-sprouting and rapid growth rates of redwoods, combined with high availability of woodrats in patchy, intensively managed forests, enables northern spotted owls to maintain high densities in a wide range of habitat conditions within the Redwood zone.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 78 percent of the area of RDC-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Special management considerations or protection are required in this subunit to address threats from the barred owl. Suitable habitat within the subunit is relatively contiguous north-to-south, and is capable of supporting a sustainable subpopulation of owls. The subunit is weakly connected to the adjacent CHU to the east (ICC) and to the coastal subunit to the north (RDC-1); it is relatively well connected to the coastal subunit to the south (RDC-3).
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 85 percent of the area of RDC-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 82 percent of the area of RDC-5 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
This unit contains 542,274 ac (219,450 ha) and two subunits. This unit coincides with the northern Western Cascades Section M242B, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994a, Section M242B), combined with the western portion of M242D (Northern Cascades Section), extending from the U.S.-Canadian border south to Snoqualmie Pass in central Washington. It is similar to the Northern Cascades Province of Franklin and Dyrness (1988, pp. 17-20). This region is characterized by high mountainous terrain with extensive areas of glaciers and snowfields at higher elevation. The marine climate brings high precipitation (both annual and summer) but is modified by high elevations and low temperatures over much of this modeling region. The resulting distribution of forest vegetation is dominated by subalpine species, mountain hemlock and silver fir; the western hemlock and Douglas-fir forests typically used by northern spotted owls are more limited to lower elevations and river valleys (northern spotted owls are rarely found at elevations greater than 4,200 ft (1,280 m) in this region) grading into the mesic Puget lowland to the west.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 92 percent of the area of WCN-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 79 percent of the area of WCN-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long
This unit contains 909,687 ac (368,136 ha) and three subunits. This region consists of the midsection of the Western Cascades Section M242B, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994a, Section M242B), extending from Snoqualmie Pass in central Washington south to the Columbia River. It is similar to the Southern Washington Cascades Province of Franklin and Dyrness (1988, pp. 21-23). We separated this region from the northern section based on differences in northern spotted owl habitat due to relatively milder temperatures, lower elevations, and greater proportion of western hemlock/Douglas-fir forest and occurrence of noble fir (
Our evaluation of sites known to be occupied at the time of listing indicate that approximately 96 percent of the area of WCC-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 96 percent of the area of WCC-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 96 percent of the area of WCC-3 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and
Unit 6 contains 1,355,198ac (548,429 ha) and contains six subunits. This unit consists of the southern portion of the Western Cascades Section M242B, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994a, Section M242B), and extends from the Columbia River south to the North Umpqua River. We separated this region from the northern section due to its relatively milder temperatures, reduced summer precipitation due to the influence of the Willamette Valley to the west, lower elevations, and greater proportion of western hemlock/Douglas-fir forest. The southern portion of this region exhibits a gradient between Douglas-fir/western hemlock and increasing Klamath-like vegetation (mixed conifer/evergreen hardwoods), which continues across the Umpqua divide area. The southern boundary of this region is novel and reflects a transition to mixed-conifer forest (Franklin and Dyrness 1988, pp. 23-24, 137-143). The importance of Douglas-fir dwarf mistletoe increases to the south in this region, but most northern spotted owl nest sites are found in defective large trees, and occasionally nests of other raptors.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 88 percent of the area of WCS-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 82 percent of the area of WCS-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011 p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 85 percent of the area of WCS-3 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 86 percent of the area of WCS-4 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 83 percent of the area of WCS-5 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 97 percent of the area of WCS-6 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Unit 7 contains 1,345,523ac (557,002 ha) and nine subunits. This unit consists of the eastern slopes of the Cascade range, extending from the Canadian border south to the Deschutes National Forest near Bend, OR. Terrain in portions of this region is glaciated and steeply dissected. This region is characterized by a continental climate (cold, snowy winters and dry summers). High-frequency, low-intensity fire regimes occur at lower elevations, mid elevations have mixed-severity regimes, and high elevations have high-severity regimes. Increased precipitation from marine air passing east through Snoqualmie Pass and the Columbia River has resulted in an increase of moist forest conditions in this region (Hessburg
Forest composition, particularly the presence of grand fir and western larch, distinguishes this modeling region from the southern section of the eastern Cascades. While ponderosa pine forest dominates lower and middle elevations in both this and the southern section, the northern section supports grand fir and Douglas-fir habitat at middle elevations. Dwarf mistletoe provides an important component of nesting habitat, enabling northern spotted owls to nest within stands of relatively younger and smaller trees.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 41 percent of the area of ECN-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 34 percent of the area of ECN-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 71 percent of the area of ECN-3 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 78 percent of the area of ECN-4 was covered by verified
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 85 percent of the area of ECN-5 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 88 percent of the area of ECN-6 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that nearly 100 percent of the area of ECN-7 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicate that approximately 61 percent of the area of ECN-8 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 45 percent of the area of ECN-9 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Unit 8 contains 368,381 ac (149,078 ha) and three subunits. This unit incorporates the Southern Cascades Ecological Section M261D, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994c, Section M261D) and the eastern slopes of the Cascades from the Crescent Ranger District of the Deschutes National Forest south to the Shasta area. Topography is gentler and less dissected than the glaciated northern section of the eastern Cascades. A large expanse of recent volcanic soils (pumice region) (Franklin and Dyrness 1988, pp. 25-26), large areas of lodgepole pine, and increasing presence of red fir (
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 78 percent of the area of ECS-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 77 percent of the area of ECS-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 69 percent of the area of ECS-3 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider a large part of this subunit to have been occupied at the time of listing. There are some areas of younger forest in this subunit that may have been unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat in this subunit is especially important for providing essential connectivity between currently occupied areas to support the successful dispersal of northern spotted owls, and may also help to buffer northern spotted owls from competition with the barred owl.
Unit 9 contains 1,197,389 ac (484,565 ha) and nine subunits. This unit consists of the western portion of the Klamath Mountains Ecological Section M261A, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994c, Section M261A). A long north-south trending system of mountains (particularly South Fork Mountain) creates a rainshadow effect that separates this region from more mesic conditions to the west. This region is characterized by very high climatic and vegetative diversity resulting from steep gradients of elevation, dissected topography, and the influence of marine air (relatively high potential precipitation). These conditions support a highly diverse mix of mesic forest communities such as Pacific Douglas-fir, Douglas-fir tanoak, and mixed evergreen forest interspersed with more xeric forest types. Overall, the distribution of tanoak is a dominant factor distinguishing the Western Klamath Region. Douglas-fir dwarf mistletoe is uncommon and seldom used for nesting platforms by northern spotted owls. The prey base of northern spotted owls within the Western Klamath is diverse, but dominated by woodrats and flying squirrels.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 96 percent of the area of KLW-1was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 71 percent of the area of KLW-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 88 percent of the area of KLW-3 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 95 percent of the area of KLW-4 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 98 percent of the area of KLW-5 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 91 percent of the area of KLW-6 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 91 percent of the area of KLW-7 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 85 percent of the area of KLW-8 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 89 percent of the area of KLW-9 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Unit 10 contains 1,052,731ac (426,025ha) and seven subunits. This unit consists of the eastern portion of the Klamath Mountains Ecological Section M261A, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994c, Section M261A), and portions of the Southern Cascades Ecological Section M261D in Oregon. This region is characterized by a Mediterranean climate, greatly reduced influence of marine air, and steep, dissected terrain. Franklin and Dyrness (1988, pp. 137-149) differentiate the mixed-conifer forest occurring on the “Cascade side of the Klamath from the more mesic mixed evergreen forests on the western portion (Siskiyou Mountains),” and Kuchler (1977) separates out the eastern Klamath based on increased occurrence of ponderosa pine. The mixed-conifer/evergreen hardwood forest types typical of the Klamath region extend into the southern Cascades in the vicinity of Roseburg and the North Umpqua River, where they grade into the western hemlock forest typical of the Cascades. High summer temperatures and a mosaic of open forest conditions and Oregon white oak (
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 84 percent of the area of KLE-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 92 percent of the area of KLE-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 97 percent of the area of KLE-3 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 81 percent of the area of KLE-4 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 86 percent of the area of KLE-5 was covered by verified
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 97 percent of the area of KLE-6 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 96 percent of the area of KLE-7 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Unit 11 contains 941,568 ac (381,039 ha) and eight subunits. This unit consists of the Northern California Coast Ranges ecological Section M261B, based on section descriptions of forest types from Ecological Subregions of the United States (McNab and Avers 1994c, Section M261B), and differs markedly from the adjacent redwood coast region. Marine air moderates winter climate, but precipitation is limited by rainshadow effects from steep elevational gradients (328 to 7,847 ft (100 to 2,400 m)) along a series of north-south trending mountain ridges. Due to the influence of the adjacent Central Valley, summer temperatures in the interior portions of this region are among the highest within the northern spotted owl's range. Forest communities tend to be relatively dry mixed-conifer, blue and Oregon white oak, and the Douglas-fir tanoak series. Northern spotted owl habitat within this region is poorly known; there are no Demographic Study Areas (DSAs—areas within forested habitats specifically surveyed to determine northern spotted owl occupation and density), and few studies have been conducted here. Northern spotted owl habitat and occupancy data obtained during this project suggests that some northern spotted owls occupy steep canyons dominated by live oak and Douglas-fir. The distribution of dense conifer habitats most suitable for the northern spotted owl is limited to higher elevations on the Mendocino National Forest.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 97 percent of the area of ICC-1 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 98 percent of the area of ICC-2 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 89 percent of the area of ICC-3 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 93 percent of the area of ICC-4 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 78 percent of the area of ICC-5 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 90 percent of the
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 73 percent of the area of ICC-7 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Our evaluation of sites known to be occupied at the time of listing indicates that approximately 84 percent of the area of ICC-8 was covered by verified northern spotted owl home ranges at the time of listing. When combined with likely occupancy of suitable habitat and occupancy by nonterritorial owls and dispersing subadults, we consider this subunit to have been largely occupied at the time of listing. In addition, there may be some smaller areas of younger forest within the habitat mosaic of this subunit that were unoccupied at the time of listing. We have determined that all of the unoccupied and likely occupied areas in this subunit are essential for the conservation of the species to meet the recovery criterion that calls for the continued maintenance and recruitment of northern spotted owl habitat (USFWS 2011, p. ix). The increase and enhancement of northern spotted owl habitat is necessary to provide for viable populations of northern spotted owls over the long term by providing for population growth, successful dispersal, and buffering from competition with the barred owl.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or determinations of designated critical habitat of such species. Decisions by the Fifth and Ninth Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with the Service. Examples of actions that are subject to the section 7 consultation process are actions on State, Indian, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
Section 7 consultation results in issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected, and the Federal agency has retained discretionary involvement or control over the action, or the agency's discretionary involvement or control is authorized by law. Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor involved in the destruction/adverse modification determination for a proposed Federal agency action is whether the affected critical habitat would continue to serve its intended conservation function or purpose for the species with implementation of the proposed action after taking into account any anticipated cumulative effects (USFWS 2004,
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the northern spotted owl under section 7(a)(2) of the Act. In general, there are five possible outcomes in terms of how proposed Federal actions may affect the PCEs or physical or biological features of northern spotted owl critical habitat or essential habitat qualities associated with that critical habitat area: (1) No effect; (2) wholly beneficial effects (e.g., improve habitat condition); (3) both short-term adverse effects and long-term beneficial effects; (4) insignificant or discountable adverse effects; or (5) wholly adverse effects. Actions with no effect on the PCEs and physical or biological features of occupied areas or the essential habitat qualities in unoccupied areas do not require section 7 consultation, although such actions may still require consultation if they have effects on the species itself as a result of its status as a threatened species under the Act. Actions with effects to the PCEs, physical or biological features, or other essential habitat qualities of northern spotted owl critical habitat that are discountable, insignificant, or wholly beneficial would be considered not likely to adversely affect critical habitat, and do not require formal consultation if the Service concurs in writing with that Federal action agency determination. Actions that are likely to adversely affect the physical or biological features or other essential habitat qualities of northern spotted owl critical habitat require formal consultation and the preparation of a Biological Opinion by the Service. The Biological Opinion sets forth the basis for our section 7(a)(2) determination as to whether the proposed Federal action is likely to destroy or adversely modify northern spotted owl critical habitat.
Activities that may destroy or adversely modify critical habitat are those that alter the essential physical or biological features or other essential habitat qualities of the critical habitat to an extent that appreciably reduces the conservation value of the critical habitat for the listed species. As discussed above, the conservation role or value of northern spotted owl critical habitat is to adequately support the life-history needs of the species to the extent that well-distributed and interconnected northern spotted owl nesting populations are likely to persist within properly functioning ecosystems at the critical habitat unit and range-wide scales.
Proposed Federal actions that may affect northern spotted owl critical habitat will trigger the consultation requirements under section 7 of the Act and compliance with the section 7(a)(2) standard described above. The consultation process evaluates the effects of a proposed action to designated critical habitat regardless of the species' presence or absence. For an action that may affect critical habitat, the next step is to determine whether it is likely to adversely affect critical habitat. For example, where a project is designed to reduce fuels such that the effect of wildfires will be reduced, but will also reduce foraging opportunities within treatment areas, established interagency consultation teams should determine whether the proposed project has more than an insignificant impact on the foraging PCEs for northern spotted owls. A localized reduction in foraging habitat within a stand may have such an insignificant impact on foraging PCEs within the stand that a not likely to adversely affect determination is appropriate. Similarly, a hazard tree removal project in a stand with many suitable nest trees may have such a minimal reduction in nesting PCEs of that stand that the effect to nesting habitat is insignificant. In such a case, a “not likely to adversely affect” determination would be appropriate.
For actions that are likely to adversely affect critical habitat, the agencies will enter into formal consultation. At this stage of consultation, scale and context are especially important in evaluating the potential effects of forest management on northern spotted owl habitat. The degree to which various forest management activities are likely to affect the capability of the critical habitat to support northern spotted owl nesting, roosting, foraging, or dispersal will vary depending on factors such as the scope and location of the action, and the quantity of the critical habitat affected. In addition, in analyzing whether an action will likely destroy or adversely modify critical habitat, the effects of the action on the factors that were the basis for determining the area to meet the definition of critical habitat should be considered.
In general, we would anticipate that management actions that are consistent with the overall purpose for which a critical habitat unit was designated would not likely destroy or adversely modify critical habitat as those terms are used in the context of section 7(a)(2) of the Act. Such actions include activities whose intent is to restore ecological processes or long-term forest health to
The Presidential Memo, dated February 28, 2012 (77 FR 12985; March 5, 2012), directed the Service to address six action items in the final revised critical habitat rule for the northern spotted owl. One item in the Memo called for the Service to develop clear direction “for evaluating logging activity in areas of critical habitat, in accordance with the scientific principles of active forestry management and to the extent permitted by law.” The following summarizes the evaluation process for logging activities in areas of northern spotted owl critical habitat under section 7 of the Act and its implementing regulations, and our plans for close coordination with the land management agencies to best meet the dual goals of recovering the northern spotted owl and managing our public forest lands for multiple use.
The Service is committed to working closely with the U.S. Forest Service and BLM to implement the active management and ecological forestry concepts discussed in the Revised Recovery Plan and this critical habitat rule. Both recommend that land managers use the best science to maintain and restore forest health and resilience in the face of climate change and other challenges.
To meet this goal, we have prioritized the timely review of forestry projects that will be proposed in critical habitat. We have already completed section 7 conference opinions on the proposed rule with the agencies, and have recently held interagency coordination meetings with the section 7 Level 1 staff in Oregon, Washington, and California. In these meetings, we identified ways to streamline the section 7 process to ensure that potential projects can be implemented in a timely manner consistent with northern spotted owl conservation. We are also closely involved in and supportive of the respective Forest Service and BLM landscape-level planning efforts currently underway, and will work with the agencies to incorporate the conservation planning recommended in the Revised Recovery Plan and discussed in this final critical habitat designation.
Finally, appropriate Service staff have been directed that all levels of management and field teams stay fully engaged in this process to ensure these commitments are met.
The 1992 northern spotted owl critical habitat rule (57 FR 1796; January 15, 1992) identified the primary constituent element (PCE) as the fundamental scale of analysis at which the “evaluation of actions that may affect critical habitat for the northern spotted owl” should occur. Those elements included nesting, roosting, foraging and dispersal habitats. In the 2008 northern spotted owl critical habitat rule (73 FR 47326; August 13, 2008), the forested stand is identified as the appropriate scale for determining whether an action was likely to adversely affect northern spotted owl critical habitat. The 2012 proposed revised critical habitat rule identified a 500-ac (200-ha) circle as a logical scale for determining the effects of a timber sale to critical habitat because research shows northern spotted owls respond more favorably to an area larger than a single tree when choosing where to live.
However, there are many variables to be considered when determining whether the effects to critical habitat are adverse or not. When making a determination as to whether an action is likely to adversely affect critical habitat, and thus require formal consultation, it is not possible to design a “one size fits all” set of rules due to differences in project types, habitat types, and habitat needs across the range of the species (Fontaine and Kennedy 2012, p. 1559). This determination should be conducted at a scale that is relevant to the northern spotted owl life-history functions supplied by the PCEs and affected by the project. We note that this more localized scale differs from that used in determining whether an action will destroy or adversely modify critical habitat, which is made at the scale of the designated critical habitat, as described further below.
Northern spotted owl critical habitat PCE 4 (habitat to support the transience and colonization phases of dispersal) provides a life-history need that functions at a landscape-level scale and should be assessed at a larger scale than the other PCEs. Potential scales of analysis include the local watershed (e.g., fifth-field watershed) or subwatershed (e.g., sixth-field watershed), a dispersal corridor, or a relevant landform. Both PCE 2 (habitat that provides for nesting and roosting) and PCE 3 (habitat that provides for foraging) provide life-history needs that function at a more localized landscape, which should help inform the scale at which the determination of whether an action will likely adversely affect critical habitat should be conducted. We encourage the level one consultation teams to tailor this scale of the effects determination to the localized biology of the life-history needs of the northern spotted owl (such as the stand scale, a 500-ac (200-ha) circle, or other appropriate, localized scale).
If a project produces an effect on critical habitat that is wholly beneficial, insignificant, or discountable, then the project is not likely to adversely affect critical habitat, and consultation would be concluded with a letter of concurrence. Wholly beneficial effects include those that actively promote the development or improve the functionality of critical habitat for the northern spotted owl without causing adverse effects to the PCEs. Such actions might involve variable-density thinning in forest stands that do not currently support nesting, roosting, or foraging habitat for the northern spotted owl, which would speed the development of these types of habitats, while maintaining dispersal habitat function. Thinning or other treatments in young plantations that are specifically designed to accelerate the development of owl habitat, and either are in areas that do not provide dispersal habitat or where the effects to dispersal capability would be insignificant or discountable, would also fall into the “not likely to adversely affect” category. While these wholly beneficial actions may affect critical habitat and would, therefore, require consultation under section 7 of the Act, they most likely would be completed via an informal consultation with a determination that they are not likely to adversely affect critical habitat.
Likewise, if the adverse effects of a proposed Federal action on the life-history needs supported by physical or biological features of northern spotted owl critical habitat are expected to be discountable or insignificant, that action would also be considered not likely to adversely affect northern spotted owl critical habitat. In such cases, the section 7 consultation requirements can also be satisfied through the informal concurrence process. Examples of such actions may include: Pre-commercial or commercial thinning that does not delay the development of essential physical or biological features; fuel-reduction treatments that have a negligible effect on northern spotted owl foraging habitat
Some proposed Federal forest management activities may have short-term adverse effects and long-term beneficial effects on the physical or biological features of northern spotted owl critical habitat. The Revised Recovery Plan for the Northern Spotted Owl recommends that land managers actively manage portions of both moist and dry forests to improve stand conditions and forest resiliency, which should benefit the long-term recovery of the northern spotted owl (USFWS 2011, p. III-11). For example, variable thinning in single-story, uniform forest stands to promote the development of multistory structure and nest trees may result in short-term adverse impacts to the habitat's current capability to support owl dispersal and foraging, but have long-term benefits by creating higher quality habitat that will better support territorial pairs of northern spotted owls. Such activities would have less impact in areas where foraging and dispersal habitat is not limiting, and ideally can be conducted in a manner that minimizes short-term negative impacts. Even though they may have long-term beneficial effects, if they have short-term adverse effects, such actions may adversely affect critical habitat, and would require formal consultation under section 7 of the Act. For efficiency, such actions may be evaluated under section 7 programmatically at the landscape scale (e.g., USFS or BLM District).
Habitat conditions in moist/wet and dry/fire-prone forests within the range of the northern spotted owl vary widely, as do the types of management activities designed to accelerate or enhance the development of northern spotted owl habitat. “Wet” and “dry” are ends of a spectrum, not distinct categories that adequately describe the full range of forest types within the range of the northern spotted owl. Because these categories are broad, and conditions on the ground are more variable, land managers and cooperators should have the expectation that multiple forest types may be involved, and similar projects in different forest types may not always lead to the same effect determination for purposes of compliance with section 7 of the Act.
To make effects determinations, we recommend generating area-specific maps showing the current habitat condition (such as types of habitat, known nest trees, or other feature) and, using information on the proposed action (such as location, type and intensity of harvest, location of new roads and landings, or other proposed activity effects), produce a post-project habitat map such that the pre- and post-project comparison of the PCEs can be assessed. We also recommend the cooperative development of a spatial and temporal framework for evaluating the impact of both the short- and long-term effects of the proposed activities on the northern spotted owl. Framework examples include a landscape assessment or a checklist of key questions the answers to which will illustrate how the project will impact the northern spotted owl (see Spies
If the effects of the project have more than an insignificant or discountable impact on the ability of the PCEs to provide life-history functions for the northern spotted owl, then the project is likely to adversely affect northern spotted owl critical habitat, and formal consultation is warranted. For projects that will adversely affect critical habitat, it is the Service's responsibility to conduct an analysis of whether the action is likely to “destroy or adversely modify critical habitat” during the formal consultation process. As discussed below, the determination of whether an action is likely to destroy or adversely modify critical habitat is made at the scale of the entire critical habitat network. However, a proposed action that compromises the capability of a subunit or unit to fulfill its intended conservation function or purpose could represent an appreciable reduction in the conservation value of the entire designated critical habitat. Therefore, the biological opinion should describe the relationship between the conservation role of the action area, affected subunits, units, and the entire designated critical habitat. This analysis must incorporate all direct and indirect effects and any cumulative effects from the project within the action area. If, after the formal consultation analysis, it is determined that the proposed project will not destroy or adversely modify critical habitat, then the action can be conducted.
Factors to consider in evaluating whether activities, including timber harvest, are likely to destroy or adversely modify critical habitat pursuant to section 7 include:
• The extent of the proposed action, both its temporal and spatial scale, relative to the critical habitat subunit and unit within which it occurs, and the entire critical habitat network.
• The specific purpose for which the affected subunit was identified and designated as critical habitat.
• The cumulative effects of all completed activities in the critical habitat unit.
• The impact of the proposed action on the ability of the affected critical habitat to continue to support the life-history functions supplied by the PCEs.
• The impact of the proposed action on the subunit's likelihood of serving its intended conservation function or purpose.
• The impact of the proposed action on the unit's likelihood of continuing to contribute to the conservation of the species.
• The overall consistency of the proposed action with the intent of the recovery plan or other landscape-level conservation plans.
• The special importance of project scale and context in evaluating the potential effects of timber harvest to northern spotted owl critical habitat.
The first step is to describe the impacts to critical habitat in the action area with respect to the subunit's intended functions as identified in this rule. For example, if a particular subunit was designated to support northern spotted owl connectivity between subunits, then the loss or impact to connectivity must be assessed. Subunits that are expected to provide demographic support should be assessed for their ability to continue to support northern spotted owl nesting territories in conditions suitable for occupancy by pairs of owls (e.g., amount and location of nesting habitat, proximity of foraging habitat, etc.). The analysis should describe the extent to which the project is expected to prevent, preclude, or significantly impair the ability of that subunit to meet its intended function. The analysis should not incorporate the effect of the proposed action on individual northern spotted owls but, instead, on the life-history functions supplied by the PCEs and the physical biological features. Effects to northern spotted owls should be included in the effects to the species section of a biological opinion, as appropriate.
The analysis in a biological assessment or a biological opinion should include an evaluation of the type, frequency, magnitude, and duration of impacts likely to be caused by the action on the PCEs of the action area, affected subunits and critical habitat units, and an assessment of how those impacts are likely to influence the capability of the affected critical habitat
Consideration of the effects of the action, together with any cumulative effects, will form the basis for the biological opinion's determination as to whether the action will destroy or adversely modify critical habitat. In accordance with Service policy, the adverse modification determination is made at the scale of the entire designated critical habitat, unless the critical habitat rule identifies another basis for the analysis (FWS and NMFS 1998). The adverse modification determination for the northern spotted owl will occur at the scale of the entire designated critical habitat, as described below, with consideration given to the need to conserve viable populations within each of the recovery units identified in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, Recovery Criterion 2).
It is important to note that although the adverse modification determination is made at the scale of the entire designated critical habitat, a proposed action that compromises the capability of a subunit or unit to fulfill its intended conservation function or purpose could represent an appreciable reduction in the conservation value of the entire designated critical habitat. Therefore, the biological opinion should describe the relationship between the conservation role of the action area, affected subunits, units, and the entire designated critical habitat. In this way, the biological opinion establishes a sensitive analytical framework for informing the determination of whether a proposed action is likely to appreciably reduce the conservation role of critical habitat overall.
The Service has assured the BLM and FS that it is committed to working closely with them to evaluate and implement active management and ecological forestry concepts of the recovery plan and critical habitat rule into potential timber management projects. Both documents recommend that land managers use the best science to maintain and restore forest health and resilience in the face of climate change and other challenges.
To meet this goal we have prioritized the timely review of forestry projects that will be proposed in critical habitat. We have already completed section 7 conference opinions on the proposed rule with several of your units, and we have recently held interagency coordination meetings with the section 7 Level 1 staff in Oregon, Washington, and California. In these meetings, we identified ways to streamline the section 7 process to ensure that potential projects can be implemented in a timely manner consistent with northern spotted owl conservation. We are also closely involved in and supportive of the respective FS and BLM landscape-level planning efforts currently underway and will work with you to incorporate the conservation planning reflected in the revised recovery plan and the final critical habitat designation.
Finally, appropriate Service staff have been directed that all levels of management and field teams—from Level 1 biologists up to the Assistant Regional Director—stay fully engaged in this process to ensure these commitments are met. Any problems or disagreement should be promptly elevated and resolved.
Within dry forests, the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) emphasizes active forest management that could meet overlapping goals of northern spotted owl conservation, climate change response, and restoration of dry forest ecological structure, composition, and process, including wildfire and other disturbances (USFWS 2011, pp. III-20). For the rest of the northern spotted owl's range that is not fire-prone, the Revised Recovery Plan emphasizes habitat management that accelerates the development of future habitat, restores larger habitat blocks, and reduces habitat fragmentation. The following discussion describes the type of management approaches that would be consistent with the Revised Recovery Plan in the West Cascades/Coast Ranges of Oregon and Washington, East Cascades, and the Redwood Coast zones, and in some cases includes consideration of possible corresponding effect determinations for activities implementing these approaches, for the purpose of analyzing effects to critical habitat under section 7 of the Act. The Klamath and Northern California Interior Coast Ranges regions contain conditions similar to the three regions discussed below, and similar management approaches would be consistent with the recovery needs of the owl.
The primary goal of the Revised Recovery Plan for this portion of the northern spotted owl's range is to conserve stands that support northern spotted owl occupancy or contain high-value northern spotted owl habitat (USFWS 2011, p. III-17). Silvicultural treatments are generally not needed to accomplish this goal. However, there is a significant amount of younger forest that occurs between and around the older stands, where silvicultural treatments may accelerate the development of these stands into future northern spotted owl nesting habitat, even if doing so temporarily degrades existing dispersal habitat, as is recommended in Recovery Action 6 (USFWS 2011, p. III-19). The Revised Recovery Plan encourages silviculture designed to develop late-successional structural complexity and to promote resilience (USFWS 2011, pp. III-17 to III-19). Restoration or ecological prescriptions can help uniform stands of poor quality develop more quickly into more diverse, higher quality northern spotted owl habitat, and provide resiliency in the face of potential climate change impacts in the future. Targeted vegetation treatments could simultaneously increase canopy and age-class diversity, putting those stands on a more efficient trajectory towards nesting and roosting habitat, while reducing fuel loads. Introducing varying levels of spatial heterogeneity, both vertically and horizontally, into forest ecosystems can contribute to both of the goals stated above.
On matrix lands under the NWFP where land managers have a range of management goals, the Service anticipates that not all forest management projects in critical habitat will be focused on the development or conservation of northern spotted owl habitat. Ideally, proposed actions within critical habitat should occur on relatively small patches of younger, mid-seral forest stands that do not cause reductions in higher quality northern spotted owl habitat. They should also be planned in such a way that their net occurrence on the regional landscape is consistent with broader ecosystem-based planning targets (e.g., Spies
In cases where these moist forest treatments in matrix are intended to meet management goals other than northern spotted owl conservation, they can be designed to enable the development of northern spotted owl habitat over time at the landscape scale. If planned well at this scale, these projects may have short-term adverse effects, but are not expected to adversely modify the role and function of critical habitat units. In other words, such treatments can be dispersed across the landscape and over time to both accommodate northern spotted owl habitat needs and conservation of diverse and complex early-seral habitat. Additional information about ecological forestry activities in moist forests can be found in the Revised Recovery Plan under
The Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) recommends that the dynamic, fire-prone portion of the northern spotted owl's range be actively managed to conserve northern spotted owls, but also address climate change and restore dry forest ecological structure, composition, and processes (
Management in dry forests should increase the likelihood that northern spotted owl habitat will remain on the landscape longer and develop as part of the dynamic fire- and disturbance-adapted community. Several management approaches can be described for these systems. The first is to maintain adequate northern spotted owl habitat in the near term to allow owls to persist on the landscape in the face of threats from barred owl expansion and habitat alterations from fire and other disturbances. The next is to restore landscapes that are resilient to fire and other disturbances, including those projected to occur with climate change. This will require more than reducing fuels and thinning trees to promote low-severity fires; management will need to develop “more natural patterns and patch size distributions of forest structure, composition, fuels, and fire regime area” (Hessburg
Our prime objective for vegetation management activities within northern spotted owl critical habitat is to maintain adequate amounts of nesting, roosting, foraging, or dispersal habitat where it currently exists, and to restore degraded habitat where it is essential to the owl and can be best sustained on the landscape, as recommended in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, Section III). Successfully accomplishing these objectives can be facilitated by spatially and temporally explicit landscape assessments that identify areas valuable for northern spotted owl conservation and recovery, as well as areas important for process restoration (
Landscape assessments developed at the scale of entire National Forests, Ranger Districts, or BLM Districts have the broad perspective that can improve ability to estimate effects of management activities on the function of critical habitat and better identify and prioritize treatment areas and the actions that will restore landscapes while conserving northern spotted owl habitat. The Okanogan-Wenatchee National Forest has developed a landscape evaluation process as part of their forest restoration strategy (USDA 2010, pp. 36-52) that can serve as an example for other administrative units when developing their own assessment approaches. We suggest that the value of such assessments in guiding vegetation management within critical habitat can be enhanced by spatially identifying locations where restoration objectives and northern spotted owl habitat objectives converge, are in conflict, or simply are not an issue (see,
1. Spatially identify and map:
a. Existing northern spotted owl habitat and northern spotted owl nesting sites.
b. Places on the landscape where northern spotted owl habitat is expected to be retained longer on the landscape in the face of disturbance activities such as fire and insect outbreaks.
c. Places on the landscape where key ecosystem structures and processes are at risk and would benefit from restoration (e.g. legacy trees, unique habitats).
2. Overlay what is known about landscape patterns of vegetation and disturbance processes with items from step 1 above to determine:
a. Stands of high restoration value but low value as existing northern spotted owl habitat.
b. Stands of low restoration value but high value as existing northern spotted owl habitat.
c. Stands of low restoration value and low value as existing northern spotted owl habitat.
d. Stands of high restoration value and high value as existing northern spotted owl habitat.
In locations where there is high restoration value and high value as existing northern spotted owl habitat, a landscape assessment can help to build a strong rationale for impacting owl habitat functionality to achieve broader landscape goals. Conditions that may support management activities in these
1. The patch of habitat is located in an area where it is likely unsustainable and has the potential for conveying natural disturbances across the landscape in ways that jeopardize large patches of suitable northern spotted owl habitat.
2. There are nearby areas that are more likely to sustain suitable northern spotted owl habitat and are either currently habitat or will likely develop suitable conditions within the next 30 years.
3. The patch of habitat does not appear to be associated with a northern spotted owl home range or to promote successful dispersal between existing home ranges.
4. The area will still retain some habitat function after treatment, while still meeting the intended restoration objective. For example, stands that are suitable as foraging habitat may be degraded post treatment but remain foraging habitat after treatment. Or, stands may be downgraded to dispersal habitat as a result of treatment.
We do not expect the desired landscape conditions will be achieved within the next decade or two; a longer time will be required as younger forests develop into northern spotted owl nesting, roosting, and foraging habitat. In the interim, we recommend that land managers consider management actions to protect current habitat, especially where it occurs in larger blocks on areas of the landscape, where it is more likely to be resistant or resilient to fires and other disturbance agents. We also encourage land managers to consider actions to accelerate the restoration of habitat, especially where it is consistent with overall forest restoration and occurs in those portions of the landscape that are less fire prone or are resilient in the face of these disturbances. The careful application of these types of activities is expected to achieve a landscape that is more resilient to future disturbances. As such, we anticipate that projects designed to achieve this goal will need to be of a larger spatial scale as to have a meaningful effect on wildfire behavior, regimes, and extent. The effects of these projects will vary depending on existing condition, prescriptions, proximity of habitat, and other factors. It is likely that such projects may affect northern spotted owl critical habitat and require section 7 consultation.
Some situations also exist in the final critical habitat area where northern spotted owl habitat has been created through fire suppression activities (e.g., meadow conversion, white fir intrusion), but retention of those forested habitat elements is contrary to the overall goals of ecosystem restoration and long-term security for the owl. Restoration projects that modify these elements, while sometimes prudent and recommended (Franklin
While the Redwood Coast region of coastal northern California is similar to the West Cascades/Coast region in many respects, there are some distinct differences in northern spotted owl habitat use and diet within this zone. The long growing season, combined with the redwood's ability to resprout from stumps, allows redwood stands to attain suitable stand structure for nesting in a relatively short period of time (40 to 60 years) if legacy structures are present. In contrast to the large, contiguous, older stands desired in other wet provinces, some degree of fine-scale fragmentation in redwood forests appears to benefit northern spotted owls. These openings provide habitat for the northern spotted owl's primary prey, the dusky-footed woodrat. High woodrat abundance is associated with dense shrub and hardwood cover that persists for up to 20 years in recent forest openings created by harvesting or burns. Under dense shrub and hardwood cover, woodrats can forage, build nests, and reproduce, relatively secure from owl predation. These sites quickly become overpopulated, and surplus individuals are displaced into adjacent older stands where they become available as owl prey. When developing stands reach an age of around 20 years, understory vegetation is increasingly shaded-out, cover and food sources become scarce, and woodrat abundance declines rapidly. By this time, the stand that once supported a dense woodrat population makes a structural transition into a stand where woodrats are subject to intense owl predation. In northern spotted owl territories within the Redwood Forest zone, active management that creates small openings within foraging habitat can enhance northern spotted owl foraging opportunities and produce or retain habitat suitability in the short term. Actions consistent with this type of land management are not expected to adversely modify critical habitat.
This discussion has covered projects that may or may not require formal section 7 consultation. It is important to distinguish between a finding that a project is likely to adversely affect critical habitat and a finding at the conclusion of formal consultation that a project is likely to destroy or adversely modify critical habitat; these are two very different outcomes. It is not uncommon for a proposed project to be considered likely to adversely affect critical habitat, and thus require formal consultation, but still warrant a conclusion that it will not destroy or adversely modify critical habitat. An action may destroy or adversely modify critical habitat if it adversely affects the essential physical or biological features to an extent that the intended conservation function or purpose of critical habitat for the northern spotted owl is appreciably reduced.
The adverse modification determination is made at the scale of the entire designated critical habitat, unless the final critical habitat rule identifies another basis for that determination, such as at the scale of discrete units and/or groups of units necessary for different life cycle phases, units representing distinctive habitat characteristics or gene pools, or units fulfilling essential geographical distribution requirements of the species (USFWS and NMFS 1998, p. 4-39). In the case of northern spotted owl critical habitat, the adverse modification determination will be made at the scale of the entire designated critical habitat. However, by describing the relationship between the conservation role of affected subunits, units, and the entire designated critical habitat in the biological opinion, a sensitive analytical framework is established for informing the determination of whether a proposed action is likely to appreciably reduce the conservation role of the critical habitat overall. In this way, a proposed action that compromises the capability of a subunit or unit to fulfill its intended conservation function or purpose (e.g., demographic, genetic, or distributional support for northern spotted owl recovery) could represent an appreciable reduction in the conservation value of the entire designated critical habitat. This approach should avoid false no-adverse-modification determinations, when the functionality of a unit or subunit would actually be impaired by a proposed action.
As described above, in general, we do not anticipate that activities consistent with the stated management goals or recommended recovery actions of the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, Chapters II and III) would constitute adverse modification of critical habitat, even if those activities may have adverse effects in the short term, if the intended result over the long term is an improvement in the function of the habitat to provide for the essential life-history needs of the northern spotted owl. However, such activities will be evaluated under section 7, taking into account the specific proposed action, location, and other site-specific factors.
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines, in writing, that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
We consult with the military on the development and implementation of INRMPs for installations with listed species. We analyzed INRMPs developed by military installations located within the range of the designated critical habitat designation for the northern spotted owl to determine if they are exempt under section 4(a)(3) of the Act. The following areas are Department of Defense lands with completed, Service-approved INRMPs that fell within the area we proposed as revised critical habitat (77 FR 14062; March 8, 2012).
Joint Base Lewis-McChord (JBLM), formerly known as Fort Lewis, is an 86,500-ac (35,000-ha) U.S. Army military reservation in western Washington, south of Tacoma and the Puget Sound. JBLM contains one of the largest remaining intact forest areas in the Puget Sound basin, with approximately 54,400 ac (22,000 ha) of forests and woodlands, predominantly of the dry Douglas-fir forest type and including some moist forest types (Douglas-fir, red cedar, hemlock). The forested area of JBLM is managed by the Base's Forestry Program, and the primary mission for the JBLM Forest is to provide a variety of forested environments for military training. JBLM has a history of applying an ecosystem management strategy to their forests to provide for multiple conservation goals, which have included promoting native biological diversity, maintaining and restoring unique plant communities, and developing late-successional (older) forest structure. There are 14,997 ac (6,069 ha) of lands within the boundary of JBLM that were identified in the proposed critical habitat designation; these lands comprised subunit NCO-3 in the proposed rule (77 FR 14062; March 8, 2012).
JBLM has an INRMP in place that was approved in 2008; JBLM is in the process of updating that INRMP. To date, JBLM has managed their forest lands according to their Forest Management Strategy, first prepared for then-Fort Lewis in 1995 by the Public Forestry Foundation based in Eugene, Oregon, in collaboration with The Nature Conservancy. The Forest Management Strategy was last revised in May 2005, and is also in the process of being updated (Forest Management Strategy 2005, entire). However, in 2012, JBLM amended their existing INRMP with specific regard to the northern spotted owl by completing an Endangered Species Management Plan (ESMP) that includes guidelines for protecting, maintaining, and enhancing habitat essential to support the northern spotted owl on JBLM. The Service has found, in writing, that the amended INRMP provides a net conservation benefit to the species.
The ESMP identifies management objectives for the conservation of the northern spotted owl. Specifically, the ESMP includes three focus areas for management of northern spotted owl. The long-term objective for the first is development of all four types of owl habitat (nesting, roosting, foraging, and dispersal). The long-term objectives for Focus Areas 2 and 3 are development of owl foraging and dispersal habitat. The primary conservation goals for northern spotted owl habitat on JBLM are to protect and maintain existing northern spotted owl suitable habitat; manipulate unsuitable habitat to suitable habitat; and ensure long-term suitable habitat and monitor northern spotted owl habitat to assure that goals are met and actions are successful. Although northern spotted owls are not currently known to occupy JBLM, it is the only significant Federal ownership in this region of Washington, and it provides the largest contiguous block of forest in this area as well. The potential development of suitable owl habitat at JBLM provides one of the only feasible opportunities for establishing connectivity between owl populations in the Olympic Peninsula and the western Cascades Range. Connectivity allows gene flow between populations, and further maintains northern spotted owl distribution and metapopulation dynamics, which are important components of the recovery strategy for the northern spotted owl (USFWS 2011, p. III-1, III-44). The Forest Management Strategy (2005, p. 82) notes that the mosaic of dry forest, woodland, and prairie at JBLM is very different from typical forest landscapes that support northern spotted owls, and that while suitable habitat for dispersal of northern spotted owls can be achieved in the short term, at least 40 to 50 years may be needed to meet the desired condition for foraging, nesting, and roosting habitat.
Based on the above considerations and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the JBLM INRMP and that
Section 4(b)(2) of the Act states that the Secretary must designate or make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impacts of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in the overall conservation of the northern spotted owl through the continuation, strengthening, or encouragement of partnerships and the implementation of management plans or programs that provide equal or more conservation for the northern spotted owl than could be achieved through a designation of critical habitat. The Secretary can consider the existence of conservation agreements and other land management plans with Federal, State, private, and tribal entities when making decisions under section 4(b)(2) of the Act. The Secretary may also consider relationships with landowners, voluntary partnerships, and conservation plans, and weigh the implementation and effectiveness of these against that of designation to determine which provides the greatest conservation value to the listed species.
Consideration of relevant impacts of designation or exclusion under section 4(b)(2) may include, but is not limited to, any of the following factors: (1) Whether the plan provides specific information on how it protects the species and the physical or biological features, and whether the plan is at a geographical scope commensurate with the species; (2) whether the plan is complete and will be effective at conserving and protecting the physical or biological features; (3) whether a reasonable expectation exists that conservation management strategies and actions will be implemented, that those responsible for implementing the plan are capable of achieving the objectives, that an implementation schedule exists, and that adequate funding exists; (4) whether the plan provides assurances that the conservation strategies and measures will be effective (i.e., identifies biological goals, has provisions for reporting progress, and is of a duration sufficient to implement the plan); (5) whether the plan has a monitoring program or adaptive management to ensure that the conservation measures are effective; (6) the degree to which the record supports a conclusion that a critical habitat designation would impair the benefits of the plan; (7) the extent of public participation; (8) a demonstrated track record of implementation success; (9) the level of public benefits derived from encouraging collaborative efforts and encouraging private and local conservation efforts; and (10) the effect designation would have on partnerships.
After evaluating the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to determine whether the benefits of excluding a particular area outweigh the benefits of its inclusion in critical habitat. If we determine that the benefits of excluding a particular area outweigh the benefits of its inclusion, then the Secretary can exercise his discretion to exclude the area, provided that the exclusion will not result in the extinction of the species.
Under section 4(b)(2) of the Act, we must consider all relevant impacts of the designation of critical habitat, including economic impacts. In addition to economic impacts (discussed in the Economics Analysis section, below), we considered a number of factors in a section 4(b)(2) analysis. We considered whether Federal or private landowners or other public agencies have developed management plans, habitat conservation plans (HCPs) or Safe Harbor Agreements (SHAs) for the area or whether there are conservation partnerships or other conservation benefits that would be encouraged or discouraged by designation of, or exclusion from, critical habitat in an area. We also considered other relevant impacts that might occur because of the designation. To ensure that our final determination is based on the best available information, we also considered comments received on foreseeable economic, national security, or other potential impacts resulting from this designation of critical habitat from governmental, business, or private interests and, in particular, any potential impacts on small businesses.
Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we evaluated whether certain lands in the proposed revised critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. Based on our evaluation, we are excluding approximately 3,879,506 ac (1,567,875 ha) of lands that meet the definition of critical habitat under section 4(b)(2) of the Act from final critical habitat.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis (DEA) of the proposed critical habitat designation and related factors (IEC 2012a). The draft analysis was made available for public review from June 1, 2012, through July 6, 2012 (77 FR 32483). Following the close of the comment period, we developed a final economic analysis (FEA) (IEC 2012b) of the potential economic effects of the designation taking into consideration the public comments and any new information.
The intent of the FEA is to quantify economic impacts that may be directly attributable to the designation of critical habitat—that is, costs above and beyond what are considered “baseline” costs, as described below. The economic impact of the final critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical
The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. Decisionmakers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA considers those costs that may occur in the 20 years following the revised designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to forecast activity levels for projects beyond a 20-year timeframe. The FEA quantifies economic impacts of northern spotted owl conservation efforts associated with timber harvests, wildfire management, barred owl management, road construction, and linear projects (road and bridge construction and maintenance, installation of power transmission lines and utility pipelines), as these are the types of activities we determined were most likely to occur within northern spotted owl habitat.
The results of the FEA concludes that only a portion of the overall proposed revised designation will result in more than incremental, minor administrative costs. Specifically, of the 13,962,449 ac proposed for designation, potential incremental changes in timber harvest practices were anticipated on only 1,449,534 ac (585,612 ha) of USFS and BLM lands, or approximately 10 percent of the proposed designation. In addition, there was potential for the owners of 307,308 ac (123,364 ha) of private land to experience incremental changes in harvests (approximately 2 percent of the proposed designation). No incremental changes in harvests are expected on State lands.
In addition, to address the uncertainty in the types of management and activities that may or may not occur within the proposed critical habitat, the FEA evaluated three scenarios to capture the full range of potential economic impacts of the designation. The first scenario contemplates that minimal or no changes to current timber management practices will occur, thus the incremental costs of the designation would be predominantly administrative. The potential additional administrative costs due to critical habitat designation on Federal lands range from $185,000 to $316,000 on an annualized basis for timber harvest.
The second scenario posits that action agencies may choose to implement management practices that yield an increase in timber harvest relative to the baseline (current realized levels of timber harvest). For this scenario, baseline harvest projections were scaled upward by 10 percent, resulting in a positive impact on Federal lands ranging from $893,000 to $2,870,000 on an annualized basis for timber harvest.
The third scenario considers that actions agencies may choose to be more restrictive in response to critical habitat designation, resulting in a decline in harvest volumes relative to the baseline. To illustrate the potential for this effect, baseline harvest projections were scaled downward by 20 percent, resulting in a negative impact on timber harvest on Federal lands ranging from $2,650,000 to $6,480,000 on an annualized basis.
The USFS and BLM suggested certain alterations to the baseline timber harvest projections, based on differing assumptions regarding northern spotted owl occupancy in matrix lands and projected levels of timber harvest relative to historical yields. The FEA presents the results of a sensitivity analysis considering these alternative assumptions, which widen the range of annualized potential impacts to Federal timber harvest relative to the scenarios described above (IEC 2012b, pp. 4-37 to 4-39). This sensitivity analysis contemplated a situation in which 26.6 percent of northern spotted owl habitat on BLM matrix lands is unoccupied, and a 20 percent increase in baseline timber harvest in USFS Region 6 relative to historical yields. The range of incremental impacts under these alternative assumptions widens to a potential annualized increase of $0.7 million under Scenario 2, and an annualized decrease of $1.4 million under Scenario 3, relative to the results reported above.
Timber harvest was not anticipated to change on State lands in response to critical habitat designation. Timber harvest effects on private lands were highly uncertain, and were only identified qualitatively as potential negative impacts associated with regulatory uncertainty, and possibly (but speculative) new regulation in the State of Washington.
Under all three scenarios, linear projects reflected administrative costs only, ranging from $10,800 to $19,500 on an annualized basis.
Counties receive Federal lands payments from a subset of four programs: The U.S. Forest Service 25% Fund; the BLM O&C lands payments; Payment in Lieu of Taxes (PILT); and Secure Rural Schools and Community Self-determination Act (SRS) (please see FEA pp. 3-19 to 3-21 for a thorough discussion of these programs). Counties have the option of receiving either SRS of 25%/O&C payments, but not both. For reasons unrelated to proposed critical habitat, the future of the PILT and SRS programs is uncertain and depends on forces, including Congressional action, unrelated to critical habitat designation. If funding is not appropriated to PILT, or SRS is not reauthorized, payments from the USFS 25% Fund and the BLM O&C lands become relatively more important. Payments for these latter two programs are based on commercial receipts, main from timber generated on Federal lands; payments from PILT and SRS are not as closely linked to fluctuations in timber sales. In recent years, most counties have opted to receive SRS payments; for example, in FY 2009 all 18 counties in Oregon that contain BLM lands opted to receive SRS payments instead of the LBM O&C lands revenue-sharing payment. Therefore, it is difficult to quantify the effects that future changes in timber harvests from Federal lands resulting from critical habitat designation would have on counties if SRS and PILT payment programs ended and the counties were forced to rely on revenue-sharing payments only. Given the baseline uncertainty associated with the continuance of SRS and PILT payments, we were unable to quantify possible changes in county revenue payments that could result from the critical habitat designation. However, based on recent socioeconomic trends, we were able to identify those counties that may be more sensitive to future changes in timber harvests, industry employment, and Federal land payments. Potential timber harvest changes related to critical habitat designation, whether positive, negative, or neutral, are one potential aspect of
With regard to jobs, increases or decreases in timber harvests from Federal or private lands could result in positive or negative changes in jobs, respectively. The FEA notes that many factors affect timber industry employment (Chapter 6). The scope of our analysis was limited to the incremental effects of critical habitat within the area proposed for designation by the northern spotted owl. The FEA did not consider potential changes in timber activities outside the proposed critical habitat designation, and did not evaluate the potential effects related to the timber industry as a whole.
Based on our economic analysis of the potential effects of the proposed revised designation of critical habitat for the northern spotted owl, there is a range of potential outcomes, ranging from positive to negative impacts of the designation. Most potential economic impacts would occur, if at all, on Federal matrix lands managed by BLM and the Forest Service, although we note that the amount of Federal matrix lands has been reduced from the proposed rule, as described in Changes from the Proposed Rule, which would have the effect of reducing the range of potential economic impacts presented by the FEA. While there is uncertainty over whether such impacts will occur and to what extent, even assuming higher economic impacts suggested by some commenters, we would not exclude these lands from designation under section 4(b)(2) because a critical habitat designation on these lands will have benefits in conserving this essential habitat. In addition, our evaluation of these matrix lands clearly demonstrates their importance to the conservation of the northern spotted owl; as also discussed in the section Changes from the Proposed Rule, our evaluation of a habitat network with reduced areas of high value habitat on matrix lands indicated a significant increase in extinction risk to the species as a result.
A copy of the FEA with supporting documents may be obtained by contacting the Oregon Fish and Wildlife Office (see
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense (DOD) where a national security impact might exist. In preparing this final rule, we have determined that the only lands within the proposed revised designation of critical habitat for the northern spotted owl that are owned or managed by the Department of Defense have an active INRMP which provides a benefit to the species, and are thus exempt from critical habitat designation under section 4(a)(3) of the Act (see Exemptions, above). We therefore anticipate no impact on national security from this designation. Consequently, the Secretary is not exercising his discretion to exclude any additional areas from this final revised designation based on impacts to national security.
Under section 4(b)(2) of the Act, we consider all relevant impacts, including but not limited to economic impacts and impacts on national security. We consider a number of factors including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.
Here we provide our analysis of areas that were proposed as revised designation of critical habitat for the northern spotted owl, for which there may be a greater conservation benefit to exclude rather than include in the designation. Our weighing of the benefits of inclusion versus exclusion considered all relevant factors in order to make our final determination as to what will result in the greatest conservation benefit to the owl. Depending on the specifics of each situation, there may be cases where the designation of critical habitat will not necessarily provide enhanced protection, and may actually lead to a net loss of conservation benefit.
The process of designating critical habitat as described in the Act requires that the Service identify those lands within the geographical area occupied by the species at the time of listing on which are found the physical or biological features essential to the conservation of the species that may require special management considerations or protection, and those areas outside the geographical area occupied by the species at the time of listing that are essential for the conservation of the species.
The identification of areas that contain the features essential to the conservation of the species, or are otherwise essential for the conservation of the species if outside the geographical area occupied by the species at the time of listing, is a benefit resulting from the designation. The critical habitat designation process includes peer review and public comment on the identified physical or biological features and areas, and provides a mechanism to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by clearly delineating areas of high conservation value for the species, and is valuable to land owners and managers in developing conservation management plans by describing the essential physical or biological features and special management actions or protections that are needed for identified areas. Including lands in critical habitat also informs State agencies and local governments about areas that could be conserved under State laws or local ordinances.
However, the prohibition on destruction or adverse modification under section 7(a)(2) of the Act constitutes the only Federal regulatory benefit of critical habitat designation. As discussed above, Federal agencies must consult with the Service on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. Federal agencies must also consult with us on actions that may affect a listed species and refrain from undertaking actions that are likely to jeopardize the continued existence of such species. The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses also represents the regulatory benefit of critical habitat. For some species, and in some locations, the outcome of these analyses will be similar because effects on habitat will often result in effects on the species. However, these two regulatory standards are different. The jeopardy analysis evaluates how a proposed action is likely to influence the likelihood of a species' survival and recovery. The adverse modification analysis evaluates how an action affects the capability of the critical habitat to serve its intended conservation function or purpose (USFWS, in litt. 2004). Although these standards are different,
There are two limitations to the regulatory effect of critical habitat. First, a section 7(a)(2) consultation is required only where there is a Federal nexus (an action authorized, funded, or carried out by any Federal agency)—if there is no Federal nexus, the critical habitat designation of non-Federal lands itself does not restrict any actions that destroy or adversely modify critical habitat. Aside from the requirement that Federal agencies ensure that their actions are not likely to result in destruction or adverse modification of critical habitat under section 7, the Act does not provide any additional regulatory protection to lands designated as critical habitat.
Second, designating critical habitat does not create a management plan for the areas; does not establish numerical population goals or prescribe specific management actions (inside or outside of critical habitat); and does not have a direct effect on areas not designated as critical habitat. The designation only limits destruction or adverse modification of critical habitat, not all adverse effects. By its nature, the prohibition on adverse modification ensures that the conservation role and function of the critical habitat network is not appreciably reduced as a result of a Federal action.
Once an agency determines that consultation under section 7(a)(2) of the Act is necessary, the process may conclude informally when the Service concurs in writing that the proposed Federal action is not likely to adversely affect the species or critical habitat. However, if we determine through informal consultation that adverse impacts are likely to occur, then formal consultation is initiated. Formal consultation concludes with a biological opinion issued by the Service on whether the proposed Federal action is likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat.
For critical habitat, a biological opinion that concludes in a determination of no destruction or adverse modification may recommend additional conservation measures to minimize adverse effects to primary constituent elements, but such measures would be discretionary on the part of the Federal agency.
The designation of critical habitat does not require that any management or recovery actions take place on the lands included in the designation. Even in cases where consultation has been initiated under section 7(a)(2) of the Act because of effects to critical habitat, the end result of consultation is to avoid adverse modification, but not necessarily to manage critical habitat or institute recovery actions on critical habitat. On the other hand, voluntary conservation efforts by landowners can remove or reduce known threats to a species or its habitat by implementing recovery actions. We find that in many instances the regulatory benefit of critical habitat is minimal when compared to the conservation benefit that can be achieved through implementing HCPs under section 10 of the Act, or other voluntary conservation efforts or management plans. The conservation achieved through implementing HCPs, or other habitat management plans can be greater than what we achieve through multiple site-by-site, project-by-project section 7(a)(2) consultations involving project effects to critical habitat. Management plans can commit resources to implement long-term management and protection to particular habitat for at least one and possibly other listed or sensitive species. Section 7(a)(2) consultations commit Federal agencies to preventing adverse modification of critical habitat caused by the particular project; consultation does not require Federal agencies to provide for conservation or long-term benefits to areas not affected by the proposed project. Thus, implementation of any HCP, or management plan that incorporates enhancement or recovery as the management standard may often provide as much or more benefit than a consultation for critical habitat designation. After reviewing all current HCPs, SHAs, and any other active management plans or conservation agreements, and weighing the benefits of inclusion and exclusion (see below), we are excluding all State and private lands covered by such agreements from the final critical habitat designation.
We are also excluding under section 4(b)(2) congressionally-reserved natural areas such as national parks and wilderness areas, State parks, and other private lands that had been proposed for designation, for the reasons discussed below. These analyses are based in large part on the particular conservation requirements of the northern spotted owl or the State laws aimed at protecting this species, and are specific to this designation. Thus, our determination that the benefits of exclusion outweigh the benefits of inclusion in these cases, as well as the decision to exclude in these instances, do not necessarily have a bearing on any future critical habitat designations.
Table 8 identifies all lands excluded from the final rule.
A Safe Harbor Agreement (SHA) is a voluntary agreement involving private or other non-Federal property owners whose actions contribute to the recovery of listed species. The agreement is between cooperating non-Federal property owners and the Service. In exchange for actions that contribute to the recovery of listed species on non-Federal lands, participating property owners receive formal assurances from the Service that, if they fulfill the conditions of the SHA, the Service will not require any additional or different management activities by the participants without their consent. In addition, at the end of the agreement period, participants may return the enrolled property to the baseline conditions that existed at the beginning of the SHA.
Because many endangered and threatened species occur exclusively, or to a large extent, on privately owned property, the involvement of the private sector in the conservation and recovery of species is crucial. Property owners are often willing partners in efforts to recover listed species. However, some property owners may be reluctant to undertake activities that support or attract listed species on their properties, due to fear of future property-use restrictions related to the Act. To address this concern, an SHA provides that future property-use limitations will not occur without the landowner's consent if the landowner is in compliance with the permit and agreement and the activity is not likely to result in jeopardy to the listed species.
Central to this approach is that the actions taken under the SHA must provide a net conservation benefit that contributes to the recovery of the covered species. Examples of conservation benefits include:
• Reduced habitat fragmentation;
• Maintenance, restoration, or enhancement of existing habitats;
• Increases in habitat connectivity;
• Stabilized or increased numbers or distribution;
• The creation of buffers for protected areas; and
• Opportunities to test and develop new habitat management techniques.
By entering into a SHA, property owners receive assurances that land use restrictions will not be required even if the voluntary actions taken under the agreement attract particular listed species onto enrolled properties or increase the numbers of distribution of those listed species already present on those properties. The assurances are provided through an enhancement of survival permit issued to the property owner, under the authority of section 10(a)(1)(A) of the Act. To implement this provision of the Act, the Service and National Marine Fisheries Service (NMFS) issued a joint policy for developing SHAs for listed species on June 17, 1999 (64 FR 32717). The Service simultaneously issued regulations for implementing SHAs on June 17, 1999 (64 FR 32706). A correction to the final rule was announced on September 30, 1999 (64 FR 52676). The enhancement of survival permit issued in association with an SHA authorizes incidental take of species that may result from actions undertaken by the landowner under the SHA, which could include returning the property to the baseline conditions at the end of the agreement. The permit also specifies that the Service will not require any additional or different management activities by participants without their consent if the permittee is in compliance with the requirements of the permit and the SHA and the permittee's actions are not likely to result in jeopardy.
The benefits of excluding lands with approved SHAs from critical habitat designation may include relieving landowners, communities, and counties of any additional regulatory burden that might be imposed as a result of the critical habitat designation. Even if any additional regulatory burden would be unlikely due to a lack of a Federal nexus, the designation of critical habitat could nonetheless have an unintended negative effect on our relationship with non-Federal landowners, due to the perceived imposition of government regulation. An additional benefit of excluding lands covered by approved SHAs from critical habitat designation is that it may make it easier for us to seek new partnerships with future SHA participants, including States, counties,
In weighing the benefits of inclusion versus the benefits of exclusion for lands subject to approved SHAs, it is important to note that a fundamental requirement of an SHA is an advance determination by the Service that the provisions of the SHA will result in a net conservation benefit to the listed species. Approved SHAs have, therefore, already been determined to provide a net conservation benefit to the listed species; in addition, the management activities provided in an SHA often provide conservation benefits to unlisted sensitive species as well. As described earlier, the designation of critical habitat may not provide any substantial realized conservation benefit to the species on non-Federal lands absent a Federal nexus for an activity. Especially where further Federal action is unlikely, the net conservation benefit provided by the terms of the SHA itself, considered in conjunction with the benefit of excluding lands subject to an SHA by preserving our working relationships with landowners who have entered into SHAs with the Service, and the benefit of laying the positive groundwork for possible future agreements with other landowners, may collectively outweigh the potentially limited benefit that would be realized on these lands from the designation of critical habitat. However, as with all potential exclusions under consideration, lands subject to an SHA will only be excluded if we determine that the benefits of exclusion outweigh the benefits of inclusion following a rigorous examination of the record on a case-by-case basis.
We note that permit issuance in association with SHA applications requires consultation under section 7(a)(2) of the Act, which would include the review of the effects of all SHA-covered activities that might adversely impact the species under a jeopardy standard, including possibly significant habitat modification (see definition of “harm” at 50 CFR 17.3), even without the critical habitat designation. In addition, all other Federal actions that may affect the listed species would still require consultation under section 7(a)(2) of the Act, and we would review these actions for possible significant habitat modification in accordance with the definition of harm, described in the
We further note that SHAs may include a provision that the landowner may return the area to baseline conditions upon expiration of the permit. The term of the permit is thus an important consideration in weighing the relative benefits of inclusion versus exclusion from the designation of critical habitat. However, the Service has the right to revise a critical habitat designation at any time. Furthermore, the potential benefit of acknowledging the positive conservation contributions of landowners willing to enter into voluntary conservation agreements with the Service for the recovery of endangered or threatened species may nonetheless outweigh the loss of benefit that may be incurred through a possible return to baseline following permit expiration. As stated above, such circumstances require careful consideration on a case-by-case basis in order to make a final determination of the benefits of exclusion or inclusion in a critical habitat designation.
Below is a description of each SHA and our analysis of the benefits of including and excluding it from the critical habitat designation under section 4(b)(2) of the Act.
In this final designation, the Secretary has exercised his authority to exclude 238 ac (96 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are covered by the Safe Harbor Agreement (SHA) of Forster-Gill, Inc., within subunit 1 of the Redwood Coast CHU in Humboldt County, California. The enhancement of survival permit associated with this SHA was noticed in the
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. However, in this case the landowners are aware of the needs of the species through the development of their SHA, in which they have agreed to take measures to protect the northern spotted owl on their property and create and enhance suitable habitat for the species as well. Any additional educational and information benefits that might arise from critical habitat designation have been largely accomplished through the public review of and comment on the SHA and the associated permit. The release of the Revised Recovery Plan for the Northern Spotted Owl in 2011 was also preceded by outreach efforts and public comment opportunities. In addition, the rulemaking process associated with critical habitat designation included several opportunities for public comment, and we also held multiple public information meetings across the range of the species. Through these outreach opportunities, land owners, State agencies, and local governments have become aware of the current status of and threats to the northern spotted owl, and the conservation actions needed for recovery.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, CALFIRE has indicated to us that it is unlikely to impose any new requirements on project proponents if critical habitat is designated in areas already subject to California Forest Practice Rules. Therefore, we believe this potential benefit of critical will be limited.
The conservation measures identified within the SHA seek to achieve conservation goals for northern spotted owls and their habitat, and thus can be of greater conservation benefit than the designation of critical habitat, which does not require specific, proactive management actions. If there is a Federal nexus, consultation under critical habitat requires only that the action agency avoid actions that destroy or adversely modify critical habitat. In contrast, SHA conservation measures that provide a benefit to the northern spotted owl and its habitat have been, and will be, implemented continuously beginning with the enactment of the SHA in 2002 through the 80-year term of the ITP, through 2082, on all covered lands owned and managed by Forster-Gill, Inc. The key conservation measure is a provision that will lead to an approximate doubling of mean tree diameter from roughly 12 to 24 in (30 to 60 cm) on covered lands over the life of the permit, leading to enhancement of habitat suitability.
The designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of redundant government regulation. If lands within the Forster-Gill SHA are designated as critical habitat, it would likely have a chilling effect on our continued ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement various conservation actions (such as SHAs, HCPs, and other conservation plans, particularly large, regional Conservation Plans that involve numerous participants and/or address landscape-level conservation of species and habitats) that we would be unable to accomplish otherwise.
Excluding the approximately 238 ac (96 ha) owned and managed by Forster-Gill, Inc. from critical habitat designation will sustain and enhance the working relationship between the Service and this private lands partner. The willingness of Forster-Gill to work with the Service to manage federally listed species will continue to reinforce those conservation efforts and our partnership, which contribute toward achieving recovery of the northern spotted owl. We consider this voluntary partnership in conservation vital to our understanding of the status of species on non-Federal lands and necessary to implement recovery actions such as habitat protection and restoration, and beneficial management actions for species. By excluding these lands, we preserve our current conservation partnership with Forster-Gill and encourage additional conservation actions by this partner, and potentially others as well, in the future. We consider the positive effect of excluding proven conservation partners from critical habitat to be a significant benefit of exclusion.
Educational benefits are also limited. The landowner is already aware of the conservation needs of the species through development of the SHA. Because there is no public access to the land, we are not aware of any public constituency connected with this ownership which would derive informational benefits from the designation of critical habitat. However, as noted, we have conducted extensive outreach efforts, both in relation to the SHA and its associated permit, as well as our proposed critical habitat, which have provided opportunity for public education and comment on critical habitat for the northern spotted owl. As such, much of the potential educational benefit of critical habitat on these lands has already been accomplished.
On the other hand, the SHA has provisions for protecting and maintaining northern spotted owl habitat that far exceed the conservation benefits that could be obtained through section 7 consultation. These measures will not only prevent the degradation of essential features of the northern spotted owl, but they will maintain or improve these features over time. Furthermore, landowners always have the option not to return to baseline after the term of the SHA is over. Exclusion of these lands from critical habitat will help foster the partnership we have developed with Forster-Gill through the development and continuing implementation of the SHA, and may encourage the landowner to continue these cooperative efforts even after the term of the SHA. In addition, this partnership may serve as a model and aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species. For these reasons, we have determined that the benefits of exclusion of lands covered by the Forster-Gill, Inc. SHA outweigh the benefits of critical habitat designation.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, that are covered by the SHA between the Fred M. Van Eck Forest Foundation and the Service within subunit 1 of the Redwood Coast CHU in California. These lands are also protected under a conservation easement held by the Pacific Forest Trust. The enhancement of survival permit associated with this SHA was noticed in the
Under the SHA, the Fred M. van Eck Forest Foundation agrees to: (1) Conduct surveys annually to determine the locations and reproductive status of any northern spotted owls; (2) protect up to five activity centers with a no-harvest area that buffers the activity center by no less than 100 ft (30 m); (3) utilize selective timber harvest methods such that suitable nesting habitat is maintained within 300 ft (91 m) of each activity center; (4) limit noise disturbance from timber harvest operations within 1,000 ft (305 m) of an active nest during the breeding season; and (5) manage all second-growth redwood timber on the property in a manner that maintains or creates suitable nesting and roosting habitat over time. The term of the SHA and ITP is 90 years; there is no term limitation on the easement deed held by the Pacific Forest Trust. Specific long-term management targets for second-growth timber are enumerated in the easement deed. All are expressed as propertywide averages; for example, a stocking target of 100,000 board feet (bf) per acre, 75 percent minimum conifer occupancy, 25 percent of standing inventory made up of trees greater than 200 years of age, 15 dominant conifers per acre 36-inches DBH or greater, 4 standing snags per acre 30-inches DBH or greater, 1,600 cubic feet per acre of dead and down logs. The cumulative impact of the SHA and the easement, is expected to provide a substantial net benefit to the northern spotted owl.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. The landowners in this case are aware of the needs of the species through the development of their SHA, in which they have agreed to take measures to protect the northern spotted owl on their property and create and enhance suitable habitat for the species as well. Any additional educational and information benefits that might arise from critical habitat designation have been largely accomplished through the public review of and comment on the SHA and the associated permit. The release of the Revised Recovery Plan for the Northern Spotted Owl in 2011 was also preceded by outreach efforts and public comment opportunities. In addition, the rulemaking process associated with critical habitat designation included several opportunities for public comment, and we also held multiple public information meetings across the range of the species. Through these outreach opportunities, land owners, State agencies, and local governments have become aware of the current status of and threats to the northern spotted owl, and the conservation actions needed for recovery.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, CALFIRE has indicated to us that it is unlikely to impose any new requirements on project proponents if critical habitat is designated in areas already subject to California Forest Practice Rules. Therefore, we believe this potential benefit of critical will be limited.
The SHA conservation measures that provide a benefit to the northern spotted owl and its habitat have been, and will be, implemented continuously beginning with the enactment of the SHA in 2008 through the 90-year term of the ITP, through 2088, on all covered lands owned and managed by the Van Eck Forest Foundation. Such measures include the examples we identified above: A volume-based mean stocking target, mean conifer occupancy, mean percentages of standing inventory in older age classes, mean size and density of dominant conifers, mean size and density of standing snags, and mean volume of dead and down logs. The measures provided in the SHA are aimed at the maintenance and enhancement of suitable nesting and roosting habitat over time to benefit the northern spotted owl.
The designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of redundant government regulation. If lands within the Van Eck Forest Foundation SHA are designated as critical habitat, it would likely have a chilling effect on our continued ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement various conservation actions (such as SHAs, HCPs, and other conservation plans) that we would be unable to accomplish otherwise. Excluding the approximately 2,774 ac (1,122 ha) owned and managed by the Van Eck Forest Foundation from critical habitat designation will sustain and enhance this working relationship between the Service and the Foundation. The willingness of the Foundation to work with us to manage federally listed species will continue to reinforce those conservation efforts and our partnership, which contribute toward achieving recovery of the northern spotted owl. We consider this voluntary partnership in conservation vital to our understanding of the status of species on non-Federal lands and necessary for us to implement recovery actions, such as habitat protection and restoration, and beneficial management actions for species. Further, this partnership may aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species. We consider the positive effect of excluding proven conservation partners from critical habitat to be a significant benefit of exclusion.
Educational benefits are also limited. The landowner is already aware of the conservation needs of the species through development of the SHA. Because the Van Eck lands, for the most part, are not open to the general public, there is no public constituency that would derive informational benefits from the designation of critical habitat. However, as noted, we have conducted extensive outreach efforts, both in relation to the SHA and its associated permit, as well as our proposed revision of critical habitat, which have provided opportunity for public education and comment on critical habitat for the northern spotted owl. As such, much of the potential educational benefit of critical habitat on these lands has already been accomplished.
On the other hand, the conservation measures identified within the SHA seek to achieve conservation goals for northern spotted owls and their habitat, and thus can be of greater conservation benefit than the designation of critical habitat, which does not require specific, proactive actions. Thus, the implementation of the SHA provides a substantially greater benefit to the northern spotted owl than would be obtained through section 7 consultation. The measures provided in the SHA will not only prevent the degradation of essential features for the northern spotted owl, but they are designed to maintain or enhance these features over time. Furthermore, landowners always have the option not to return to baseline after the term of the SHA is over. Exclusion of these lands from critical habitat will help foster the partnership we have developed with the Van Eck Forest Foundation through the development and continuing implementation of the SHA and may encourage the landowner to continue these cooperative efforts even after the term of the SHA. In addition, this partnership may serve as a model and aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species. For these reasons we have determined that the benefits of exclusion of lands covered by the Van Eck Forest Foundation SHA outweigh the benefits of critical habitat designation.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, totaling approximately 195 ac (79 ha) that are covered under the Port Blakely Tree Farms (also known as Morton Block) SHA in the West Cascades Central CHU in Washington. The enhancement of survival permit associated with this SHA was noticed in the
The covered lands have been intensively managed for timber production and at the time the permit was issued were not known to be occupied by northern spotted owls. The environmental baseline was measured in terms of dispersal habitat. There are no known northern spotted owls nesting on Port Blakely lands. However, northern spotted owls have historically nested on adjacent Federal lands and the 1.82-mile (2.9-km) radius circles around those sites that are used for evaluating potential habitat availability for northern spotted owls extend onto Port Blakely lands. Because of this, Port Blakely Tree Farms conducted habitat evaluations of their properties to determine the amount of suitable northern spotted owl habitat present. The baseline estimate to be provided by the SHA is 8,360 ac (3,383 ha) of northern spotted owl dispersal habitat.
Under the SHA, Port Blakely is implementing conservation measures that are expected to provide net conservation benefits to the northern spotted owl and marbled murrelet. The SHA also provides that Port Blakely will manage their tree farm in a manner that contributes to the goals of the Mineral Block Northern Spotted Owl Special Emphasis Area (SOSEA) according to Washington Forest Practices Rules and Regulations (Washington Forest Practices Board 2002, WAC 222-16-080, WAC 222-16- 086). This area is intended to facilitate dispersal of juvenile northern spotted owls, as well as provide demographic support to core northern spotted owl populations.
Under the SHA, Port Blakely is implementing enhanced forest-management measures that would create potential habitat for the northern spotted owl and marbled murrelet, such as longer harvest rotations, additional thinning to accelerate forest growth, a snag-creation program, retention of more fallen wood than is required by Washington Forest Practices Rules, establishment of special management areas and special set-aside areas, and monitoring. The terms of the agreement are intended to produce conditions that will facilitate the dispersal of the northern spotted owl across the Port Blakely ownership.
At present, there are no known nesting sites for owls in the covered area. However, portions of the covered area are within owl management circles associated with site centers on adjacent ownerships. The majority of the stand-management units are composed of 20- to 60-year-old timber. There are no stands that would provide nesting opportunities for owls in the covered area, and very little young forest marginal habitat is present in the areas of the Morton Block with the potential for utilization by owls that may occur on adjacent ownerships. The young forest marginal habitat known to exist on Port Blakely's ownership is within circles that have greater than 40 percent suitable habitat and, thus, may be
The SHA landscape-management approach contributes to owl recovery by complementing the existing owl landscape-management strategies on adjacent Federal and State forestlands. The SHA goals and objectives for the northern spotted owl are to provide demographic interchange through dispersal and foraging habitat across their ownership on a dynamic basis, as well as higher-quality habitat in harvest set-asides. These habitats provide for both dispersal and demographic interchange. SOSEA goals are identified in the Washington State Forest Practices Rules and shown on the SOSEA maps (see WAC 222-16-086). SOSEA goals provide for demographic and dispersal support as necessary to complement the northern spotted owl protection strategies on Federal lands within or adjacent to the SOSEA (WAC 222-16-010).
Port Blakely will achieve these goals and objectives both in the near term and over the term of the SHA by immediately protecting special management areas and special set-aside areas of northern spotted owl habitat, and managing commercial forested lands in the plan area on an average rotation length of 60 years. In addition, the SHA provides silvicultural measures to benefit the northern spotted owl, including a thinning program and a snag-retention and creation program.
Port Blakely has agreed to collaborate with State and Federal biologists in research efforts to better understand how their management will influence dispersal habitat conditions in the plan area. Port Blakely is working cooperatively with the Service, WDFW, WDNR, and other entities that have expertise, in designing a statistically robust snag-monitoring study. Port Blakely will also map all leave tree areas, and mark a sample of snag and defective trees for use in snag-monitoring studies. The SHA acknowledges uncertainty in some aspects of anticipated results. Areas of uncertainty include the likelihood that green retention trees will become snags during the period between commercial thinning and future entries, as well as the recruitment success and persistence of snags. Port Blakely has committed to work collaboratively with agencies in these matters. The SHA also contains monitoring and reporting requirements.
We find that the conservation achieved through implementing these types of agreements is typically greater than would be achieved through multiple site-by-site, project-by-project, section 7 consultations involving consideration of critical habitat. In addition, it is unlikely that Federal projects would be proposed on these relatively remote forest lands unless it was a linear project such as a powerline, pipeline, or transportation project. Due to the scope of such projects, they would likely already have a Federal nexus regardless whether these lands are designated as critical habitat. While the SHA lands may not have nesting sites on them at this time, degradation of the habitats on the SHA or adjacent lands could be considered an adverse effect to the species. Because one of the primary threats to the northern spotted owl is habitat loss and degradation, the consultation process under section 7 of the Act for projects with a Federal nexus likely would, in evaluating effects to the northern spotted owl, evaluate the effects of the action on the conservation or functionality of the habitat for the species, regardless of whether critical habitat is designated for these lands. The analytical requirements to support a jeopardy determination on excluded land are similar, but not identical, to the requirements in an analysis for an adverse modification determination on land designated as critical habitat. However, the amount of conservation that could be attained through the addition of a critical habitat analysis to the section 7 consultation would be relatively low in comparison to the conservation provided by the SHA. The additional benefits of inclusion on the section 7 process are therefore relatively small.
The benefits of inclusion are further minimized because, as mentioned above, the Port Blakely SHA provides for the needs of the northern spotted owl by protecting and preserving landscape levels of suitable northern spotted owl nesting, roosting, and foraging habitat, as well as foraging and dispersal habitat over the term of the SHA in strategic landscapes, and implementing species-specific conservation measures designed to avoid and minimize effects to northern spotted owls. A fundamental requirement of an SHA is a determination by the Service that the provisions of the SHA will result in a net conservation benefit to the listed species. Approved SHAs have, therefore, already been determined to provide a net conservation benefit to the listed species. In addition, monitoring will track SHA progress over the term of the permit and provide feedback on management actions. Therefore, designation of critical habitat would be redundant on these lands, and would not provide additional measureable protections.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Designation of critical habitat could inform State agencies and local governments about areas that could be conserved under State laws or local ordinances, such as the Washington State Growth Management Act, which encourage the protection of “critical areas” including fish and wildlife habitat conservation areas. However, not
Thus, we find that there is minimal benefit from designating critical habitat for the northern spotted owl within the Port Blakely SHA.
Excluding lands with SHAs from critical habitat designation may also enhance our ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within the plan area are designated as critical habitat, it could have a negative effect on our ability to work with various companies to accomplish our goals for the SHA program and recovery of the northern spotted owl. This SHA is located in a key landscape between the Mineral Block and other Federal lands, and represents a unique opportunity to maintain northern spotted owls at the western extreme of the Cascades, which may support dispersal between the Cascades and Olympics. This SHA contributes meaningfully to the recovery of the northern spotted owl and serves as an example to other industrial companies. This SHA was the first to combine a Federal SHA effort with similar planning processes under State jurisdiction and serves as a role model in combining SHA planning with State processes. By excluding these lands, we preserve our current private and local conservation partnerships and encourage additional conservation actions in the future.
Therefore, in consideration of the factors discussed above in the Benefits of Exclusion section, including the relevant impact to current and future partnerships, we have determined that the benefits of exclusion of lands covered by the Port Blakely SHA outweigh the benefits of critical habitat designation.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, lands totaling about 2,035 ac (824 ha) that are covered under the SDS Lumber Company LLC and its registered business name Stevenson Land Company (together SDS) and Broughton Lumber Company (in total are related companies and are herein known as “the Companies”) SHA, in Washington and Oregon. (Note the proposed rule contained an error, in which we mistakenly identified approximately 16,031 ac (6,487 ha) of SDS and Broughton lands for potential exclusion). The enhancement of survival permits associated with this SHA were noticed in the
The Companies' landscape management approach contributes to owl recovery by complementing the existing owl landscape-management strategies on adjacent Federal and State forestlands. The Companies' SHA goals and objectives for the northern spotted owl are to provide dispersal and young forest marginal habitat across their
The Companies will achieve these goals and objectives both in the near term and over the term of the SHA by immediately protecting special set-aside areas of northern spotted owl habitat and managing commercial forested lands in the plan area on an average rotation length of 60 years. In addition, the SHA provides silvicultural measures to benefit the northern spotted owl, including a snag-retention and creation program.
The SHA includes an elevated baseline, provisions for a 240-acre nesting set-aside and a 411-acre reserve in the White Salmon SOSEA, a 10-year deferral of harvest of any habitat in the 0.7-mile circle of the four site centers in which the Companies' covered lands comprise greater than 15 percent, future nest site protection, and the support and enhancement of existing conservation agreements. The SHA will include a monitoring and reporting schedule to ensure that the anticipated benefits will accrue both in the near term and over the term of the SHA.
The benefits of inclusion are further minimized because this SHA provides for the needs of the northern spotted owl by protecting and preserving landscape levels of suitable northern spotted owl nesting, roosting, and foraging habitat, as well as foraging and dispersal habitat over the term of the SHA in strategic landscapes, and implementing species-specific conservation measures designed to avoid and minimize effects to northern spotted owls. A fundamental requirement of an SHA is a determination by the Service that the provisions of the SHA will result in a net conservation benefit to the listed species. Approved SHAs have, therefore, already been determined to provide a net conservation benefit to the listed species. In addition, funding for management is ensured through the Implementation Agreement. Such assurances are typically not provided by section 7 consultations, which in contrast to SHAs, do not commit the project proponent to long-term, special management practices or protections. In addition, monitoring will track SHA progress over the term of the permit and provide feedback on management actions. Therefore, designation of critical habitat would be redundant on these lands, and would not provide additional measureable protections.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Designation of critical habitat could inform State agencies and local governments about areas that could be conserved under State laws or local ordinances, such as the Washington State Growth Management Act, which encourage the protection of “critical areas” including fish and wildlife habitat conservation areas. However, not only has the public process for this rulemaking provided information to the landowner, State agencies and local governments and the public about the importance of this area, but the process for approving a SHA, which also requires public notice and comment, has served this educational function too. Through these opportunities, land owners, State agencies, and local governments have become more aware of the status of and threats to listed species, and the conservation actions needed for recovery particularly as it relates to this property. For these reasons, we believe that the educational benefits that might accrue from critical habitat designation would be minimal.
Therefore, we find that there is minimal benefit from designating critical habitat for the northern spotted owl within this SHA.
Excluding lands with SHAs from critical habitat designation may also enhance our ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within the plan area are designated as critical habitat, it could have a negative effect on our ability to work with various companies to accomplish our goals for the SHA program and recovery of the northern spotted owl. This SHA is located in key northern spotted owl landscapes and contributes meaningfully to the recovery of the northern spotted owl. Two SOSEAs, the White Salmon and Columbia Gorge SOSEAs, encompass approximately 54 percent of the Companies' lands in Skamania and Klickitat Counties. The Companies' landscape-management approach contributes to northern spotted owl recovery by complementing the existing northern spotted owl landscape-management strategies on adjacent Federal and State forestlands. With the Companies' participation in northern spotted owl conservation, it will be the first time in these SOSEAs, that a private landowner has joined State and Federal land managers to
The designation of critical habitat could nonetheless have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of redundant government regulation. If lands within the SDS SHA plan area are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop SHAs, HCPs, and other conservation plans, particularly plans that address landscape-level conservation of species and habitats. This SHA is being observed by other land and timber companies in Washington and Oregon and may serve as a model for ongoing and future efforts. By excluding these lands, we preserve our current private and local conservation partnerships and encourage additional conservation actions in the future.
Therefore, in consideration of the factors discussed above in the Benefits of Exclusion section, including the relevant impact to current and future partnerships, we have determined that the benefits of exclusion of lands covered by the Port Blakely SHA outweigh the benefits of critical habitat designation.
The consultation provisions under section 7(a)(2) of the Act constitute a regulatory benefit of critical habitat. Federal agencies must consult with us on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. In areas without designated critical habitat, Federal agencies consult with us on actions that may affect a listed species and must refrain from undertaking actions that are likely to jeopardize the continued existence of the species. Thus, the analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. The difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. For some species, and in some locations, the outcome of these analyses will be similar, because effects on habitat will often result in effects on the species. However, the regulatory standard is different: The jeopardy analysis looks at the action's impact on survival and recovery of the species, while the adverse modification analysis looks at the action's effects on the designated habitat's contribution to the species' conservation. This will, in some instances, lead to different results or consultation where it might not have otherwise occurred (e.g. in habitat not currently occupied by the species).
Once an agency determines that consultation under section 7 of the Act is necessary, the process may conclude informally when we concur in writing that the proposed Federal action is not likely to adversely affect critical habitat. However, if the action agency determines through informal consultation that adverse effects are likely to occur, then it would initiate formal consultation, which would conclude when we issue a biological opinion on whether the proposed Federal action is likely to result in destruction or adverse modification of critical habitat. A biological opinion that concludes in a determination of no destruction or adverse modification may contain discretionary conservation recommendations to minimize adverse effects to critical habitat, but it would not contain any mandatory reasonable and prudent measures or terms and conditions because these do not apply to critical habitat. In addition, we suggest reasonable and prudent alternatives to the proposed Federal action only when our biological opinion finds that the action may destroy or adversely modify critical habitat.
The process of designating critical habitat as described in the Act requires, in part, that the Service identify those lands occupied at the time of listing on which are found the physical or biological features essential to the conservation of the species, which may require special management considerations or protection and any unoccupied lands that are essential to the conservation of the species. In identifying those lands, the Service must consider the recovery needs of the species. Once critical habitat has been designated, Federal agencies must consult with the Service under section 7(a)(2) of the Act on their actions that may adversely affect the species or critical habitat to ensure that their actions are not likely to adversely
We find that in some cases, the conservation benefits to a species and its habitat that may be achieved through the designation of critical habitat are less than those that could be achieved through the implementation of a habitat conservation management plan that includes specific provisions based on enhancement or recovery as the management standard. Consequently, the implementation of any HCP or management plan that considers enhancement or recovery as the management standard will often provide as much or more benefit than a section 7(a)(2) consultation under the Act. There may be some regulatory benefit that results from designating critical habitat in the areas covered by the HCPs because of section 7 consultation requirements; however, they are often minimal compared to the benefits of exclusion.
Non-Federal landowners are often motivated to work with the Service collaboratively to develop HCPs because of the regulatory certainty provided by an incidental take permit under section 10(a)(1)(B) of the Act, including assurances under the No Surprises Policy (63 FR 8859; February 23, 1998). The No Surprises Policy sets forth a clear commitment to incidental take permittees that, to the extent consistent with the Act and other Federal laws, the government will not seek additional mitigation under an approved HCP where the permittee is implementing the HCP's terms and conditions. Although the HCP process can be complex and time-consuming, the benefit to landowners in undertaking this extensive process is not only incidental take authorization but the resulting regulatory certainty, which translates into real savings for private landowners in terms of opportunity costs, as well as direct savings and avoided costs. Designation of critical habitat within the boundaries of already approved HCPs may be viewed as a disincentive by other entities currently developing HCPs or contemplating them in the future, because it may be perceived as imposing duplicative regulatory burdens. In discussions with the Service, HCP permittees have indicated they view critical habitat designation as an unnecessary additional intrusion on their property, and have expressed concern that the Service may request new conservation measures for the northern spotted owl, even though they have an existing HCP and associated incidental take permit that has already gone through NEPA and the section 7 consultation process already in place.
Although parties whose actions may take listed species may still desire incidental take permits to avoid liability under section 9 of the Act, failure to exclude HCP lands from critical habitat could reduce the conservation value of the HCP program in several ways. First, parties may be less willing to seek a section 10 (a)(2) permit and develop an HCP where they are not certain their actions will cause incidental take in order to avoid involving the Federal government when that involvement could lead to future section 7 consultations because of critical habitat designation. Second, in any given HCP, applicants may reduce the amount of protection to which they are willing to agree, in effect holding some additional protective measures “in reserve” for use in any future discussions to address critical habitat. The failure to exclude qualified HCP lands from critical habitat designations could decrease the program's efficacy and have profound effects on our ability to establish and maintain important conservation partnerships with stakeholders.
Excluding qualified HCP lands from critical habitat provides permittees with the greatest possible certainty, and thereby may help foster the cooperation necessary to allow the HCP program to achieve the greatest possible conservation benefit. Thus, excluding the lands covered by HCPs may improve the Service's ability to enter into new partnerships. In addition, permittees who trust and benefit from the HCP process may encourage future HCP participants, such as States, counties, local jurisdictions, conservation organizations, and private landowners, leading to new HCPs that may result in implementation of conservation actions we would be unable to accomplish otherwise.
Excluding lands covered under HCPs from the critical habitat designation may also relieve landowners from the possibility of any additional regulatory burden and costs associated with the preparation of section 7 documents related to critical habitat. While the costs of providing these additional documents to the Service is minor, there may be resulting delays that generate perceived or very real costs to private landowners in the form of opportunity costs, as well as direct costs.
HCPs can provide other important conservation benefits, including the development of important biological information needed to guide conservation efforts and assist in species conservation outside the HCP planning area. Each of the HCPs evaluated below have some component of adaptive forest management to address uncertainties in achieving their agreed-upon conservation objectives for the northern spotted owl. The adaptive management strategy helps to ensure management will continue to be consistent with agreed-upon northern spotted owl conservation objectives.
Below is a brief description of each HCP and the lands proposed as critical habitat covered by each plan that we have excluded from critical habitat designation under section 4(b)(2) of the Act.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, that are covered under the Green Diamond Resource Company Northern Spotted Owl Habitat Conservation Plan of 1992. The Green Diamond Resource Company (Green Diamond, formerly Simpson Timber Company) operates under a northern spotted owl HCP within the Redwood Coast Critical Habitat Unit in California. The Incidental Take Permit (ITP) issued in association with this HCP was initially noticed in the
At the time the permit was issued, more than 100 northern spotted owl nest sites or activity centers were known or suspected on the property. The Service determined that the projected growth and harvest rates indicated more habitat of the age class primarily used by northern spotted owls would exist on the property at the end of the 30-year permit period. In addition, the HCP provided that nest sites would be protected during the breeding season, and no direct killing or injuring of owls was anticipated. Green Diamond also agreed to continue their monitoring programs, in which more than 250 adult owls and more than 100 juveniles were already banded, as well as analyses of timber stands used by owls. As required by the terms of the HCP, Green Diamond and the Service conducted a comprehensive review of the first 20
On April 16, 2010, we announced our intent to prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) in response to an expected new HCP from Green Diamond, which would include provisions for the northern spotted owl and possibly the Pacific fisher (
Since approval of the 1992 HCP, personnel from Green Diamond, along with academic and research institutions, have been the largest single contributor of scientific information on the ecology of northern spotted owls and their habitats on managed forest lands in the redwood region, in the form of graduate theses and peer-reviewed papers. Since the initial listing of the northern spotted owl in 1990, Green Diamond has maintained on their lands 1 of the 11 demographic study areas within the range of the northern spotted owl that have been used for rangewide monitoring and evaluation of populations and population trends in the Pacific northwest. This important demographic information is reported in a continuing series of monographs, the most recent being Forsman
Another potential benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, State and local government agencies, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. However, in this case the educational value of critical habitat is limited. Green Diamond has already made substantial contributions to our knowledge of the species through research and monitoring without critical habitat designated on their lands. In addition, the educational and informational benefits that might arise from critical habitat designation have been largely accomplished through the public review and comment on the HCP and associated documents. The release of the Revised Recovery Plan for the Northern Spotted Owl in 2011 was also preceded by outreach efforts and public comment opportunities. Furthermore, we conducted extensive outreach efforts on the proposed revision of critical habitat, including multiple public information meetings and opportunities for public comment. Through these outreach opportunities, land owners, State agencies, and local governments have become aware of the status of and threats to the northern spotted owl, and the conservation actions needed for recovery.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These
The designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of redundant government regulation. If lands within the Green Diamond HCP are designated as critical habitat, it would likely have a negative effect on our continued ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement various conservation actions (such as SHAs, HCPs, and other conservation plans) that we would be unable to accomplish otherwise. In addition, our conservation partnership with Green Diamond may serve as a model and aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species. We consider the positive effect of excluding proven conservation partners from critical habitat to be a significant benefit of exclusion.
In this instance, the regulatory and educational benefits of inclusion in critical habitat are minimal compared to the significant benefits gained through our conservation partnership with Green Diamond. In addition, the conservation measures of their HCP serves not only an educational function for the company and local and State regulatory jurisdictions, but also provides for significant conservation and management of northern spotted owl habitat and contributes to the recovery of the species. The HCP provisions for protecting and maintaining northern spotted owl habitat far exceed the conservation benefits that would be obtainable through section 7 consultation. The company's current program of research on the northern spotted owl habitat and demographics could not be obtained through section 7 consultation.
Exclusion of these lands from critical habitat will help foster the partnership we have developed with Green Diamond, partly through the development and continuing implementation of the HCP, and partly through the encouragement of elective actions by the company that are unconnected to the HCP. For example, Green Diamond's elective role in maintaining a demographic study area, which is a key part of the network of demographic study areas essential to determining the rangewide population trends of the northern spotted owl, is integral to continuing research on the species. Our partnership with Green Diamond not only provides a benefit for the conservation of the northern spotted owl, but it may also serve as a model and aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species. For these reasons, we have determined that the benefits of exclusion of lands covered by the Green Diamond Resource Company HCP outweigh the benefits of critical habitat designation.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, that are covered under the Humboldt Redwood Company (formerly Pacific Lumber) HCP in the Redwood Coast CHU in California. The permit under this HCP with a term of 50 years was noticed on July 14, 1998 (63 FR 37900) and issued on March 1, 1999. The HCP includes 208,172 ac (84,244 ha) of commercial timber lands in Humboldt County, essentially all of the formerly Pacific Lumber timberlands outside of the Headwaters Reserve, which is currently under Bureau of Land Management administration. The Humboldt Redwood Company HCP includes nine nonlisted species (including one candidate species) and three listed species, including the northern spotted owl. Activities covered by the HCP include forest management activities and mining or other extractive activities. With regard to the northern spotted owl in particular, the HCP addresses the harvest, retention, and recruitment of requisite habitat types and elements within watershed assessment areas and individual northern spotted owl activity sites. The management objectives of the HCP are to minimize disturbance to northern spotted owl activity sites, monitor to determine whether these efforts maintain a high-density and productive population of northern spotted owls, and apply adaptive forest management provisions as necessary to evaluate or modify existing conservation measures. In addition, there are specific habitat retention requirements to conserve habitat for foraging, roosting, and nesting at northern spotted owl activity sites. The other conservation elements of the HCP are also expected to aid in the retention and recruitment of potential foraging, roosting, and nesting habitat in watersheds across the ownership. For example, the HCP establishes a network of marbled murrelet conservation areas, outlines silvicultural requirements associated with riparian management zones and mass wasting avoidance areas, imposes cumulative effects/disturbance index restrictions, and contains a retention standard of 10 percent late seral habitat in each watershed assessment. Each of these measures is likely to provide additional suitable habitat for the northern spotted owl.
The HCP conservation measures that provide direct and indirect benefits to the northern spotted owl and its habitat have been implemented continuously since 1999 on all covered lands owned and managed by the Humboldt Redwood Company. Northern spotted owl conservation measures are subject to re-evaluation and modification through active adaptive forest management provisions in the Plan, which can be initiated by the Service or by the Company.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. The landowners in this case are aware of the needs of the species through the development of their HCP, in which they have agreed to take measures to protect the northern spotted owl and its habitat. Any additional educational and information benefits that might arise from critical habitat designation have been largely accomplished through the public review of and comment on the HCP and the associated permit. The release of the Revised Recovery Plan for the Northern Spotted Owl in 2011 was also preceded by outreach efforts and public comment opportunities. In addition, the rulemaking process associated with critical habitat designation included several opportunities for public comment, and we also held multiple public information meetings across the range of the species. Through these outreach opportunities, land owners, State agencies, and local governments have become aware of the current status of and threats to the northern spotted owl, and the conservation actions needed for recovery.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher
Excluding the approximately 208,172 ac (84,244 ha) owned and managed by the Humboldt Redwood Company from critical habitat designation will sustain and enhance the working relationship between the Service and the Company, and will bolster our ability to pursue additional conservation partnerships for the benefit of listed species. The willingness of the Humboldt Redwood Company to work with us to manage their forest lands for the benefit of the northern spotted owl will continue to reinforce those conservation efforts and our partnership, which contributes to the recovery of the species. We consider this voluntary partnership in conservation important to our understanding of the status of northern spotted owls on non-Federal lands and necessary for us to implement recovery actions such as habitat protection and restoration, and beneficial management actions for species. In addition, as noted above, our conservation partnership with the Humboldt Redwood Company may serve as a model and aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species. We consider the positive effect of excluding proven conservation partners from critical habitat to be a significant benefit of exclusion.
Humboldt Redwood Company has made important contributions to our understanding of the ecology of the northern spotted owl and its habitats in the redwood region, and continues to do so through HCP implementation and long-term monitoring. The Service recognizes the conservation value of partnerships with non-Federal landowners, such as the Humboldt Redwood Company, which allow us to achieve conservation measures that would not otherwise be attainable on these private lands. We have determined that our conservation partnership with the Humboldt Redwood Company HCP, in conjunction with the conservation measures provided in the HCP, provide a greater benefit than would the regulatory and educational benefits of critical habitat designation. Furthermore, we have determined that the additional regulatory benefits of designating critical habitat, afforded through the section 7(a)(2) consultation process, are minimal because of limited Federal nexus and because conservation measures specifically benefitting the northern spotted owl and its habitat are in place through the implementation of the HCP. Therefore, in consideration of the factors discussed above in the Benefits of Exclusion section, including the relevant impact to current and future partnerships, we have determined that the benefits of exclusion of lands covered by the Humboldt Redwood Company HCP outweigh the benefits of critical habitat designation.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, that are covered under the Regli Estate HCP in the Redwood Coast CHU. The permit issued under this HCP in 1995 (noticed July 17, 1995 (60 FR 36432) and issued August 30, 1995) covers 484 ac (196 ha) in Humboldt County, California, to be used for forest management activities.
Two listed species, the marbled murrelet and northern spotted owl, as well as two nonlisted species, are covered under the incidental take permit. Provisions in the HCP for the northern spotted owl include the mitigation of impacts from forest management activities by using single-tree selection silviculture that would retain owl foraging habitat suitability in all harvested areas; protecting an 80-ac (32-ha) core nesting area for one of the two owl pairs known to exist in the HCP area; and planting conifer tree species on approximately 73 ac (30 ha) of currently nonforested habitat within the HCP area, which would result in a net increase in forested habitat over time. In addition, take of owls would be minimized using seasonal protection measures specified in the HCP.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. The landowners in this case are aware of the needs of the species through the development of their HCP, in which they have agreed to take measures to protect the northern spotted owl and its habitat. Any additional educational and information benefits that might arise from critical habitat designation have been largely accomplished through the public review of and comment on the HCP and the associated permit. The release of the Revised Recovery Plan for the Northern Spotted Owl in 2011 was also preceded by outreach efforts and public comment opportunities. In addition, the rulemaking process associated with critical habitat designation included several opportunities for public comment, and we also held multiple public information meetings across the range of the species. Through these outreach opportunities, land owners, State agencies, and local governments have become aware of the current status of and threats to the northern spotted owl, and the conservation actions needed for recovery.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, CALFIRE has indicated to us that it is unlikely to impose any new requirements on project proponents if critical habitat is designated in areas already subject to California Forest Practice Rules. Therefore, we believe this potential benefit of critical will be limited.
The HCP incorporates protections and management objectives for the northern spotted owl and the habitat upon which it depends for breeding, sheltering, and foraging activities. The approach used in the HCP, along with our close coordination with the landowner, addresses the identified threats to northern spotted owl on covered lands that contain the physical or biological features essential to the conservation of the species. The conservation measures identified within the HCP seek to maintain or surpass current habitat
Excluding the approximately 484 ac (196 ha) of this covered land from critical habitat designation will sustain and enhance the working relationship between the Service and the owner, and will increase the likelihood that the owner will update the HCP and apply for a new incidental take permit when the current permit expires in 2015. The willingness of the landowner to work with the Service to manage federally listed species will continue to reinforce those conservation efforts and our partnership, which contribute toward achieving recovery of the northern spotted owl. We consider this voluntary partnership in conservation important in maintaining our ability to implement recovery actions such as habitat protection and restoration, and beneficial management actions for species on non-Federal lands. The Service recognizes the importance of non-Federal landowners in contributing to the conservation and recovery of listed species, and seeks to maintain and promote these partnerships for the benefit of all threatened and endangered species.
We consider conservation partnerships with private landowners to represent an integral component of recovery for listed species. However, the designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of redundant government regulation. If lands within the Regli Estate HCP are designated as critical habitat, it would likely have a chilling effect on our continued ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement various conservation actions (such as SHAs, HCPs, and other conservation plans) that we would be unable to accomplish otherwise. We therefore consider the positive effect of excluding proven conservation partners from critical habitat to be a significant benefit of exclusion.
Exclusion of these lands from critical habitat will help foster the partnership we have developed with the company, through the continuing implementation of the HCP. Furthermore, we believe exclusion of these lands from critical habitat will increase the likelihood that the owner will update the HCP and apply for a new incidental take permit when the current permit expires in 2015, thereby ensuring continuing benefits to the northern spotted owl and its habitat on these lands. The HCP has provisions for protecting and maintaining northern spotted owl habitat that exceed the conservation benefits that could be obtained through section 7 consultation. These measures will not only prevent the degradation of essential features of the northern spotted owl, but they will maintain or improve these features over time. Finally, this partnership may serve as a model and aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species.
In summary, we have determined that our conservation partnership with the Regli Estate, in conjunction with the conservation measures provided in the HCP, provide a greater benefit than would the regulatory and educational benefits of critical habitat designation. We have determined that the additional regulatory benefits of designating critical habitat, afforded through the section 7(a)(2) consultation process, are minimal because the probability of a Federal nexus for projects on this land is limited in scope and will occur episodically at most. On the other hand, the conservation measures specifically benefitting the northern spotted owl and its habitat are in continuous effect throughout the lands covered by this HCP. Finally, the Service acknowledges the importance of conservation partnerships with private landowners in achieving the recovery of listed species, such as the northern spotted owl, and recognizes the positive benefits that accrue to conservation through the exclusion of recognized conservation partners from critical habitat. Therefore, in consideration of the factors discussed above in the
In this final designation, the Secretary has exercised his authority to exclude 39 ac (16 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are covered under the Terra Springs LLC HCP in subunit 6 of the Interior California Coast CHU. The permit issued in association with this HCP (noticed October 29, 2002 (67 FR 65998), and issued in 2004) has a term of 30 years and includes a total of 76 ac (31 ha) of covered land second-growth forest lands in Napa County, California. This HCP addresses the effects of timber harvest and conversion of forest lands to vineyard and subsequent maintenance, in perpetuity, of suitable northern
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. The landowners in this case are aware of the needs of the species through the development of their HCP, in which they have agreed to take measures to protect the northern spotted owl and its habitat. Any additional educational and information benefits that might arise from critical habitat designation have been largely accomplished through the public review of and comment on the HCP and the associated permit. The release of the Revised Recovery Plan for the Northern Spotted Owl in 2011 was also preceded by outreach efforts and public comment opportunities. In addition, the rulemaking process associated with critical habitat designation included several opportunities for public comment, and we also held multiple public information meetings across the range of the species. Through these outreach opportunities, land owners, State agencies, and local governments have become aware of the current status of and threats to the northern spotted owl, and the conservation actions needed for recovery.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, CALFIRE has indicated to use that it is unlikely to impose any new requirements on project proponents if critical habitat is designated in areas already subject to California Forest Practice Rules. Therefore, we believe this potential benefit of critical will be limited.
Excluding the approximately 39 ac (16 ha) owned and managed by Terra Springs, LLC from critical habitat designation will sustain and enhance the working relationship between the Service and the company. The willingness of the company to work with the Service to manage federally listed species will continue to reinforce those conservation efforts and our partnership, which contribute toward achieving recovery of the northern spotted owl. We consider this voluntary partnership in conservation important in maintaining our ability to implement recovery actions, such as habitat protection and restoration, and beneficial management actions for species on non-Federal lands. The Service recognizes the importance of non-Federal landowners in contributing to the conservation and recovery of listed species, and seeks to maintain and promote these partnerships for the benefit of all threatened and endangered species.
We consider conservation partnerships with private landowners to represent an integral component of recovery for listed species. However, the designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of redundant government regulation. If lands within the Terra Springs HCP are designated as critical habitat, it would likely have a chilling effect on our continued ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement various conservation actions (such as SHAs, HCPs, and other conservation plans) that we would be unable to accomplish otherwise. We therefore consider the positive effect of excluding proven conservation partners from critical habitat to be a significant benefit of exclusion.
We have determined that the preservation of our conservation partnership with Terra Springs, in conjunction with the conservation measures provided by the HCP, provide a greater benefit than would the regulatory and educational benefits of critical habitat designation. The additional regulatory benefits of designating critical habitat, afforded through the section 7(a)(2) consultation process, are minimal because there is little probability of a Federal nexus on these private lands. On the other hand, the conservation measures specifically benefitting the northern spotted owl and its habitat are in continuous effect throughout the lands covered by this HCP. Finally, the Service acknowledges the importance of conservation partnerships with private landowners in achieving the recovery of listed species, such as the northern spotted owl, and recognizes the positive benefits that accrue to conservation through the exclusion of recognized conservation partners from critical habitat. Therefore, in consideration of the factors discussed above in the
No lands covered under an HCP in the State of Oregon are designated as critical habitat.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, totaling approximately 3,244 ac (1,313 ha) that are covered under the Cedar River Watershed HCP (Cedar River HCP) in King County, Washington. The permit associated with this HCP was noticed in the
At the time the HCP was approved, the 90,535 ac (36,638 ha) in upper Cedar River Watershed, owned and managed by the City of Seattle as a closed-watershed, consisted of approximately 13,889 ac (5,620 ha) of old growth forest (190-800 years old), 91 ac (37 ha) of late-successional (120-189 years old), 1,074 ac (435 ha) of mature forests (80-119 years old), and 70,223 ac (28,418 ha) of second growth forests (greater than 80 years old). Conservation strategies in the HCP for covered lands are centered around protecting and preserving the remaining old growth, late-successional, and mature forest habitats; accelerating the development of mature forest characteristics in the existing second growth forests though a combination of riparian, ecological, and restoration thinnings; and minimizing human disturbance through road closures and road abandonments, elimination of commercial harvest on covered lands, and continued management of the covered lands as a closed municipal watershed.
At the time the HCP was approved, only two northern spotted owl reproductive site centers and two single-resident site centers had been identified on covered lands. In addition, two reproductive site enters located outside the watershed boundary had owl circles that partially overlap the Cedar River watershed. The boundaries of all known reproductive site centers are protected by the City of Seattle's commitment to conservation strategies and species-specific measures in the Cedar River HCP. The objectives of the northern spotted owl conservation strategy are to avoid, minimize, and mitigate impacts of watershed activities to northern spotted owls, provide a long-term net benefit to the northern spotted owl, and contribute to the owl's recovery. These objectives are to be accomplished by protecting existing habitat; enhancing and recruiting significantly more nesting, roosting, foraging, and dispersal habitat in the Cedar River watershed; and protecting nest sites, reproductive pairs, and their offspring from disturbances. In addition, the City of Seattle committed to implementing a monitoring and research program that will be used to help determine if the conservation strategies for the northern spotted owl achieve their conservation objectives and support the adaptive management program designed to provide a means by which conservation measures could be altered to meet these conservation objectives. Elements of the monitoring and research program important to northern spotted owls include a project to improve the City's forest habitat inventory and data base, a project to track changes in forest habitat characteristics, a study to classify old-growth types in the Cedar River
The incremental benefit from designating critical habitat for the northern spotted owl within the Cedar River HCP is further minimized because, as explained above, these covered lands are already managed for the conservation of the species over the term of the HCP and the conservation measures provided by the HCP will provide greater protection to northern spotted owl habitat than the designation of critical habitat.
The Cedar River HCP provides for the needs of the northern spotted owl by protecting and preserving thousands of acres of existing suitable northern spotted owl habitat in the Cedar River watershed, committing to the enhancement and recruitment of approximately 70,000 ac (28,328 ha) of additional habitat over the term of the Cedar River HCP, and implementing species-specific conservation measures designed to avoid and minimize impacts to northern spotted owls. Monitoring and research and adaptive management programs were developed to track HCP progress over the term of the permit and provide critical feedback on management actions that allow for management changes in response to this feedback or to larger trends outside the HCP boundaries such as climate change. Therefore, designation of critical habitat would be redundant on these lands, and would not provide additional measureable protections.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Designation of critical habitat would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances, such as the Washington State Growth Management Act, which encourage the protection of “critical areas” including fish and wildlife habitat conservation areas. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. However, the additional educational and informational benefits that might arise from critical habitat designation here have been largely accomplished through the public review and comment of the HCP, Environmental Impact Statement, and Implementation Agreement. Through these processes, this HCP included intensive public involvement.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, in Washington, State forest practices regulations provide an exemption for review for lands managed under an HCP. Thus, even should the State respond to designation of critical habitat by instituting additional protections, the HCP will not be subject to those protections as the species is considered already addressed, and therefore no additional benefit would accrue through State regulations.
HCP conservation measures that provide a benefit to the northern spotted owl and its habitat have been implemented continuously since 1998 on all covered lands owned and managed under the Cedar River HCP. Excluding the lands managed under the Cedar River HCP from critical habitat designation will sustain and enhance the working relationship between the Service and the permit holder.
Excluding lands within HCPs from critical habitat designation can also facilitate our ability to seek new partnerships with future HCP participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within HCP plan areas are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop HCPs, particularly large, regional HCPs that involve numerous participants and/or address landscape-level conservation of species and habitats. By excluding these lands, we preserve our current partnerships and encourage additional conservation actions in the future.
In addition, the management strategies of the Cedar River HCP are designed to protect and enhance habitat for the northern spotted owl. The Cedar River HCP includes species-specific
On the other hand, the benefit of excluding these lands is that it will help us maintain an important and successful conservation partnership with a major city, and may encourage others to join in conservation partnerships as well. For these reasons, we have determined that the benefits of exclusion outweigh the benefits of inclusion in this case.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, totaling approximately 3,162 ac (1,280 ha) that are covered under Tacoma Water's Green River Water Supply Operations and Watershed Protection HCP (Green River HCP) in the State of Washington. The permit associated with this HCP was noticed in the
The City of Tacoma manages approximately 15,843 ac (6,411 ha) of covered lands in the upper Green River watershed for water quality benefits and timber harvest. The Green River HCP divides Tacoma-owned lands into three distinct management zones, and contains a series of conservation measures that address upland forest management, riparian buffers, and avoid or minimize impacts to covered species. Each management zone has specific goals and objectives that focus on water quality, fish and wildlife, and timber management. The Natural Zone contains 5,850 ac (2,370 ha). In this zone, Tacoma is committed to conduct no timber harvest management except for danger tree removal. The long-term goal is to allow these timber stands to develop into late-seral (greater than 155 years old) and mature timber (106-155 years old) conditions through natural succession. The Conservation Zone contains 5,180 ac (2,080 ha) of covered lands. In this zone, Tacoma will conduct no even-aged harvest in conifer stands and no harvest of any form in stands over 100 years old (except for danger tree removal). Tacoma may conduct uneven-aged harvest in stands less than 100 years old to improve stand condition. Once stands reach 100 years of age, no timber harvest will be conducted and stands will be allowed to develop through natural succession. The Commercial Zone contains 3,858 ac (1,561 ha) of covered lands. Stands in this zone will be managed sustainably for timber production on a 70-year rotation. A considerable area of late-seral and mature forest capable of supporting nesting, roosting, foraging, and dispersal of northern spotted owls is expected to develop over time in the Natural Zone, Conservation Zone, and to a lesser extent, riparian buffers. Over the term of the permit, the amount of late-seral forest is expect to increase from 41 ac (17 ha) to 292 ac (118 ha), and the amount of mature forest is expected to increase from 268 ac (108 ha) to 4,027 ac (1,630 ha).
At the time the permit was approved, there were 16 known northern spotted owl activity centers within 1.8 miles of covered lands. Fifteen were reproductive site centers and one was a single-resident site center. Only the single-resident site center was actually located on covered lands. Species-specific conservation measures are designed to protect habitat around known nest sites and minimize disturbance during the nesting season.
Another factor that minimizes any regulatory benefits that might result from critical habitat designation is that the Green River HCP already provides for the needs of the northern spotted owl by protecting and preserving acres of existing suitable northern spotted owl habitat in the Green River watershed, committing to the enhancement and recruitment of additional area of suitable habitat over the term of the Green River HCP, and implementing species-specific conservation measures designed to avoid and minimize impacts to northern spotted owls. Monitoring was developed to track HCP progress over the term of the permit and provide critical feedback on management actions, which allow for management changes in response to this feedback or to larger trends outside the HCP boundaries such as climate change. Therefore, designation of critical habitat would be redundant on these lands, and would not provide additional measurable protections.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Designation of critical habitat would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances, such as the Washington State Growth Management Act, which encourage the protection of “critical areas” including fish and wildlife habitat conservation areas. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. However, the additional educational and informational benefits that might arise from critical habitat designation here have been largely accomplished through the public review and comment on the HCP, Environmental Impact Statement, and Implementation Agreement.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, in Washington, State forest practices regulations provide an exemption for review for lands managed under an HCP. Thus, even should the State respond to designation of critical habitat by instituting additional protections, the HCP will not be subject to those protections as the species is considered already addressed, and therefore no additional benefit would accrue through State regulations.
Excluding lands within HCPs from critical habitat designation may also support our continued ability to seek new partnerships with future HCP participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within HCP plan areas are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop HCPs, particularly HCPs address landscape-level conservation of species and habitats. By excluding these lands, we preserve our current partnerships and encourage additional conservation actions in the future.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, totaling about 33,144 ac (13,413 ha) that are covered under the Plum Creek Timber Central Cascades HCP (Plum Creek HCP) in the State of Washington. The permit associated with the Plum Creek HCP was first noticed in the
At the time the permit was approved, there were 107 known northern spotted owl activity centers within 1.82 miles of covered lands, which included reproductive site centers, single-resident site centers, and historic sites. A detailed description of each sites history is provided in the HCP and associated technical papers.
HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs ensure the long-term protection and management of a covered species and its habitat. In addition, funding for such management is ensured through the Implementation Agreement. Such assurances are typically not provided by section 7 consultations, which in contrast to HCPs, often do not commit the project proponent to long-term, special management practices or protections. Thus, a section 7 consultation typically does not afford the lands it covers similar extensive benefits as a HCP. The development and implementation of HCPs provide other important conservation benefits, including the development of biological information to guide the conservation efforts and assist in species conservation, and the creation of innovative solutions to conserve species while meeting the needs of the applicant. In this case, substantial information has been developed from the research, monitoring, and surveys conducted under the Plum Creek HCP.
There is minimal incremental benefit from designating critical habitat for the northern spotted owl within the Plum Creek HCP because, as explained above, these covered lands are already managed for the conservation of the species over the term of the HCP and the conservation measures provided by the HCP will provide greater protection to northern spotted owl habitat than the designation of critical habitat, which provides regulatory protections only in the event of a Federal action. The Plum Creek HCP provides for the needs of the northern spotted owl by protecting and preserving landscape levels of suitable northern spotted owl nesting, roosting, and foraging habitat as well as foraging and dispersal habitat over the term of the HCP in strategic landscapes, and implementing species-specific conservation measures designed to avoid and minimize effects to northern spotted owls. The HCP also provides for the ability to make ongoing adjustments in a number of forms including active adaptive forest management. The ability to change is crucial to meet new recovery challenges. The Service negotiated this plan with Plum Creek, which contains mandatory permit conditions in the form of HCP commitments, and continues to be involved in its ongoing implementation. The Service conducts compliance monitoring on the covered lands and routinely meets with Plum Creek to discuss ongoing implementation. The HCP contains provisions that address ownership changes and the outcomes expected by the Service. Monitoring was developed to track HCP progress over the term of the permit and provide feedback on management actions. Therefore, designation of critical habitat would be redundant on these lands, and would not provide additional measureable protections.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Designation of critical habitat would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances, such as the Washington State Growth Management Act, which encourage the protection of “critical areas” including fish and wildlife habitat conservation areas. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, in Washington, State forest practices regulations provide an exemption for review for lands managed under an HCP. Thus, even should the State respond to designation of critical habitat by instituting additional protections, the HCP will not be subject to those protections as the species is considered already addressed, and therefore no additional benefit would accrue through State regulations.
In addition, exclusion may encourage Plum Creek to engage in further land exchanges or sales of their lands for conservation purposes. This HCP is located in a key landscape between the I-90 and other Federal lands and represents a unique opportunity in maintaining northern spotted owls at the western extreme of the Cascades, which may support dispersal between the Cascades. This HCP contributes meaningfully to the recovery of the northern spotted owl and serves as an example to other industrial companies. Since issuance of the Plum Creek HCP, Plum Creek's ownership has decreased from about 170,000 ac (68,797 ha) to about 81,000 ac (32,780 ha). This decrease is mostly due to land exchanges and sales by Plum Creek for conservation purposes. Conservation sales have been completed on a number of sensitive sites. Plum Creek has worked to find conservation buyers and has responded to requests from agencies and conservation groups. They have sold lands to a various parties using differing funding mechanisms, but sold lands have been transferred to public ownership, primarily the U.S. Forest Service. All of these lands have been placed in conservation status. If lands within the Plum Creek HCP plan areas are designated as critical habitat, it would likely have a negative effect on the willingness of various groups and funding sources to accomplish these conservation sales, and could also negatively affect Plum Creek's willingness to participate in these acquisition processes.
On the other hand, the benefits of exclusion will continue the positive relationship we currently have with Plum Creek and encourage others to engage in conservation partnerships such as HCPs as well. For these reasons, we determine that the benefits of excluding the Plum Creek Cascades HCP from the designation of critical habitat for the northern spotted owl outweigh the benefits of including this area in critical habitat.
Washington State lands totaling approximately 225,751 ac (91,358 ha) that are covered and managed under the Washington State Department of Natural Resources State Lands Habitat Conservation Plan (WDNR HCP), are excluded from this critical habitat designation under section 4(b)(2) of the Act. The WDNR HCP covers approximately 1.7 million ac (730,000 ha) of State forest lands within the range of the northern spotted owl in the State of Washington. The majority of the area covered by the HCP is west of the Cascade Crest and includes the Olympic Experimental State Forest. The HCP area on the east side of the Cascade Range includes lands within the range of the northern spotted owl. The permit associated with this HCP, issued January 30, 1997, was noticed in the
The HCP addressed multiple species through a combination of strategies. The HCP includes a series of Natural Area Preserves and Natural Resource Conservation Areas. The marbled murrelet is addressed through a combination of steps culminating in the development of a long-term plan to retain and protect important old-forest habitat, which will also benefit the northern spotted owl. Riparian conservation includes buffers on fish-bearing streams as well as substantial buffers on streams and wetlands without fish, and deferring harvest on unstable slopes. Wildlife trees are retained in buffers of natural features (e.g., caves, wetlands, springs, cliffs, talus slopes) and streams, as well as scattered and clumped within harvest units. The HCP also requires WDNR to maintain and grow forests of various structural stages across all of their HCP ownerships. Specifically for northern spotted owls, they have identified portions of the landscape upon which they will manage for nesting, roosting, and foraging (NRF) habitat for northern spotted owls. These areas are known as NRF Management Areas (NRFMAs) and were located to provide demographic support that would strategically complement the NWFP's Late-Successional Reserves as well as those Adaptive Management Areas that have late-successional objectives. The NRFMAs also were situated to help maintain species distribution. Generally, these NRFMAs will be managed so that approximately 50 percent of those lands will develop into NRF habitat for the northern spotted owl over time. Within this 50 percent, certain nest patches containing high-quality nesting habitat are to be retained and grown. Since the HCP was implemented, within the NRFMAs, WDNR has carried out 5,100 ac (2,064 ha) of pre-commercial thinning and 7,800 ac (3,156 ha) of timber harvest specifically configured to enhance northern spotted owl habitat. WDNR's habitat-enhancement activities will continue under the HCP.
Some areas outside of the NRFMAs are managed to provide for dispersal and foraging conditions in 50 percent of the forests in those areas; these were strategically located in landscapes important for connectivity. The Olympic Experimental State Forest is managed to provide for northern spotted owl conservation across all of its lands. Even in areas not specifically managed for northern spotted owls, WDNR has committed to providing a range of forest stages across the landscape to address multiple species. This commitment of forest stages, in combination with wildlife trees retained within harvest units and stream and landscape-feature buffers, will provide a matrix of habitat conditions that will also provide some assistance in conserving northern spotted owls. Stands containing scattered leave trees following harvest will become more valuable for northern spotted owls at earlier ages than those stands harvested using previous methods. Northern Spotted owls across the WDNR HCP are expected to benefit from the combination of these strategies.
At the time the permit was approved, there were approximately 292 northern spotted owl site centers overlapping on WDNR covered lands, including 76 known site centers (excluding historic sites and non-territorial singles). There were approximately 484,717 ac (196,158 ha) of suitable habitat on covered lands, which comprised over 10 percent of all suitable habitat in Washington State at that time.
HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs ensure the long-term protection and management of a covered species and its habitat. Funding for such management is ensured through the Implementation Agreement. Such assurances are typically not provided by section 7 consultations, which in contrast to HCPs, often do not commit the project proponent to long-term, special management practices or protections. Thus, a section 7 consultation typically does not afford the lands the same benefits as a HCP.
There is minimal incremental benefit from designating critical habitat for the northern spotted owl within the WDNR HCP because, as explained above, these covered lands are already managed for the conservation of the species over the term of the HCP and the conservation measures provided by the HCP will provide greater protection to northern spotted owl habitat than the designation of critical habitat, which provides regulatory protections only in the event of a Federal action. The WDNR HCP provides for the needs of the northern spotted owl by protecting and preserving landscape levels of suitable northern spotted owl nesting, roosting, and foraging habitat as well as foraging and dispersal habitat over the term of the HCP in strategic landscapes, and implementing species-specific conservation measures designed to avoid and minimize effects to northern spotted owls. The HCP also provides for the ability to make ongoing adjustments in a number of forms, including active adaptive forest management. The ability to change is crucial to meet new recovery challenges. The Service continues to be involved in the implementation of this HCP. The Service conducts compliance monitoring on the covered lands and routinely meets with WDNR to discuss ongoing implementation. The HCP contains provisions that address ownership changes and the outcomes expected by the Service. Monitoring was developed to track HCP progress over the term of the permit and provide feedback on management actions. Therefore, designation of critical habitat would be redundant on these lands, and would not provide additional measureable protections.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Designation of critical habitat would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances, such as the Washington State Growth Management Act, which encourage the protection of “critical areas” including fish and wildlife habitat conservation areas. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. However, WDNR, as the State's natural resource agency, is knowledgeable about the species and has made substantial contributions to our knowledge of the species. In addition the additional educational and informational benefits that might arise from critical habitat designation here have been largely accomplished through the public review and comment of the HCP, Environmental Impact Statement, and Implementation Agreement, as well as the supplemental Environmental Impact Statements associated with the modification of the HCP. This HCP included intensive public involvement and continues to be an example used when discussing HCPs. The HCP is frequently a topic of open and public discussion during meetings of the Washington State Board of Natural Resources, whose meetings are open to the public and frequently televised. This level of exposure in local newspapers and television stations exceeds the level of education that would come from a designation that would be read by few people in the public. Moreover, the rulemaking process associated with critical habitat designation includes several opportunities for public comment, and thus also provides for public education.
If lands within the WDNR HCP plan area are designated as critical habitat, it would also likely have a negative effect on our ability to establish new partnerships to develop HCPs, particularly large, regional HCPs that involve numerous participants and/or address landscape-level conservation of species and habitats. This HCP has served as a model for several completed and ongoing HCP efforts, including the Washington State Forest Practices HCP. By excluding these lands, we preserve our current private and local conservation partnerships and encourage additional conservation actions in the future because other parties see our exclusion as a sign that the Service will not impose duplicative regulatory burdens on landowners who have developed an HCP.
HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs ensure the long-term protection and management of a covered species and its habitat. In addition, funding for such management is ensured through the Implementation Agreement. Such assurances are typically not provided by section 7 consultations, which in contrast to HCPs often do not commit the project proponent to long-term, special management practices or protections. Thus, a section 7 consultation typically does not afford the lands it covers similar extensive benefits as an HCP. The development and implementation of HCPs provide other important conservation benefits, including the development of biological information to guide the conservation efforts and assist in species conservation, and the creation of innovative solutions to conserve species while meeting the needs of the applicant. In this case, substantial information has been developed from the research, monitoring, and surveys conducted under the WDNR HCP. Therefore, exclusion is a benefit because it maintains and fosters development of biological information and innovative solutions.
The WDNR HCP provides for significant conservation and management within geographical areas that contain the physical or biological features essential to the conservation of the northern spotted owl and help achieve recovery of this species through the conservation measures of the HCP. Exclusion of these lands from critical habitat will help foster the partnership we have developed with WDNR, through the development and continuing implementation of the HCP. Furthermore, this partnership may aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species.
For these reasons, we determine that the benefits of excluding the WDNR HCP from the designation of critical habitat for the northern spotted owl outweigh the benefits of including this area in critical habitat.
The Service has excluded approximately 5,105 ac (2,066 ha) of lands from final critical habitat designation, under section 4(b)(2) of the Act, that are covered under the West Fork Timber HCP (West Fork HCP) (formerly known as Murray Pacific Corporation) in the West Cascades Central CHU in Washington. The West Fork HCP was the first multispecies HCP on forested lands in the Nation. The permit associated with the West Fork HCP has a term of 100 years and was first issued on September 24, 1993; amended on June 26, 1995; and amended again on October 16, 2001 (66 FR 52638). The HCP includes 53,558 ac (21,674 ha) of commercial timber lands managed as a tree farm in Lewis County, Washington. The HCP is situated between an area of Federal land known as the Mineral Block and the larger block of Federal lands in the Cascades. The HCP was first developed to allow for forest-management activities and provide for the conservation of the northern spotted owl; the amended HCP provides for all species, including six listed species. The HCP is designed to develop and maintain northern spotted owl dispersal habitat across 43 percent of the tree farm, and must also meet quantitative measures of amount and distribution. As a result, total dispersal habitat will more than double in amount, and wide gaps between stands of dispersal habitat will be decreased.
In addition, the West Fork HCP provides for leaving at least 10 percent of the tree farm in reserves for the next 100 years. These reserves will primarily take the form of riparian buffers averaging at least 100 feet (30 m) on each side of all fish-bearing streams, as well as other buffers and set-a-side areas. Other provisions of the HCP are designed to ensure that all forest habitat types and age classes currently on the tree farm, as well as special habitat types such as talus slopes, caves, nest trees, and den sites, are protected or enhanced. Seasonal protection is provided within
At the time the permit was approved, there were approximately 4,678 ac (1,893 ha) of suitable habitat in small stands sporadically located, comprising about 8 percent of the ownership. The HCP included 3 resident northern spotted owls and included about 20 percent of the ownership in dispersal habitat.
HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs ensure the long-term protection and management of a covered species and its habitat. In addition, funding for such management is ensured through the Implementation Agreement. Such assurances are typically not provided by section 7 consultations, which, in contrast to HCPs, usually do not commit the project proponent to long-term, special management practices or protections. Thus, a section 7 consultation typically does not afford the lands it covers
There is minimal incremental benefit from designating critical habitat for the northern spotted owl within the West Fork HCP because, as explained above, these covered lands are already managed for the conservation of the species over the term of the HCP and the conservation measures provided by the HCP will provide greater protection to northern spotted owl habitat than the designation of critical habitat, which provides regulatory protections only in the event of a Federal action. The West Fork HCP provides for the needs of the northern spotted owl by protecting and preserving landscape levels of suitable northern spotted owl dispersal habitat over the term of the HCP in strategic landscapes, and implementing species-specific conservation measures designed to avoid and minimize effects to northern spotted owls. The HCP also provides for the ability to make ongoing adjustments in a number of forms, including active adaptive forest management. The ability to change is crucial to meet new recovery challenges. The Service continues to be involved in implementation of the HCP. It contains provisions that address ownership changes and the outcomes expected by the Service. Monitoring was developed to track HCP progress over the term of the permit and provide feedback on management actions. Therefore, designation of critical habitat would be redundant on these lands, and would not provide additional measureable protections.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Designation of critical habitat would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances, such as the Washington State Growth Management Act, which encourage the protection of “critical areas” including fish and wildlife habitat conservation areas. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. However, this landowner is knowledgeable about the species through its implementation of the HCP. In addition the additional educational and informational benefits that might arise from critical habitat designation here have been largely accomplished through the public review and comment of the HCP, Environmental Impact Statement, and Implementation Agreement. Through these processes, this HCP included intensive public involvement. Moreover, the rulemaking process associated with critical habitat designation includes several opportunities for public comment, and thus also provides for public education. Through these outreach opportunities, land owners, State agencies, and local governments have become more aware of the status of and threats to the northern spotted owl and the conservation actions needed for recovery.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, in Washington, State forest practices regulations provide an exemption for review for lands managed under an HCP. Thus, even should the State respond to designation of critical habitat by instituting additional protections, the HCP will not be subject to those protections as the species is considered already addressed, and therefore no additional benefit would accrue through State regulations.
HCP conservation measures that provide a benefit to the northern spotted owl and its habitat have been implemented continuously since 1993 on all covered lands owned and managed under the HCP. Excluding these lands from critical habitat designation will sustain and enhance the working relationship between the Service and the permit holder.
A related benefit of excluding lands within HCPs from critical habitat designation is the unhindered, continued ability to seek new partnerships with future HCP participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within the West Fork HCP plan area are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop HCPs, particularly large, regional HCPs that involve numerous participants and/or address landscape-level conservation of species and habitats. If excluded, the willingness of the landowner to work with the Service to manage federally listed species will continue to reinforce those conservation efforts and our partnership, which contribute toward achieving recovery of the northern spotted owl. We consider this voluntary partnership in conservation important in maintaining our ability to implement recovery actions such as habitat protection and restoration, and beneficial management actions for species on non-Federal lands.
In summary, the designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of redundant government regulation. If lands within the West Fork HCP area are designated as critical habitat, it would likely have a negative effect on our continued ability to seek new partnerships with future participants can implement conservation actions (such as SHAs, and HCPs) that we would be unable to accomplish otherwise. By excluding these lands, we preserve our current private and local conservation partnerships and encourage additional conservation actions in the future.
The West Fork HCP provides for significant conservation and management within geographical areas that contain the physical or biological features essential to the conservation of the northern spotted owl and help achieve recovery of this species through the conservation measures of the HCP. Exclusion of these lands from critical habitat will help foster the partnership we have developed with West Fork, through the development and continuing implementation of the HCP. Furthermore, this partnership may aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species.
In summary, we determine that the benefits of excluding the West Fork HCP from the designation of critical habitat for the northern spotted owl outweigh the benefits of including this area in critical habitat.
In this final designation, the Secretary has exercised his authority to exclude lands from critical habitat, under section 4(b)(2) of the Act, owned by The Mendocino Redwood Company (MRC, the company) and totaling approximately 232,584 total ac (94,123 ha) in Unit 3—Redwood Coast, in Mendocino and Sonoma Counties, California. This land is distributed among three critical habitat subunits as described in the following. In subunit RDC-2, we proposed approximately 209,550 ac (84,802 ha) for critical habitat designation. In subunit RDC-3, we proposed approximately 22,733 ac (9,200 ha) for critical habitat designation. In subunit RDC-4, we proposed 301 ac (121 ha) for critical habitat designation. All company lands proposed for designation within these three subunits have been excluded from critical habitat designation under section 4(b)(2) of the Act.
MRC has a long-standing voluntary partnership with the Service to protect the northern spotted owl on MRC lands. MRC initially approached the Service in 1998 to develop a combined habitat conservation plan and a State-level counterpart draft natural communities conservation plan (HCP/NCCP). Knowing that the completion of an HCP/NCCP would take an extended period of time, MRC and the Service worked together to develop a set of interim standards and measures to conserve and protect the northern spotted owl and its habitat, pending the completion of the HCP/NCCP. These written interim standards and measures are detailed and specific and have been incorporated into each of MRC's timber harvest plans since their development. These interim standards and measures are detailed in MRC's January 15, 2010, Northern Spotted Owl Resource Plan/Management Plan (SORP) (MRC 2010, pp. 1-30). The SORP was intended to serve as a bridge document to reduce resource impacts to both the northern spotted owl and its habitat until the completion of the HCP/NCCP. The SORP includes monitoring and survey requirements and northern spotted owl habitat protection measures that are implemented across the landscape. The SORP describes methodologies to locate owls, assess reproductive status, and provide a framework that includes habitat definitions and protections associated with northern spotted owl activity centers which provide measurable standards for habitat conservation. MRC and the Service meet frequently to discuss northern spotted owl study results provided by the company and this information is used by both the Service and MRC to develop measures that conserve the species through an iterative process that will assist in the development of the HCP/NCCP. In reviewing the SORP and monitoring results, we find that the SORP and protective measures therein provide substantial conservation benefits for the northern spotted owl and its habitat at a landscape scale.
The standards and measures described in the SORP are included in the “Planning Agreement” (dated August 5, 2009) that MRC entered into with the California Department of Fish and Game (CDFG) for preparation of the NCCP element of the HCP/NCCP. Planning Agreements are mandatory under the California Natural Community Conservation Planning Act, and inasmuch as the northern spotted owl standards and measures are included in MRC's planning agreement, they are mandatory. MRC has revised them when requested by the Service, as part of a voluntary partnership with the Service.
In addition, MRC has two State-level planning documents that are in effect now and which contain substantial long-terms benefits for northern spotted owl habitat. One is the company's 2008 Option A plan, entered into with CALFIRE, which sets sustainable long-term timber harvest levels and controls on standing forest inventory, and the other is the companion 2012 Management Plan, also entered into with CALFIRE, which outlines company-specific management practices used in conjunction with the Option A harvesting program. Together, these documents have enabled the company to maintain its forest certification through the Forest Stewardship Council (FSC) which gives the company access to certain wholesale lumber markets that promote “green” certified wood products. The State-level planning documents have also enabled the company to obtain registration through the California Climate Action Registry which is the designated clearinghouse for carbon-credit sellers under California's developing cap-and-trade
Following are summaries of specific measures in the 2012 Management Plan that will have direct, indirect, near-term and long-term benefits for the northern spotted owl, and which are in effect currently: (1) The company, having inherited a severely depleted forest inventory from the previous owners, has a standing policy to rebuild inventories, which will result in a doubling of total standing volume by the ninth decade of the planning horizon; (2) total harvest levels through the 100-year planning horizon are constrained to a graduating percentage of periodic growth volume, from a current 48 percent to 84 percent in the tenth decade of the plan; (3) a shift in the use of uneven-aged silviculture from a current 65 percent of harvest acres to 99 percent in the fifth decade of the plan; (4) protection policies for unharvested old-growth stands and previously harvested stands containing residual old-growth trees; (5) wildlife tree and snag retention requirements that meet or exceed Service recommendations and exceed current State Forest Practice rules; (6) a minimum forest floor large woody debris (LWD) standard on general forest land of 70 cubic feet per ac (4.9 cubic meter per ha) based on minimum-sized logs 16 in (41 cm) diameter and 10 ft (3.3 m) in length, increasing to 98 cubic feet per ac (6.9 cubic meter per ha) in riparian areas; and (7) a hardwood management policy that maintains a minimum hardwood basal area of 15 square feet per ac (3.4 square m per ha) in mixed conifer-hardwood stands. Each policy outlined above will result in: (a) A long term increase in standing forest biomass per unit of land area; or (b) increased spatial continuity of vegetative types that are suitable northern spotted owl habitat; or (c) retention of specific features such as old-growth trees or stands, and retention of a minimum level of hardwoods, snags, and wildlife trees. All of these policies will either lead to maintenance or enhancement of northern spotted owl habitat suitability or lead to emergence of suitable habitat where it is currently not present, thereby benefiting the conservation of the northern spotted owl and its habitat.
The company has completed a draft of their proposed HCP/NCCP, and the northern spotted owl is one of the covered species in this document. The company has submitted the HCP application to the Service. If the HCP/NCCP is approved and permits issued, the term of the incidental take permit and counterpart State permit would be 80 years. The combined draft Environmental Impact Statement (EIS) and State draft Environmental Impact Report (EIR) is scheduled for issuance in fall of 2012, and a final HCP/NCCP and final EIS/EIR is anticipated in spring or summer, 2013. However, as noted above, we have not taken the proposed HCP/NCCP into account in determining the level of protection currently provided to the northern spotted owl on MRC land, as we have not completed processing the permit application and a final decision has not been made whether it meets issuance criteria. We cite to the development of this HCP/NCCP only in terms of evidence of MRC's commitment to partnering with the Service for the conservation of the northern spotted owl.
Another potential benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, State and local government agencies, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. However, in this case the educational value of critical habitat is limited. As evidenced by their extensive forest management planning, this forestland owner is knowledgeable about the species.
The designation of critical habitat may also indirectly cause State or county jurisdictions to initiate their own additional requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, CALFIRE has indicated to us that it is unlikely to
Other MRC actions also demonstrate their commitment to the Federal-State-private partnership. The company's Management Plan in connection to their FSC forest certification is already in effect. That Plan has numerous measures within it that the company has been implementing on the ground for several years without any inducement from the cooperating Federal and State agencies. Much of the Management Plan is concerned with harvest scheduling and how the company will remedy its current deficit in standing forest inventory. The major part of that remedy is found in the 10-decade harvesting schedule in the Management Plan, which tightly constrains harvest levels in the early decades of the Plan and relaxes the constraint in later decades. The company has implemented the designed harvest schedule since 2000, which is supported in the certification audit reports of 2005 and 2010. This means that MRC has, in fact, foregone a portion of their potential short-term harvest revenues for nearly 12 years to fulfill a Management Plan that is not under Federal purview. Company policies embodied in the Management Plan will result in (a) a long term increase in standing forest biomass per unit of land area; or (b) increased spatial continuity of vegetative types that are suitable northern spotted owl habitat; or (c) retention of specific features such as old-growth trees/stands, retention of a minimum level of hardwoods, snags, and wildlife trees. All of these policies will either lead to maintenance of northern spotted owl habitat suitability or lead to emergence of suitable habitat where it is currently not present.
Excluding the approximately 232,584 ac (94,123 ha) owned and managed by MRC from critical habitat designation will provides significant benefit in terms of sustaining and enhancing the excellent partnership between the Service and the company, with positive consequences for conservation. The willingness of MRC to voluntarily undertake conservation efforts for the benefit of the northern spotted owl and work with the Service to develop new conservation plans for the species will continue to reinforce those conservation efforts and our partnership, which contribute toward achieving recovery of the northern spotted owl. We consider this voluntary partnership in conservation vital to our understanding of the northern spotted owl status of species on MRC lands and in the redwood region, and necessary for us to implement recovery actions such as habitat protection and restoration, and beneficial management actions for species.
The designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of government regulation. If lands within the area managed by MRC for the benefit of the northern spotted owl are designated as critical habitat, it could have a chilling effect on our continued ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement various conservation actions (such as SHAs, HCPs, and other conservation plans, particularly large, regional Conservation Plans that involve numerous participants and/or address landscape-level conservation of species and habitats) that we would be unable to accomplish otherwise. In addition, MRC serves as a model of voluntary conservation by a private landowner, and may aid in fostering future voluntary conservation efforts by other parties in other locations for the benefit of listed species. We consider the positive effect of excluding proven conservation partners from critical habitat to be a significant benefit of exclusion.
The potential educational benefits of inclusion are also limited. The company has an active monitoring program on over 150 northern spotted owl activity sites and is making increasing contributions to our knowledge of the species through focused research. In addition, there is a growing local constituency for current land management direction as a result of the company's outreach efforts in the form of public informational presentations and tours of the property. In this instance, any potential educational benefits of inclusion would have much less practical effect than any of the scientific and informational activities that the company has initiated to date.
In contrast, the benefits derived from excluding this ownership and enhancing our private lands partnership with MRC are significant. We have developed a solid working relationship with MRC, and expect this beneficial conservation partnership to continue. The benefits of this partnership are significant, because MRC has demonstrated that its actions will contribute substantially to the conservation of the northern spotted owl and its habitat and influence long-term management outcomes across the entire ownership. We noted the positive conservation benefits that accrue from exclusion from critical habitat, including relief from perceived potentially duplicative regulatory burden and the increased potential of pursuing additional conservation agreements with other private landowners. As discussed above, MRC
We have determined that the additional regulatory benefits of designating critical habitat, afforded through the section 7(a)(2) consultation process, are minimal because of limited Federal nexus and because conservation measures specifically benefitting the northern spotted owl and its habitat are in place as a result of our partnership with the company and as demonstrated by the provisions of the SORP and other planning documents, as discussed above. The potential educational and informational benefits of critical habitat designation on lands containing the physical or biological features essential to the conservation of the northern spotted owl would be minimal, because MRC is making substantial contributions to our understanding of the ecology of the northern spotted owl and its habitats in the redwood region, and continues to disseminate useful information through public education events. Therefore, in consideration of the factors discussed above in the
In this final designation, the Secretary has exercised his authority to exclude 40 ac (16 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are covered under the Scofield Corporation Deed Restriction in the East Cascades North CHU. A incidental take permit based on an HCP, was issued to Scofield Corporation in 1996 (noticed February 20, 1996 (61 FR 6381), issued April 3, 1996). The permit had a duration for only one year, but as provided in the permit terms, the lands under this HCP are now covered by a Deed Restriction for those lands in perpetuity. This HCP and deed restriction include 40 ac (16 ha) of forest lands in Chelan County, Washington. The HCP-covered forest-management activities and the associated incidental take permit included only the northern spotted owl. The HCP provided for mitigation and minimization measures by retaining a buffer of intact habitat, implementing selective timber harvest practices, and placing a perpetual deed restriction on the property permanently prohibiting further timber harvest or tree removal except with the express written consent of the Service. These measures were designed to ensure the retention of some northern spotted owl habitat and approximately 72 percent of the total number of trees after harvest.
At the time the permit was approved, the HCP-covered lands included a single northern spotted owl site with most of its habitat on adjacent Federal lands. The amount of habitat was low, due to natural eastside Cascades characteristics and recent fire. Approximately 55 percent of the mature trees in the 40-acre project area were allowed to be removed, which in the short term further reduced the availability of potential nesting, roosting, or foraging sites for northern spotted owls. However, the adverse effects on this northern spotted owl pair due to loss of habitat was likely low, because the habitat was marginal Type C (young forest marginal) at best, and surveys in the project area suggested low use by northern spotted owls. In addition, the no-harvest buffer along the highway ensured that is less than 40 ac (16 ha) was affected by the action, which is a small portion of the suitable habitat that is available for use by northern spotted owls within the median home range of that site as well as the eastern Cascades.
Under the HCP, about 55 percent of the mature trees and 28 percent of the total number of trees in the project area were allowed to be harvested. Selective harvest resulted in retention of different size and age classes of trees to contribute to stand structure and species diversity, important components to northern spotted owl habitat. Thinning the stand will allow younger age-class trees to grow, and continue to contribute to the multilayer structure of the stand. Since the project area is being allowed to grow and develop into perpetuity, suitable northern spotted owl habitat will be available in the future. This potential habitat will complement habitat that is likely to occur on adjacent national forest lands being managed as late-successional forest. In the long-term, the potential for the project area to become northern spotted owl habitat and remain in that condition is substantially greater than it would have been without the HCP. In addition, the Deed Restriction identified in the land contract provides for the permanent protection of this habitat.
A potential benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. However, the additional educational and informational benefits that might arise from critical habitat designation have been largely accomplished through the public review and comment of the HCP/Environmental Assessment, as well as the Implementation Agreement. In addition, through the Deed Restriction, the current landowner and any future owner are made fully aware of the needs of the northern spotted owl on this parcel.
Our proposed designation included 123,348 ac (49,917 ha) of privately-owned lands without existing Federal conservation agreements in the State of California that we identified as critical habitat for the northern spotted owl.
Forest management and forest practices on private lands in California, including harvesting for forest products or converting land to another use are regulated by the State under Division 4 of the Public Resources Code, and in accordance with the California Forest Practice Rules (California Code of Regulations, (CCR) Title 14, Sections 895-1115). Under this framework, the California Department of Forestry and Fire Protection (CALFIRE) is the designated authority on forest management and forest practices on private lands in California.
All private land timber harvesting in California must be conducted in accordance with a site-specific timber harvest plan (THP) that is submitted by the owner and is subject to administrative approval by CALFIRE. The THP must be prepared by a State-registered professional forester, and must contain site-specific details on the quantity of timber involved, where and how it will be harvested, and the steps that will be taken to mitigate potential environmental damage. The THP and CALFIRE's review process are recognized as the functional equivalent to the environmental review processes required under the California Environmental Quality Act of 1970 (CEQA). The policy of the State with regard to the northern spotted owl can be characterized as one of take-avoidance. The Director of CALFIRE is not authorized to approve any proposed THP that would result in take of a federally-listed species, including the northern spotted owl unless that taking is authorized under a Federal Incidental Take Permit (review process is outlined in 14 CCR 919.9 and 919.10). This latter point creates an incentive for private landowners to enter into Federal safe harbor agreements or habitat conservation plans. CALFIRE also regulates the conversion permitting process in which private forest and woodland can be converted to agricultural uses (in contrast, conversions of forest and woodlands to residential, commercial, and industrial uses are evaluated and permitted under local land use planning authorities).
Our Final Economic Analysis (IEC 2012b) concludes that critical habitat designation for the northern spotted owl is unlikely to directly affect timber harvests on private lands in California because of the low likelihood that such harvests would be simultaneously connected to a Federal permitting or funding action. Without a pending Federal action, there is no basis for initiating a consultation process under section 7 of the Act. In northern California, the Service has seen very few section 7 actions resulting from Federal permitting or funding activity on private
We, therefore, conclude that the requirement that permitting and funding agencies consult with us and ensure that their actions are not likely to destroy or adversely modify critical habitat will not result in significant benefits to the species because the possibility of a Federal nexus for a project on these lands that might trigger such consultation is limited (there is little likelihood of an action that will involve Federal funding, authorization, or implementation). In addition, since the lands in question are occupied by the northern spotted owl, if a Federal nexus were to occur, section 7 consultation would already be triggered and the Federal agency would consider the effects of its actions on the species through a jeopardy analysis. Because the possibility of a Federal nexus on these private lands is limited, the additional regulatory benefits to the species and its habitat through inclusion in critical habitat, if any, are anticipated to be minimal. In addition, existing State regulations provide protections for the northern spotted owl and its habitat, and these protections are in continuous effect. The protections to the critical habitat of the northern spotted owl, by contrast, come into effect only in the event of a Federal action.
Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. In the case of the northern spotted owl, any potential educational benefits that might be attributable to critical habitat designation are minimized by the existing State regulatory framework for the northern spotted owl in timber harvest planning. Private landowners who harvest timber in proximity to northern spotted owl activity sites are required to conduct surveys of owl activity and report those results in their proposed timber harvest plans that are submitted to CALFIRE for approval, so critical habitat designation will not result in any additional data collection. While the State's existing take-avoidance strategy for the northern spotted owl does not necessarily provide for long term conservation of suitable habitat, it does serve an important informational service with private landowners through the timber harvest planning process. Thus, CALFIRE's existing regulatory framework provides adequate and consistent education to the affected community regarding the northern spotted owl and its conservation needs.
Similarly, the great majority of industrial and non-industrial forest landowners, along with the in-house and consulting biologists who conduct the owl survey work, already voluntarily submit their survey results to the CDFG for entry into the California Natural Diversity Database (CNDDB), which is the State's clearinghouse for occupancy, activity, and spatial data on special status species. It is highly unlikely that inclusion in the final critical habitat designation could cause any increases in landowner and biologist participation in the CNDDB reporting. Voluntary participation rates are currently very high, and we have no evidence to suggest that inclusion in critical habitat would increase those rates any further.
In this case the educational value of critical habitat is further limited by the fact that the northern spotted owl is a high-profile species, and most forestland owners in the range of the northern spotted owl are knowledgeable about the species. The release of the Revised Recovery Plan for the Northern Spotted Owl in 2011 was preceded by outreach efforts and public comment opportunities, and provided information about the northern spotted owl and its conservation needs to a wide constituency. Furthermore, we conducted extensive outreach efforts on the proposed revision of critical habitat, including multiple public information meetings and opportunities for public comment. Through these outreach opportunities, land owners, State agencies, and local governments have become aware of the status of and threats to the northern spotted owl, and the conservation actions needed for recovery.
Another potential benefit of the designation of critical habitat is that it may indirectly cause State or county jurisdictions to initiate their own additional protective requirements in areas identified as critical habitat. These measures may include additional permitting requirements or a higher level of local review on proposed projects. However, CALFIRE has indicated to use that it is unlikely to impose any new requirements on project proponents if critical habitat is designated in areas already subject to California Forest Practice Rules. Therefore, we believe this potential benefit of critical will be limited.
Finally, there may be some ancillary benefits if the designation resulted in changed timber management practices on these private lands. These benefits could include but are not limited to: public safety benefits by increasing resiliency of timber stands, improved water quality, aesthetic benefits, and carbon storage. However, as discussed above, the possibility of a Federal nexus on these private lands is limited, so changes in timber management as a result of critical habitat, and any attendant ancillary benefits, are anticipated to be minimal.
Excluding the approximately 123,348 ac (49,917 ha) of private lands from critical habitat designation will sustain and enhance the conservation partnership between the Service and CALFIRE. The Service is currently working with CALFIRE to explore avenues for more comprehensive conservation planning for the northern spotted owl in northern California that goes beyond the existing take-avoidance strategy. Development of a landscape
In addition, there are many other opportunities for private landowners to enter into conservation agreements without Federal involvement that will benefit northern spotted owls. Landowners can obtain “green” forest certification through the Forest Stewardship Council (FSC) or the Sustainable Forestry Initiative (SFI) that enables access to certain wholesale lumber markets. They can register their property with the California Climate Action Registry to gain access to the emerging carbon credit market in California, or they can sell conservation easement rights on their properties to a land trust. In all cases, the landowner gains immediate economic benefits in exchange for agreeing to a management program on their lands that meets the objectives of the certification or registration entity, or the land trust. All of these instruments, by design, involve the conservation and expansion of standing forest inventory and forest cover on the participating ownerships. Whether by design or not, that will lead to the long-term improvement of existing northern spotted owl habitat suitability and to the emergence of suitable habitat in areas where it is currently unsuitable. These market-based agreements have the long term potential for significantly more on-the-ground benefits for the northern spotted owl on private lands than would the limited regulatory and educational benefits that would result from critical habitat designation.
The economic incentives for landowners to enter into these agreements are independent of a critical habitat designation. We are not certain how designation might affect perceptions and priorities among the grantors in agreements (i.e., the certification and registration entities and the land trusts). For example, land trusts operate on limited funds and we do not know how critical habitat designation might influence them in prioritizing properties for easement acquisition; that is, whether it might lead them to look more or less favorably on designated lands, or treat some geographic areas preferentially over others. Thus, exclusion from designation could avoid any uncertain, and possibly detrimental, effects on both buyers (land trusts, certification entities) and sellers (landowners) in market-based conservation programs (IEC 2012b, p. 5-21).
Excluding these lands may reduce the perception that some private landowners have that they are being subjected to redundant and unnecessary regulation. As noted above, all private land timber harvesting in California must be conducted in accordance with a site-specific THP that is submitted by the owner and is subject to administrative approval by CALFIRE. The Director of CALFIRE is not authorized to approve any proposed THP that would result in take of a federally-listed species, including the northern spotted owl, unless that taking is authorized under a Federal Incidental Take Permit. The additional overlay of Federal critical habitat on these private lands may result in lack of support for the development of a programmatic conservation agreement with CALFIRE and their valuable contribution of information to the CNDDB due to their perception of duplicative and burdensome regulation specific to the northern spotted owl.
The potential educational benefits of inclusion are also limited. Under existing State regulations, private landowners who harvest timber in proximity to northern spotted owl activity sites are required to conduct surveys of owl activity consistent with the Service-recommended protocol and report those results in their proposed timber harvest plans that are submitted to CALFIRE for approval, so landowners are already aware of the presence of the northern spotted owl and its habitat needs, and critical habitat designation will not result in any additional data collection. The State of California's existing take-avoidance strategy for the northern spotted owl provides an important informational service with private landowners through the timber harvest planning process. Therefore, in this instance, any potential educational benefits of inclusion are minimal.
In contrast, the benefits derived from excluding private lands and enhancing our partnership with California State regulatory agencies are relatively greater. The minimal benefits of inclusion are outweighed by the benefits of fostering conservation partnerships with CALFIRE that would relieve private landowners of what they might perceive as duplicative regulations. Exclusion could also encourage the partnership and collaboration in development of the landscape conservation planning between the Service and CALFIRE by focusing efforts towards that planning effort versus applying a regulatory process that would have limited private land involvement.
We also considered the avoidance of potential issues associated with regulatory uncertainty due to critical habitat designation to be a significant benefit of exclusion. For example, there may be a significant benefit of exclusion from designation that would accrue due to the avoidance of any uncertain, and possibly detrimental, effects on both buyers (land trusts, certification entities) and sellers (landowners) in market-based conservation programs that stand to provide significant conservation benefits to the northern spotted owl.
We have determined that maintaining our partnership with California State regulatory agencies provides a greater benefit than would the regulatory and educational benefits of critical habitat designation. Therefore, in consideration
In Washington we proposed 133,895 ac (54,186 ha) of private lands within Spotted Owl Special Emphasis Areas (SOSEAs) as critical habitat; all of these lands were identified as under consideration for exclusion. However, as described in Changes from the Proposed Rule, many of the small, private parcels were removed from the final designation upon a determination that they did not meet the definition of critical habitat, leaving. The remaining areas of private lands in Washington contained in this designation covered by HCPs or SHAs and are private industrial forest lands; these private lands are not currently covered by HCPs or SHAs but are covered under the WDNR Forest Practices Rules (FPR) and largely located in SOSEAs. We have excluded areas covered by HCPs and SHAs because, for the reasons discussed above, the benefits of excluding them outweigh the benefits of including them in critical habitat. We sought to make our designation of private lands in Washington as consistent as possible with Washington State regulations governing forest practices on private lands. Most of the remaining private lands are located only within SOSEAs, areas designated by the State to provide for demographic and/or dispersal support as necessary to complement the northern spotted owl protection strategies on Federal land within or adjacent to the SOSEAs. We find that for these lands, too, the benefits of excluding them in critical habitat outweigh the benefits of including them.
In Washington, any private timber harvest must obtain a permit from, and comply with, the Washington Forest Practices Act (RCW 76.09) as well as the Washington Forest Practices Rules (WAC 222). In the absence of a federally-approved HCP covering northern spotted owls or a State-approved special wildlife management plan, suitable northern spotted owl habitat in State-designated SOSEAs on non-federal lands is protected by the special Washington Forest Practices Rules in State-designated SOSEAs. Within SOSEAs, the Forest Practices rules provide protection for suitable northern spotted owl habitat. The Washington Forest Practices Rules maintain the viability of each northern spotted owl site center by protecting: (a) All suitable spotted owl habitat within 0.7 mile of each spotted owl site center; and (b) a total of 2,605 acres of suitable spotted owl habitat within the median home range circle with a radius of 1.8 miles. Under the rules, proposed forest practices likely to adversely affect spotted owl habitat in either category (a) or (b) above are likely to have significant adverse impacts to the northern spotted owl, and such activities would require a Class IV special forest practices permit and an environmental impact statement per the State Environmental Policy Act. The overarching policy goal of the Washington Forest Practices Rules is to complement the conservation strategy on Federal lands, and as such the SOSEAs are adjacent to Federal lands. SOSEAs are designed to provide a larger landscape for demographic and dispersal support for northern spotted owls. The long-term goal is to support a viable population of northern spotted owls in Washington.
In Washington, the Forest Practices Board (the State regulatory rule-making body) has a long-standing relationship with the Service and collaborates extensively on northern spotted owl conservation. The Service provided extensive technical assistance in the development of the Board's existing northern spotted owl rules. The Board was recognized in Recovery Action 18 in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, p. III-57) for its ongoing owl conservation efforts and encouraged to continue to use its existing processes “to identify areas on non-federal lands in Washington that can make strategic contributions to spotted owl conservation over time. The Service encourages timely completion of the Board's efforts and will be available to assist as necessary.” The Board convened the Northern Spotted Owl Implementation Team (NSOIT). The NSOIT has been tasked to develop incentives for landowners to conserve northern spotted owl habitat, identify the temporal and spatial allocation of conservation efforts on non-federal lands, and make recommendations to the Board, should any rules need to be updated. The NSOIT is also conducting a pilot project testing different thinning prescriptions in northern spotted owl habitat. These efforts have evolved over years of collaboration and are designed to change the dynamic away from fear and resistance to partnership and participation. On November 13, 2012, the Board took another step for northern spotted owl conservation and expanded the scope of the NSOIT to investigate and recommend, in coordination with the Service, voluntary programmatic tools for private landowners to support northern spotted owl conservation and provide regulatory certainty for landowners (WDNR
We find there are minimal benefits to including these lands in critical habitat. The designation of critical habitat
There is minimal incremental benefit from designating critical habitat for the northern spotted owl within private lands covered by the WDNR Forest Practices Rules (FPR) because these lands are already managed for the conservation of the species through the WDNR FPR. The conservation measures provided by that process will provide greater protection to northern spotted owl habitat than the designation of critical habitat, which provides regulatory protections only in the event of a Federal action. In addition, the final rule designation would provide for protection of fewer acres than the existing FPR. The WDNR FPR provides for the needs of the northern spotted owl by protecting and preserving landscape levels of suitable northern spotted owl nesting, roosting, and foraging habitat as well as foraging and dispersal habitat in strategic landscapes, and implementing species-specific conservation measures designed to avoid and minimize effects to northern spotted owls. The WDNR FPR also contains provisions that address ownership changes and provides for the ability to make ongoing adjustments in a number of forms, including active adaptive forest management. The ability to change is crucial to meet new recovery challenges. The Service continues to be work with WDNR to provide technical assistance in the implementation of these rules. The WDNR FPR contains provisions that address ownership changes and the outcomes expected by the Service. Therefore, designation of critical habitat would be redundant on these lands, and would not provide additional measureable protections.
Including lands in a critical habitat designation does serve to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for northern spotted owls. Designation of critical habitat would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances, such as the Washington State Growth Management Act, which encourage the protection of “critical areas” including fish and wildlife habitat conservation areas. Any information about the northern spotted owl and its habitat that reaches a wider audience, including parties engaged in conservation activities, is valuable. However, WDNR, as the State's natural resource agency, is knowledgeable about the species and has made substantial contributions to our knowledge of the species. The additional educational and informational benefits that might arise from critical habitat designation here have been largely accomplished through the public review and comment during reviews of the FPR and associated with the modification of the FPR, and through implementation of the FPR by landowners. The existing public process for FPR development provides for extensive opportunities for engagement in the development and refinement of the rules. The FPR includes intensive public involvement and is frequently a topic of open and public discussion during meetings of the Washington State Forest Practices Board, whose meetings are open to the public and frequently televised. This level of exposure in local newspapers and television stations exceeds the level of education that would come from a designation that would be read by few people in the public. Moreover, the rulemaking process associated with critical habitat designation includes several opportunities for public comment, and thus also provides for public education.
Finally, there may be some ancillary benefits if the designation resulted in changed timber management practices on these private lands. These benefits could include but are not limited to: public safety benefits by increasing resiliency of timber stands, improved water quality, aesthetic benefits, and carbon storage. However, as discussed above, the possibility of a Federal nexus on these private lands is limited, so changes in timber management as a result of critical habitat, and any attendant ancillary benefits, are anticipated to be minimal.
In particular, a benefit of excluding lands covered under the WDNR FPR from critical habitat designation is that it would encourage the State and other parties to continue to work for owl conservation. If lands within the WDNR FPR area are designated as critical habitat, it would also likely have a negative effect on our ability to continue to partner with the WDNR on this conservation. In particular, the WDNR comment letter (WDNR 2012) states that if inclusion of private land is warranted, then WDNR requests that the Service “create and bolster incentive based conservation opportunities for private landowners”. This recognizes the potential negative effects to their
The WDNR FPR provides for significant conservation and management within geographical areas that contain the physical or biological features essential to the conservation of the northern spotted owl and help achieve recovery of this species. Exclusion of private lands already covered under the WDNR FPR will help foster the partnership we have developed with WDNR. Furthermore, this partnership may aid in fostering future cooperative relationships with other parties in other locations for the benefit of listed species.
In summary, we determine that the benefits of excluding private lands already covered under the WDNR FPR from the designation of critical habitat for the northern spotted owl outweigh the benefits of including this area in critical habitat. We find that including these lands would result in minimal, if any, additional benefits to the northern spotted owl, as explained above. The WDNR FPR includes species-specific avoidance and minimization measures, rule enforcement procedures, and forest-management practices and habitat conservation objectives that benefit the northern spotted owl and its habitat, which exceeds substantially minimizes the incremental any conservation value provided as a result of a critical habitat designation. Given the active and ongoing efforts of the State of Washington to address northern spotted owl conservation, we have determined that maintaining our partnership with WDNR, in conjunction with the conservation measures under the WDNR FPR, provides a greater benefit to the northern spotted owl than would the regulatory and educational benefits of critical habitat designation. We also have determined that the potential incremental educational and ancillary benefits of critical habitat designation on lands containing the physical or biological features essential to the conservation of the northern spotted owl would be minimal, because WDNR has already made significant contributions to our understanding of the ecology of the northern spotted owl, and continues to do so through implementation of Recovery Action 18 and through participation in range wide demographic studies.
Our decision to exclude congressionally reserved natural areas and State park lands from this rule is based on the unique circumstances associated with this critical habitat designation. Before making a final decision of whether to exclude congressionally and State reserved natural areas, we weighed the relative benefits and costs a designation of these lands would confer and compared them to the costs and benefits of no designation. Our final decision is that these areas are essential to the conservation of the northern spotted owl, but a designation of these areas in this particular case would confer no current or potential regulatory benefit and a very minor education benefit. The primary habitat threat to the northern spotted owl is from commercial timber harvest. Since commercial timber harvest is not allowed on these lands, there would be little benefit to additional section 7 consultation on effects to critical habitat. We also agree with the National Park Service that a designation would impose some, albeit relatively small, additional administrative costs to land managers who would need to consult with the Service if their actions or programs might affect northern spotted owl critical habitat. Likewise, we find that State Park lands could experience some additional minor administrative costs as a consequence of this designation, especially those State Parks jointly managed with Redwood National Park and those that may use Federal funding for research and monitoring or program and capital improvements. However, we find that even these minimal costs would outweigh the minor informational benefits of including these areas in the critical habitat designation.
A primary purpose of these congressional and State reserved natural areas is to conserve natural ecosystems, including those of the northern spotted owl and its habitat, and educate the public regarding the conservation of these areas. Unlike other Federal and State lands that have multiple use mandates that include commercial harvest of timber in the range of the spotted owl, such as National Forests, State Forests, and forests managed by the BLM, these reserved natural areas are unlikely to have uses that are incompatible with the purposes of critical habitat because the primary threat to spotted owl critical habitat—commercial timber harvest—is prohibited on these lands. These natural areas are managed under explicit Federal and State laws and policies consistent with the conservation of the northern spotted owl, and there is generally little or no timber management beyond the removal of hazard trees or fuels management to protect structures, roads, human safety, and important natural attributes. For example, the Wilderness Act provides conservation for the northern spotted owl because it prohibits commercial activities unrelated to wilderness recreation. Thus, not only is commercial timber harvest directly barred on these Federal lands, but the Wilderness Act also precludes the construction of roads and most uses of mechanical equipment. 16 U.S.C. 1133. The fundamental purpose of the National Park System, established by the Organic Act and reaffirmed by the General Authorities Act, as amended, begins with a mandate to conserve park resources and values. This mandate is independent of the separate prohibition on impairment and applies with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired.
Similarly, all of the State Parks lands proposed for exclusion occur in California except for 104 ac (42 ha) in Washington. California State Parks are managed by the California Department of Parks and Recreation. This Agency's mission is to “administer, protect, provide for recreational opportunity, and develop the State Park System * * *” We are unaware of any commercial timber harvests in California or Washington State Parks.
Therefore, any habitat-disturbing activities that might occur as the land managers carry out their conservation programs (e.g., trail maintenance, education and outreach, operations and maintenance, etc.) are likely to be relatively minor and are unlikely to be regulated by a critical habitat designation. On the Federal reserved lands, the section 7 prohibition on the destruction or adverse modification of critical habitat would be redundant and unlikely to add any protection to these important habitat areas. Likewise, many of these State Parks have close working relationships with Federal agencies and may experience, through those Federal partners, a section 7 nexus or other administrative costs if the States utilize Federal funds or require a Federal permit for their activities. For example, several State Parks in California (i.e., Del Norte Redwoods, Prairie Creek Redwoods, and Jedediah Smith Redwoods) are jointly managed with Redwood National Park through an agreement signed in 1994. In the San Francisco Bay Area, the National Park Service manages an inventory and monitoring program that includes actions by State Parks and other Federal partners such as the U.S. Geological Survey. Further, land managers monitor spotted owl territories within these reserved areas as part of long term population monitoring efforts, and barred owl populations are also monitored as part of spotted owl recovery efforts. For example, spotted owl territories in Crater Lake National Park have been monitored since 1992, and there are multiple spotted owl monitoring and conservation efforts occurring in many these parks throughout the species' range. A critical habitat designation on these State Parks may introduce some additional administrative costs but confer no increase in regulatory protection. Therefore, we believe there would be no regulatory benefits to inclusion of these lands in critical habitat.
We also believe that a critical habitat designation for these specific natural areas would confer minimal additional educational benefit toward spotted owl conservation. These areas are generally well known for their value to the conservation of listed species due to the education and communication programs of the natural area management agencies during the time since the listing of the spotted owl. Educational materials are distributed and other communication programs occur regarding the conservation of late successional forests and the species that inhabit them such as the spotted owl (see, e.g., Olympic National Park Web site featuring spotted owl information at
The final economic analysis (FEA) (IEC 2012b) quantified this potential for an increase in administrative costs, and they described the potential indirect impacts due to time delays for project processing and regulatory uncertainty. The analysis states, “While critical habitat is not expected to generate changes to forest management practices or to testing or training missions on NPS or DOD lands, these areas may be subject to new or increasingly complex section 7 consultations as a result of critical habitat designation. Activities that may involve section 7 consultations include the construction or maintenance of visitor facilities on NPS lands and access roads to projects or military training including the use of vehicles, explosives, and soldiers. DOD and NPS will likely experience an additional administrative burden to provide biological assessments for projects in consultations with the Service as a result of critical habitat designation” (IEC 2012b, p. 4-4). The FEA forecast an additional 16 informal consultations with NPS on planned or ongoing recreation and habitat management projects (IEC 2012b, p. 4-27). (Although the text refers to the NPS lands, the same rationale generally applies to other federally reserved lands in the proposed exclusion.) The FEA did not quantify the potential for direct incremental economic impacts on State Park lands, but it does identify the potential for indirect impacts due to time delays and regulatory uncertainty. Again, it is expected that these impacts would be relatively minor, but they nevertheless are not offset by a proportional increase in conservation benefits that would accrue as a consequence of this critical habitat designation on these lands.
After weighing these relative costs and benefits, the Secretary has chosen to exercise his discretion under Section 4(b)(2) of the Act to exclude these lands from final critical habitat. As part of this review we have determined the Federal agencies are managing these reserved natural areas under statutes that already impose a clear conservation mandate consistent with the specific needs of the northern spotted owl, and a critical habitat designation would confer no additional conservation benefits to the spotted owl that offset the potential increase in administrative costs. In making this decision, we also note the historic role of congressionally and State reserved natural areas as part of northern spotted owl critical habitat. In 1992, the Service concluded that certain congressionally reserved parks and wilderness areas were essential to spotted owl conservation, but we declined to include these lands in the final designation of critical habitat because their current classification and management was deemed adequate to meet spotted owl conservation goals (January 15, 1992; 57 FR 1796, p. 1806). Likewise, in 2008, the Service revised northern spotted owl critical habitat and again concluded that congressionally reserved natural areas would not be included in final critical habitat for the same reasons as those identified in the 1992 decision (August 13, 2008; 73 FR 47325, p. 47334). Although not a factor in this section 4(b)(2) weighing, this determination will maintain the consistent management approach for spotted owls that has occurred on these lands over the last 20 years and should minimize the potential for confusion among land managers and the public.
This analysis is based in large part on the particular conservation requirements of the northern spotted owl and is specific to this designation. Thus, our determination that the benefits of exclusion outweigh the benefits of inclusion in this case does not necessarily have a bearing on future critical habitat designations.
We have determined that exclusion of approximately 4,056,759 ac (1,641,777 ha) of lands from this final designation of critical habitat will not result in extinction of the northern spotted owl. We have excluded these areas based, in part, on the significant conservation benefits afforded to the northern spotted owl and its habitat on these lands through the positive conservation measures provided through SHAs, HCPs, or other agreements with private landowner partners with a proven track record of conservation actions. Each of these agreements, as discussed here, provides significant conservation benefits to the species in terms of maintaining, enhancing, or recruiting additional suitable habitat for the northern spotted owl, and implementing species-specific conservation measures designed to avoid and minimize impacts to northern spotted owls. Further, for projects having a Federal nexus and affecting northern spotted owls in the excluded areas, all of which are occupied by the species, the jeopardy standard of section 7 of the Act provides a level of assurance that this species will not go extinct as a result of excluding these lands from the critical habitat designation. The species is also protected by section 9 of the Act, which prohibits the take of listed species. Congressionally and State reserved natural areas excluded are managed under State and Federal law and policy to provide for the conservation of species and their natural habitat, including the northern spotted owl. These lands will continue to be
In accordance with the Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (November 6, 2000, and as reaffirmed November 5, 2009); and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we believe that fish, wildlife, and other natural resources on Indian lands may be better managed under Indian authorities, policies, and programs than through Federal regulation where Indian management addresses the conservation needs of listed species. In addition, such designation may be viewed as unwarranted and an unwanted intrusion into Indian self-governance, thus compromising the government-to-government relationship essential to achieving our mutual goals of managing for healthy ecosystems upon which the viability of threatened and endangered species populations depend.
In developing the proposed revised critical habitat designation for the northern spotted owl, we considered inclusion of some Indian lands. As described in the above section Criteria Used to Identify Critical Habitat, and detailed in our supporting documentation (Dunk
Although some Indian lands identified in our habitat modeling demonstrated the potential to contribute to the conservation of the northern spotted owl, our analysis did not suggest that these areas were essential to conserve the northern spotted owl. This determination was based on our relative evaluation of the various habitat scenarios under consideration; if the population performance results from our habitat modeling indicated that we could meet the recovery goals for the species without relying on Indian lands, we did not consider the physical or biological features on those lands, or the lands themselves, to be essential to the conservation of the species, therefore they did not meet our criteria for inclusion in critical habitat. Our evaluation of the areas under consideration for designation as critical habitat indicated that we could achieve the conservation of the northern spotted owl by limiting the designation of revised critical habitat to other lands. Therefore, no Indian lands are included in the revised designation of critical habitat.
We requested written comments from the public on the proposed revised designation of critical habitat for the northern spotted owl during an initial 90-day public comment period, which opened with the publication of the proposed revised rule on March 8, 2012 (77 FR 14062), and closed on June 6, 2012. On June 1, 2012, we published the notice of availability of the draft economic analysis and draft environmental assessment associated with the proposed revised designation of critical habitat (77 FR 32483), and extended the comment period for the proposed rule an additional 30 days, through July 6, 2012, thereby providing a total comment period of 120 days. In addition, we held two public information meetings in Redding, California on June 4, 2012; two in Tacoma, Washington, on June 12, 2012; one in Portland, Oregon on June 20, 2012; and two in Roseburg, Oregon, on June 27, 2012. We also held a public hearing in Portland, Oregon, on June 20, 2012. In addition, we contacted appropriate Federal, State, County, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule, draft economic analysis, and draft environmental assessment during these comment periods. In addition, in response to requests from several Counties, and to ensure that all affected Counties and State fish and wildlife agencies in Washington, Oregon, and California were able to thoroughly review and comment as provided by section 4(b)(5)(A)(ii) of the Act, the Service provided an additional opportunity for those entities to comment until August 20, 2012.
During the comment period(s), we received over 33,000 comments (many of which were form letters), directly addressing the proposed revised critical habitat designation. During the June 20, 2012, public hearing, eight individuals or organizations provided comments on the proposed revised designation. All substantive information provided by commenters has either been incorporated directly into this final designation or addressed below. Comments received were grouped into general categories specifically relating to the proposed revised critical habitat designation, and are addressed in the following summary, and incorporated into the final rule as appropriate. We received a number of highly technical comments regarding the modeling process used to develop critical habitat. These technical questions are addressed in the final Modeling Supplement (Dunk
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from 40 knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from 15 of the peer reviewers.
We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the northern spotted owl. The peer reviewers generally supported the modeling process used to inform the identification of critical habitat and the resulting size and distribution of the proposed revised designation. Reviewers were divided on the risks posed by climate change and forest health, and whether active management should be applied within critical habitat.
We asked reviewers to address a number of specific questions with regard to the proposed rule. The questions posed to the peer reviewers and a summary of their responses are provided below; peer reviewer comments, clarifications, and suggestions have been incorporated into the final rule as appropriate. Our responses to issues raised by the peer reviewers are presented in the subsequent summaries of comments and responses.
A number of peer reviewers had additional comments about the concept of active management. Since the preambles to the proposed and final rules discuss this concept, we have addressed their comments below. However, we emphasize that this rule does not take any action or adopt any policy, plan or program in relation to active forest management. The discussion is provided only for consideration by Federal, State, and local land managers, as well as the public, as they make decisions on the management of forest land under their jurisdictions and through their normal processes.
Additional peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
Here we provide a summary of general comments received on the modeling process that we used, in part, to identify revised critical habitat for the northern spotted owl. The habitat modeling framework we utilized was originally developed for the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011), and Appendix C of the Revised Recovery Plan provides a detailed description of the modeling framework and the extensive testing and cross-validation that was done at each stage of development. In addition, we note that the modeling framework that we applied here to assist in the identification of critical habitat for the northern spotted owl was independently the subject of prior peer review and public comment for the recovery plan. Particularly detailed or technical comments on the habitat modeling that we received in relation to this critical habitat rule are addressed separately in our Modeling Supplement, Dunk
Efficiency never trumped owl performance in our selection process; the population performance of the northern spotted owl in response to the scenarios evaluated was our first concern. However, given two or more nearly equal population performance outcomes, we did look for efficient solutions; that is, given the choice between two nearly equivalent habitat networks in terms of northern spotted owl population performance, we chose the network that achieved roughly the same level of performance provided by a relatively greater proportion of public lands or smaller overall designation. Old forest habitat and areas of high RHS are nearly identically represented in the largest networks we evaluated (Z70, Composites 1, 3, 4, and 7).
As described in detail in Appendix C, we selected the GNN vegetation database for a number of reasons; most importantly it is the layer developed for use in the Northwest Forest Plan monitoring program. In addition, it is the only vegetation layer available that covers all land ownerships across the entire range of the northern spotted owl. Past efforts to model, map, and quantify habitat selection by northern spotted owls at regional scales have often suffered from lack of important vegetation variables, inadequate spatial coverage, or coarse resolution of available vegetation databases (Davis and Lint 2005). To develop rangewide models of relative habitat suitability for northern spotted owls, we required maps of forest composition and structure of sufficient accuracy to allow discrimination of attributes used for nesting, roosting, and foraging by northern spotted owls (the essential physical or biological features). GNN, developed for the NWFP's effectiveness monitoring program, provides detailed maps of forest composition and structural attributes for all lands within the NWFP area (coextensive with the range of the northern spotted owl). Although the GNN approach is a method for predictive vegetation mapping, it is based on input of empirical forest attribute data from inventory plots (Forest Inventory and Analysis, current vegetation analysis, etc.) and modeled relationships between plots and predictor variables from Landsat thematic mapper imagery, climatic variables, topographic variables, and soil parent materials.
The GNN maps come with a large suite of diagnostics detailing map quality and accuracy; these are contained in model region-specific accuracy assessment reports available at the LEMMA Web site (
The GNN vegetation database was specifically developed for mid-to large-scale spatial analysis, suggesting that accuracies at the 30-m pixel scale may be less influential to results obtained at larger scales. Because we were interested in the utility of GNN at our analysis area (500 ac (200 ha)) spatial scale, we additionally conducted less formal assessments where we compared the distribution of GNN variable values at a large sample of actual locations (known northern spotted owl nest sites and foraging sites) to published estimates of those variables at the same scale. In addition, we received comparisons of GNN maps to a number of local plot-based vegetation maps prepared by various field personnel. Based on these informal evaluations, we determined that GNN represents a dramatic improvement over past vegetation databases used for modeling and evaluating northern spotted owl habitat, and used GNN maps as the vegetation data for our habitat modeling.
Our primary objective in Step 1 of the modeling process was to develop MaxEnt models that perform well at predicting northern spotted owl habitat by developing models that had good discrimination ability, were well calibrated, were robust, and had good generality. Our detailed evaluations of model performance, cross-validation, and comparison with independent data sets (described in pages C-30 to C-41 in Appendix C of the Revised Recovery Plan) demonstrate that at the scale MaxEnt models were developed and evaluated, we met these objectives. Acknowledging that all vegetation databases will exhibit some degree of error, if the GNN layer was inadequate for predicting northern spotted owl habitat, we would not expect the reliable predictive models that we obtained. Thus, as described above, given our data needs, we believe the GNN database represents the best available information for the purposes of identifying critical habitat for the northern spotted owl. We are unaware of any alternative existing scientific information, and no viable suggestions were offered by reviewers or commenters.
We are uncertain about what “inherent problems with MaxEnt” the reviewer may be referring to; MaxEnt has been thoroughly evaluated in the scientific literature and found to perform very well for predicting species distributions and habitat suitability. Peer-reviewed papers by Elith
Based on our modeling process, we found that northern spotted owl population performance under a habitat network represented by the 1994 NWFP was relatively poor compared with several other reserve designs (Dunk
To identify the areas that meet the definition of critical habitat for the northern spotted owl, we elected to use a spatially explicit, individual-based modeling approach. We did so because we required an approach that enabled comparison of a wide range of spatially explicit conditions such as variation in habitat conservation networks. Individual-based models allow for the representation of ecological systems in a manner consistent with the way ecologists view such systems as operating. That is, emergent properties such as population increases or declines are the result of a series of effects and interactions operating at the scale of individuals. Individuals select habitat based on what is available to them, disperse as a function of their individual circumstance (age), compete for resources, etc.
Grimm and Railsback (2005) noted that individual-based models need to be simple enough to be practical, but have enough resolution to capture essential structures and processes. We are fortunate to have a tremendous quantity and quality of data available for the northern spotted owl; the species is therefore ideally suited for a spatially-explicit, individual-based model, such as HexSim. While not developed specifically for the northern spotted owl, HexSim (Schumaker 2011) was designed to simulate a population's response to changing on-the-ground conditions by considering how those conditions influence an organism's survival, reproduction, and ability to move around a landscape. We developed a HexSim spotted owl scenario based on the most up-to date demographic data available on spotted owls (Forsman
A key difference between using active adaptive forest management to evaluate risks associated with ecological forestry and the Service's ongoing efforts to address risks associated with expanding barred owl populations is that, for barred owls, a single experiment has the potential to address many of the most important uncertainties pertinent to future management, allowing the Service to define a schedule for progress. Addressing uncertainties about ecological forestry will likely require multiple research efforts, each tailored to specifics of different geographic areas and different ecological interactions. Collaboration among programs, similar to the collaboration supporting long-term demographic studies of northern spotted owls, will likely be needed to conduct adaptive management studies of habitat treatments. Integrative initiatives, such as the USFS's Collaborative Forest Landscape Restoration Program, may also play an important role. Adaptive management of ecological forestry techniques will take time, and will require continuation of the ongoing dialogue between researchers and forest management practitioners regarding how to simultaneously meet the goals of forest restoration and northern spotted owl conservation. Coordination among research projects also will be essential to generating reliable information about diverse interactions as efficiently as possible.
Such management considerations are completely consistent with the intent of the NWFP (Standards and Guidelines, p. C-12—C-13). We continue to recommend that land managers carefully distinguish and target areas that are high priority for ecological restoration (e.g., Franklin
We agree with the majority of scientists who suggest that forest ecosystems at global, national, and regional levels are undergoing significant changes due to climate change and past management activities (Collins
Section 3(5)(A) of the Act states that critical habitat is defined as (1) the specific areas within the geographical area occupied by the species at the time it was listed that provide the physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species at the time it was listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Further, section 4(b)(2) of the Act mandates that such determinations shall be made on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.
The language of the Act does not restrict the designation of critical habitat to specific land ownership such as Federal lands; thus, lands of all ownerships are considered if they meet the definition of critical habitat. Areas may be excluded from the final designation if the Secretary finds that the benefits of exclusion outweigh the benefits of inclusion under section 4(b)(2) of the Act, or if we determine, based on public comment or other information received following the issuance of the proposed rule, that such areas do not meet the definition of critical habitat (for example, areas that were occupied at the time of listing but do not provide the essential physical or biological features, or areas that may not have been occupied at the time of listing and were proposed for designation, but are not essential to the conservation of the species).
As described in the proposed rule (March 8, 2012; 77 FR 14076, p. 14099), we evaluated critical habitat scenarios that prioritized Federal lands first as well as scenarios without regard to land ownership in determining what is
We retained some State-owned lands in all three states included in this critical habitat designation. In general we retained these lands because we found they provided essential contributions to the conservation of spotted owls, especially in terms of complementing the distribution of habitat on Federal lands or filling gaps in Federal ownership. We also found that the benefits of inclusion associated with public education and raising State and local agency awareness of the conservation needs of spotted owls outweighed anticipated minor increases in regulatory requirements, when Federal involvement occurred. See Changes from the Proposed Rule for more information on State lands retained in the final critical habitat designation.
The Service does not compensate private or State landowners for perceived limitations on land use associated with critical habitat designation. Designation of private or other non-Federal lands as critical habitat has no regulatory impact on the use of that land unless there is Federal involvement in proposed management activities. Identifying non-Federal lands that are essential to the conservation of a species alerts State and local government agencies and private landowners to the value of habitat on their lands, and may promote conservation partnerships. There is no indication that Congress intended the Service to acquire all private and State property that is essential to the conservation of listed species and designated as critical habitat.
We provided advance public notice of the proposed rule to revise critical habitat for the northern spotted owl through several avenues. Notice was provided with publication of the proposed rule in the
On the other hand, numerous commenters (both from other State agencies, as well as the public) supported the inclusion of public lands including Federal lands, State lands, tribal lands, and county lands for a variety of reasons, highlighting the conservation the value of this habitat, consistency with the best available science, the need for increased protections in some lands, and the realization there would be limited to no impacts to management.
Where possible we prioritized the inclusion of Federal lands over other land ownerships, but where Federal lands were sparse or nonexistent we incorporated other ownerships in order
Our proposed rule (77 FR 10462; March 8, 2012) identified several different possible outcomes of that proposed revision, depending on various areas considered for exclusion. Among the exclusions of public lands under consideration were all congressionally-reserved natural areas and all State lands. Of the congressionally-reserved natural areas under consideration, we have excluded all congressionally-reserved natural areas and State Parks from this final designation (see Exclusions). In addition, private lands were also excluded, following a careful analysis of the benefits of inclusion versus exclusion. In other cases, lands were retained in the final designation for a variety of reasons; for lands that were considered or proposed for exclusion, but not excluded in this final designation, those decisions are described in the section Changes from the Proposed Rule.
We recognize the concern over the inclusion of certain Federal lands in the designation of critical habitat for the northern spotted owl, and particularly of lands in the matrix land use allocation or the O&C lands. As described in the section Criteria Used to Identify Critical Habitat and elsewhere in this rule, we looked to Federal lands first for the conservation of the northern spotted owl, in part because Federal agencies have a statutory mandate to contribute to the conservation of listed species. Secondly, because the protections of critical habitat are triggered only in the case of a Federal nexus, those protections are always in place on Federal lands; thus the benefit of including Federal lands in critical habitat can potentially be significant. Finally, we only included lands in the designation if they meet the definition of critical habitat; that is, if they play a truly essential role in the conservation of the species. In some areas, for example the O&C lands, our modeling results indicated that those Federal lands make a significant contribution toward meeting the conservation objectives for the northern spotted owl in that region, and that we cannot attain recovery without them. Likewise, in addition to our modeling results, peer review of both the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) as well as our proposed rule to revise critical habitat, suggested that retention of high quality habitat in the matrix is essential for the conservation of the species. Population performance based on reserves under the NWFP, for example, fared very poorly compared to this final designation of critical habitat. As described in the section Changes from the Proposed Rule, we tested possible habitat networks without many of these matrix lands, which resulted in a significant increase in the risk of extinction for the northern spotted owl.
Similarly, for the reasons outlined above, we have retained experimental forests on Forest Service lands in critical habitat. This designation includes areas within seven Forest Service experimental forests: H.J. Andrews Experimental Forest, Pringle Falls Experimental Forest, South Umpqua Experimental Forest, and Cascade Head Experimental Forest in Oregon; Wind River Experimental Forest and Entiat Experimental Forest in Washington; and Yurok Redwood Experimental Forest in California. Three of these seven experimental forests are already included in the 2008 critical habitat designation. Our evaluation of these seven experimental forests demonstrates that these areas contain high value occupied habitat for northern spotted owls within their borders. In many cases, the habitat in these experimental forests represents essentially an island of high value habitat in a larger landscape of relatively low value habitat; this is especially true in the Coast Range, a region where peer reviewers particularly noted a need for greater connectivity and preservation of any remaining high quality habitat. These considerations, in conjunction with the inherent benefits of critical habitat on Federal lands, described above, lead us to conclude that there are significant benefits to the inclusion of these experimental forests in critical habitat. As discussed earlier in this document, we recognize the valuable role of these experimental forests, and we encourage continued research and adaptive management on these forests. All of these forests are occupied by the northern spotted owl and we are already consulting with the Forest Service in these areas under the jeopardy standard. The incremental impact of critical habitat is therefore limited to the cost of consultation for the additional adverse modification analysis and any potential project modifications to avoid adverse modification or destruction, if needed; we did not consider the benefit of avoiding these costs through exclusion to outweigh the benefits of inclusion for these areas. As noted in this document, we fully support the research activities in these experimental forests and intend to continue working cooperatively with the Forest Service to ensure the successful continuation of their scientific mission in these areas.
In sum, the best scientific information available indicates that the Federal lands we have included in this final designation are essential to the conservation of the species, and we have retained such areas in the final designation.
We recognize that the greatest benefit of critical habitat is realized on Federal lands since the regulatory effect of critical habitat is the requirement that Federal agencies ensure that any actions that they carry out, fund, or authorize do not destroy or adversely affect designated critical habitat. In addition, Federal agencies have a mandate under section 7(a)(1) of the Act to carry out programs for the conservation of endangered species and threatened species. For these reasons, we looked first to Federal lands for the critical habitat essential to the conservation of the northern spotted owl, as described in Criteria Used to Identify Critical Habitat, above, and supporting methodology (Dunk
Section 3(5)(A) of the Act states that critical habitat is defined as (1) the specific areas within the geographical area occupied by the species at the time it was listed that contain the physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species at the time it was listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Further, section 4(b)(2) of the Act mandates that such determinations shall be made on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat.
The language of the Act does not restrict the designation of critical habitat to specific land ownership such as Federal lands; thus, lands of all ownerships are considered if they satisfy the scientific criteria indicating that they meet the definition of critical habitat for the specific species. Areas may be removed from the final designation should the Secretary exercise his discretion to exclude such areas subsequent to a weighing of the benefits of exclusion versus inclusion under section 4(b)(2), or if we should determine, based on public comment or other information received following the issuance of the proposed rule, that such areas do not meet the definition of critical habitat (for example, areas that were occupied at the time of listing but do not provide the essential physical or biological features, or areas that may not have been occupied at the time of listing and were proposed for designation, but are not essential to the conservation of the species).
As described in the proposed rule (March 8, 2012; 77 FR 14076, p. 14099), we evaluated critical habitat scenarios that prioritized Federal lands first as well as scenarios without regard to landownership. In all cases, if the scenarios under consideration provided equal contribution to recovery, we chose the scenario that prioritized publicly owned lands. State and private lands were included only if they were essential to achieve conservation of the species after considering the contribution of Federal lands. Based on information received during the public comment period, in several cases we refined the critical habitat boundaries to remove areas of private lands that do not meet our criteria for critical habitat (for example, new information indicating that the areas in question lack the PCEs, due to recent timber harvest, stand-replacing fires, or other such events). In others, the Secretary has chosen to exclude lands from the designation. In such cases, exclusion does not signal a determination that these areas are not essential to the conservation of the species, but only that the Secretary has determined that the benefits of exclusion outweigh those of inclusion. All congressionally-reserved natural areas (wilderness areas, national parks), State parks, and private lands have been excluded from this final designation of critical habitat for the northern spotted owl (see Exclusions).
We reduced critical habitat in all four of these counties across all ownerships as we refined our proposal. In response to comments, we used additional information sources to very carefully identify and retain areas that were best suited to meeting the unique
The Columbia River, which forms the southern boundaries of Skamania and Klickitat counties, presents a formidable obstacle to dispersal of northern spotted owls. Maintaining demographic exchange between northern spotted owl populations in Washington and Oregon requires both maintenance of a robust population of potentially dispersing owls, and quality habitat as near to the Columbia River as possible to increase the likelihood of dispersing owls successfully crossing the river. Critical habitat in Skamania and Klickitat counties plays a key role in preventing the demographic isolation of Washington spotted owls, and preventing isolation is widely recognized as an essential feature of sustaining wildlife populations. The designated lands in Wasco County, Oregon, contribute to this cross-Columbia River connection, as well as providing sites for northern spotted owl reproduction. In Del Norte County, California, designated lands contribute to demographic support to the overall northern spotted owl population, but also function for connectivity across the landscape and for habitat that can be colonized by young owls. In short, the designated lands in all these counties are part of a network that supports northern spotted owl sites for reproduction, habitat available for colonization by young, and habitat that connects populations across the range of the species, all of which are, in concert, essential to provide for the conservation of the species.
Our economic analysis indicated that Del Norte and Skamania counties may be more sensitive to future changes in timber harvests, industry employment, and Federal land payments, due to recent socioeconomic trends. Timber harvest changes related to critical habitat designation are one potential aspect of this sensitivity. Between 1989 and 2009, timber industry employment declined by 70 percent or more in Del Norte and Skamania counties. These counties also experienced the greatest declines in timber harvests and timber industry employment. Skamania County is also highly reliant on Federal payments to counties, with these payments representing between 26 and 50 percent of total revenues. We considered all these factors while evaluating comments from these counties.
The potential impact of the designation of critical habitat on timber harvest levels, and whether that change will be positive or negative, is uncertain. Therefore, how critical habitat designation may impact the timber industry in terms of future harvest levels, employment, and revenue-sharing payments to counties is also uncertain. As outlined in the economic analysis timber harvest may increase, decrease or stay substantially the same as recent timber harvest levels depending on how the Forest Service and BLM decide to manage their lands within the designation. Furthermore, timber industry employment is affected not only by harvest trends but also by fluctuations in national and international markets; changes in land ownership; and increasing mechanization and productivity in the industry. Our economic analysis also indicated the potential for beneficial economic and ancillary effects of spotted owl conservation due to critical habitat designation, but monetizing effects such as improved water quality and aesthetic improvements remains challenging. Finally, our analysis of the incremental impacts of critical habitat designation suggested that the annual administrative costs associated with designation were likely to be relatively low.
Our weighing of the relative benefits of inclusion in critical habitat integrated (1) the relative sensitivity of counties to economic impacts associated with critical habitat designation, (2) uncertainty regarding potential economic effects, (3) our expectation that incremental administrative costs may be minor, and (4) modeling results that indicated essential conservation functions of habitat in these counties. Based on these factors the Secretary has chosen not to exert his discretion to exclude these lands from critical habitat.
In our separate actions investigating possible barred owl management, we can, and are, modeling some approaches with and without barred owl competition effects on the northern spotted owl, and will continue to do so as new information becomes available. Recent research (Wiens 2012) indicates that population performance of both northern spotted owls and barred owls is greatest when high-quality habitat is most abundant, and most peer reviewers supported the approach of conserving more habitat to help offset the impact of the barred owl on the northern spotted owl.
The draft economic analysis (DEA) addressed the potential impacts of critical habitat on fire management in Chapters 4 and 8. In Chapter 4, the DEA discussed the fact that ecological fire salvage activities could result in incremental economic effects. Due to data limitations and fire location uncertainty, however, these effects were not quantified. In the benefits discussion in Chapter 8, the DEA recognized that it is possible that the designation could result in increased resiliency of timber stands associated with improved timber management practices, such as thinning, partial cutting, and active adaptive forest management and monitoring. These efforts may reduce the threat of catastrophic events such as wildfire, drought, and insect damage. This in turn may generate benefits in the form of reduced property damage.
The purpose of the economic analysis is to provide the Secretary of the Interior with information to consider potential economic impacts and analyze whether the benefits of excluding a particular area may outweigh the benefits of including that particular area as critical habitat based on potential disproportionate economic impacts. Chapter 6 of the FEA provides a detailed socioeconomic profile of each of the 23 counties (including Klickitat County, Washington) containing proposed critical habitat subunits. The analysis presents data on the percent change in timber production between 1990 and 2010 for each county, and on the percent growth of annual industry employment between 1989 and 2009 for each county. In addition, the analysis presents data on Federal land payments to each of the 23 counties as a percent of the total local government revenue in FY 2009, demonstrating the relative importance of these funds to each County's budget. We find the information provides sufficient context for understanding relative economic circumstances and the potential incremental impacts of the designation to local communities across the designation.
The section “Consistency with Presidential Directive” in our Executive Summary describes how we have addressed the points raised in President Obama's Memorandum of February 28, 2012.
The existing information about the tradeoffs associated with active and passive management in dry forests indicates that strategic application of active management may offer a higher likelihood of achieving conservation objectives than no management. Although passive management can be viewed as more precautionary, this view is rooted in a perspective that considers risks to northern spotted owl habitat from natural disturbance to be relatively low. However, we believe that the weight of evidence from both tracking of habitat removal due to natural disturbance and results from modeled simulations of fire dynamics suggest that risks of habitat loss due to natural disturbance is high enough to warrant consideration of strategic active management within critical habitat by land managers, especially in forested plant associations that typically have frequent or mixed-severity fire regimes (Buchanan 2009, pp. 114-115; Healey
We received several comments from private landowners expressing concern that their land uses would be restricted by the designation of critical habitat, or that jobs would be lost if critical habitat is designated on private lands. Some landowners were under the false impression that their access to Federal funds would be restricted, or that they would be unable to complete forest health improvement projects on their lands if critical habitat were designated there. We reiterate that the regulatory effect of critical habitat is the requirement for Federal agencies to consult with the Service on actions they carry out, fund, or authorize that may affect the designated critical habitat of endangered or threatened species. Activities can continue on private lands with critical habitat in place; it is only if Federal funding or permits are required that the Federal agency involved would need to consult with the Service to insure that the proposed action does not destroy or adversely modify critical habitat. However, as a consequence of the exclusion of all private lands from this final designation of critical habitat for the northern spotted owl, concerns such as those expressed above should be moot.
The only other potential regulatory impact to private landowners which we would foresee from the designation of northern spotted owl critical habitat may occur when a proposed project has a Federal nexus (e.g., Federal funding or authorization) and the project may affect designated critical habitat. However, as all private lands have been excluded from this final designation of critical habitat, this should no longer be a concern.
The Service is unaware that the designation of critical habitat for the marbled murrelet, California red-legged frog, California tiger salamander, or the western snowy plover has led to any increase in regulatory impacts to private landowners. While private landowners may have experienced an increased regulatory burden with the listing of these species under the Endangered Species Act, we are not aware of an increased regulatory impact associated with the designation of critical habitat for these species.
Lands excluded under section 4(b)(2) are still considered essential to the conservation of the species. Such areas were identified as critical habitat because they either provide the essential physical or biological features, if occupied, or were otherwise determined to be essential, if unoccupied. Exclusion should never be interpreted as meaning that such areas are unimportant to the conservation of the species. Exclusion is based upon a determination by the Secretary that the benefit of excluding these essential areas outweighs the benefit of including them in critical habitat.
In this case, the Secretary has chosen to exercise his discretion to exclude non-Federal lands from the final designation of critical habitat if an existing conservation agreement or partnership is in place that provides benefits that are greater than the benefits
Some landowners asked for exclusion from the proposed critical habitat, but were not actually included in the proposed designation in the first place. An example of such a case is Merrill and Ring lands. In other cases, commenters did not submit sufficient location information for us to be certain of the location of the parcel in question; Wauna Lake Club, for example, fell into this category.
In cases where mapping errors may have been made in our proposed critical habitat designation, such that lands that do not meet the definition of critical habitat for the northern spotted owl were inadvertently included within the proposed designation, the mapping in the final rule was corrected, so that those lands are removed from the final designation. Sierra Pacific lands in California, for example, were inadvertently included in the proposed designation due to a mapping error; these lands were removed from the final designation. We similarly made any corrections to area total errors that were identified in comments on the proposed rule, and thank landowners for bringing these corrections to our attention.
All specific requests for exclusion and records of our consideration of those requests are in our record, and available upon request (see
We removed from the final critical habitat designation lands described in 17 comments after confirming that these lands did not contain the PCEs, or that they were too small, fragmented, or isolated to contribute to spotted owl conservation, and therefore did not meet the definition of critical habitat. Lands owned by 19 other commenters that requested removal were not within proposed critical habitat. The land of one commenter was removed to correct a mapping error in the proposed rule. We excluded another commenter's lands due to their completion of a SHA. Finally, 16 commenters did not provide sufficient location information to enable us to unambiguously identify their parcels. Of these 16, we inferred that we likely removed 6 from the final critical habitat designation because the size of the commenters' parcels were very small, making it likely that our process of removing small forest landowners from the final designation included the properties of these commenters. For the remaining 10 commenters, lack of location and parcel size information in
We agree that the rule should designate either (1) specific areas within the geographical area occupied by the species at the time of listing that contain physical or biological features essential to the conservation of the species and which may require special management considerations or protection, or (2) specific areas outside the geographical area occupied at the time of listing that are essential to the conservation of the species. We have identified the specific areas that were occupied at the time of listing through historical surveys. We have determined that other areas were occupied at the time of listing (based on the presence of suitable habitat as well as the high probability that nonterritorial and dispersing subadult owls were present). In addition, we analyzed all areas as if they were not occupied and applied the standard applicable to unoccupied habitat. We used the methodology described in both the proposed and final rules to determine which unoccupied areas are essential to the conservation of the species, and have explained why unoccupied habitat in each subunit is essential to the conservation of the species.
For occupied areas, the attributes of forest composition and structure, and characteristics of the physical environment associated with nesting, roosting, and foraging habitat—physical or biological features used by the species—were identified based on published research results and expert opinion and incorporated into a predictive habitat model. We determined that, for the most part, the physical or biological features supporting these known sites are essential to the conservation of the species (the exceptions are owl sites that were isolated or in areas of marginal quality). The special management considerations are described by geographic region and in the subunit descriptions. However, large areas within the species' geographical range had not been surveyed at the time of listing, and we have determined that a designation based solely on the locations of those known territories would not be adequate to conserve the species. Therefore, we used habitat information based on habitat selected by those known owl pairs to identify other areas that were likely supporting northern spotted owl territories at the time of listing or that could support the species' recovery in the future. We then determined where these areas are essential to conservation of the species based on a spatially explicit northern spotted owl population model as described in the proposed rule, and again in this final rule.
The Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) recommends active management of some forest lands using ecological forestry approaches in appropriate stands such that we believe there are widespread opportunities for continued
The proposed rule did not say that “substantially all of the occupied and unoccupied area is necessary.” The proposed rule explained how much of each subunit was occupied based on historical survey data, and why the areas of potentially unoccupied habitat in each subunit are essential to the conservation of the species. In addition, the methodology used to determine what is essential was explained in the proposed rule and this final rule.
For the purpose of developing and evaluating revised critical habitat for the northern spotted owl, we used a definition of “geographical area occupied by the species” at the time it was listed consistent with the species' distribution, population ecology, and use of space. We based our identification of “occupied” geographical area on: (1) The distribution of verified northern spotted owl locations and (2) scientific information regarding northern spotted owl population structure and habitat associations. While there were approximately 1,500 northern spotted owl pairs identified at the time of listing (1990), subsequent surveys across a larger percentage of the landscape in the mid and late 1990s detected more than 4,000 pairs. Because adult northern spotted owls are long-lived and have high site fidelity, it is reasonable to assume that these sites identified as occupied several years post-listing were also occupied by owls at the time of listing.
In addition, we are not stating that all critical habitat was occupied at the time of listing, but as clearly identified in the proposed rule and this final rule under the section Unoccupied Areas (77 FR 14062, p. 14099), we acknowledge the uncertainty regarding whether some areas were occupied at the time of listing or not (especially those areas used for dispersal or which were likely occupied based on habitat suitability). Therefore, we have evaluated these areas as if they were unoccupied at the time of listing and have found them to be essential to the conservation of the species.
In Washington, we added suggested areas to critical habitat only where updated information about land ownership indicated a change in ownership from private ownership to Federal ownership. This was based on our prioritization of landownerships in the designation, as described above, wherein we looked to Federal lands first for critical habitat, and included State and finally private or Tribal lands only where necessary to achieve the conservation of the species. These areas had not initially been included in the proposal because the ownership information we used had indicated these lands were privately owned, and therefore they were not prioritized for inclusion. These additions occurred in the central Cascade Range of Washington where many sections of industrial timberlands in checkerboard ownership with Federal lands had recently been transferred to Federal ownership. This area of the central Cascades surrounding Snoqualmie Pass has repeatedly been identified as essential to maintaining demographic linkages among spotted owl populations from northern to southern Washington, and from the west slope to the east slope of the Washington Cascades.
Zonation 70 was considered, and subsequently modified in various composite networks we evaluated. We found that simply increasing the area of potential critical habitat networks did not always result in better performance of simulated owl populations in HexSim (e.g., Composite 7 was 13.9 million ac (5.625 million ha) and had an ending population that did not differ (95 percent confidence intervals overlapped) from composites with from 18.2 to more than 20 million ac (7.4 to more than 8.1 million ha)). In some modeling regions, our modeling results suggest that owl populations are likely to remain relatively low; in part due to the relatively small amount of mid-to-high RHS area in them. The population results for Zonation 40, 60, 80 and 90 are provided in our Modeling Supplement (Dunk
The KLA DSA is quite small, and is distributed across the Klamath East and Klamath West modeling regions. The CAS DSA is large, and is distributed across the Klamath East and East Cascades South modeling regions. There were no simulated northern spotted owl life-history parameters that varied based on demographic study area location. Some demographic data (resource target and home range size) did, however, vary by modeling region.
HexSim simulation data show that the East Cascades South modeling region exchanged owls principally with the Klamath East and West Cascades South modeling regions. The Klamath East modeling region exchanged owls principally with the East Cascades South and Klamath West modeling regions, with relatively small numbers of immigrants coming from the West Cascades South region. The Klamath West modeling region exchanged owls principally with the Klamath East modeling region, with the next highest number of emigrants and immigrants being associated with the Oregon Coast and Redwood Coast regions, respectively.
The simulated CAS DSA population size is roughly 45 owls too large, whereas the KLA DSA population size is about 55 owls too small. These two DSAs are spread across three modeling regions, with both DSAs residing partly in the Klamath East region. Because the Klamath East modeling region exhibits high rates of simulated immigration and emigration with the other two modeling regions in question (see previous paragraph), the discrepancy in simulated DSA population sizes is not a big concern. The sum of the simulated CAS and KLA DSA population sizes is almost exactly equal to the combined field estimates for those two regions. This suggests that HexSim's simulated northern spotted owl population size and distribution is quite accurate at the scale of the DSA for most DSAs, and for these two DSAs in particular, it is similarly accurate, just at a slightly larger spatial scale.
We used the objectives and criteria in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) to guide our critical habitat proposal. Only after we had a critical habitat network that we considered essential to meet recovery objectives did we impose the secondary criterion of network efficiency. We retested networks after efficiency modifications were made to ensure they were still likely to meet recovery objectives. We included State or private lands only where our modeling results indicated Federal land was insufficient to provide what is essential for recovery.
As described in the section Criteria Used to Identify Critical Habitat, we have included in this designation only those areas occupied at the time of listing that provide the essential physical or biological features, or areas unoccupied at the time of listing that we have determined are otherwise essential to the conservation of the northern spotted owl. We appreciate the commenter's suggestion of additional areas for consideration, and we did evaluate all areas on the basis of RHS throughout the range of the northern spotted owl, including State and private lands in southwest Washington. We have included in this final designation all areas that we have determined are essential to the conservation of the species. A determination that certain areas are not essential should not, however, be interpreted to mean that such areas do not have the potential to contribute to the recovery of the species, and we encourage landowners to participate in other recovery efforts to achieve conservation on their lands (for example, as identified in Recovery Actions 14 and 15 of the Revised Recovery Plan (USFWS 2011)). In addition, we identified some State and
We believe the commenter may not have understood that the computer programs that we used were developed, to the extent that it was defensible to do so, with empirically derived information, and thus were also ultimately based on real forest stand characteristics. In cases where this was not possible, a rationale for parameter inputs was provided (see Appendix C of the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) and Dunk
We evaluated all areas anticipated to develop into suitable habitat in the future as if they were unoccupied at the time of listing, to determine whether such areas are essential to the conservation of the species. We included such areas in the final designation of critical habitat only if they were essential to the conservation of the species because they provide connectivity between occupied areas, room for population expansion or growth, or the ability to provide sufficient suitable habitat on the landscape for owls in the face of natural disturbance regimes, such as fire. In addition, recent research indicates that northern spotted owls require additional habitat area to persist in the face of competition with barred owls. Finally, in some areas where habitat loss or degradation was historically severe, areas of currently degraded habitat may be in need of restoration to provide the large, contiguous areas of nesting, roosting and foraging habitat required by the species. Section 3(5)(A)(ii) of the Act provides for the designation of critical habitat in specific areas outside the geographical area occupied at listing
To estimate potential incremental economic impacts of the proposed critical habitat designation, we focused on matrix lands that are likely to be unoccupied by the northern spotted owl. We did not estimate that there will be incremental economic impacts across the entire proposed critical habitat, so the comparison to the USFS expected harvest for the entire National Forest System across the entire range of the northern spotted owl is inappropriate. There are approximately 9.5 million acres of USFS lands in the proposed critical habitat. Of these, 6.9 million acres are reserves and 2.6 million are matrix lands. Of the matrix lands, approximately 1.1 million acres are predominantly younger forests (considered to be unoccupied) and 1.6 million acres are northern spotted owl habitat. Furthermore, we estimate that approximately 6.5 percent of northern spotted owl habitat is likely to be unoccupied. We find that incremental economic impacts to USFS timber harvest are relatively more likely in unoccupied matrix lands or approximately 1,158,314 acres of 2,629,031 total acres of all USFS matrix lands.
For example, in USFS Region 5, there are approximately 956,000 acres of matrix lands. The data provided by Region 5 suggest that the annualized projected timber harvest in these matrix lands is 105.4 MMBF (as noted in the comment). However, we estimate that incremental economic impacts due to the critical habitat designation would be relatively more likely to occur in unoccupied areas. We presume that there will not be incremental impacts to timber harvest due to critical habitat in occupied areas as these areas are already sufficiently managed for NSO conservation in the baseline. In Region 5, there are approximately 502,500 acres of matrix lands that are likely to be unoccupied (100 percent of predominantly younger forests and 6.5 percent of northern spotted owl habitat). Thus our area of potential impact is smaller than that contemplated in the comment. Our estimate of baseline timber yield within these areas, however, is consistent with those presented in the comment and FS data. Specifically, the annualized projected timber harvest in these unoccupied matrix lands is 55.5 MMBF. Therefore, when we contemplate a 20 percent reduction in timber harvest due to critical habitat in matrix lands that may potentially experience incremental impacts, we calculate a reduction of approximately 11.1 MMBF (20 percent of 55.5 MMBF), versus a reduction of 21.1 MMBF (20 percent of 105.4 MMBF). In sum, our baseline timber yield and harvest projections are consistent with the USFS data cited in the comment; we are simply assessing impacts on a more constrained set of acres where incremental impacts are relatively more likely to occur.
Note also that the DEA based USFS Region 6 projections on historical timber harvest quantities provided by USFS. Therefore, planned changes to timber harvest were not contemplated. To address this uncertainty, the FEA scales existing baseline projections upward to account for a potential 20 percent increase in timber harvest projection on USFS lands. The FEA also revises the language regarding projected timber activities to clarify that they may include both thinning and regeneration harvest. However, this does not materially affect the results of the analysis.
Finally, we note that our estimate of the area of younger forest in the matrix where incremental impacts may occur is most likely an overestimate. As stated above, we estimated that of the matrix lands, approximately 1.1 million acres are predominantly younger forests (considered to be unoccupied). This estimate, however, was based on the total area of younger forest in the matrix within the proposed designation regardless of patch size. As we noted in our incremental effects memorandum (IEC 2012b, p. B-7), it would be unusual for an agency to contemplate a timber sale or other activity on a very small patch of younger forest; based on our experience, we assumed roughly 40 ac (16 ha) as the minimum patch size of younger forest on which we would anticipate potential incremental impacts. As the estimate of younger forest within the matrix used in the economic analysis did not screen out patches less than 40 ac (16 ha) in size, the resulting total of 1.1 million acres is likely an overestimate of the area of younger forest where incremental impacts may occur on matrix lands. In addition, the final designation represents a net reduction of matrix lands where economic impacts are relatively more likely to occur and this reduction was not analyzed in the FEA (see Changes from the Proposed Rule). It is also important to note that, even if there were likely to be higher economic impacts, we would not exclude these lands from designation under section 4(b)(2) because a critical habitat designation in these areas will likely have regulatory benefits in conserving this essential habitat.
All private lands have been excluded from this final designation of critical habitat for the northern spotted owl (see Exclusions).
They conclude that if private acres in Washington are designated as critical habitat, all of these jobs, and the associated wages, taxes, and fees, will be lost. In other words, a total of 1,650 jobs, $74.3 million in annual wages, and $4.5 million in annual taxes and fees to counties will be lost. If the Washington multipliers are extended to all 1.3 million private acres proposed in Washington and California, more than 19,000 jobs could be affected. A separate comment states that for every 1,000 ac (400 ha) of private working forestland in California taken out of production, 12 jobs are lost. Using the resultant multiplier of 0.012 jobs per acre, the comment states that the 1.27 million ac (514,000 ha) of private land proposed for critical habitat designation in California represents more than 15,000 jobs.
On some private lands, uncertainty on the part of landowners over whether the designation will result in future restrictions may create an incentive for those landowners to shorten harvest rotations, cutting timber earlier than is financially optimal (see paragraphs 263 through 269 of the FEA). We did not anticipate that private landowners will be precluded from harvesting timber as a result of the designation; rather, we assumed they may harvest earlier than they would have absent the designation. As a result, the estimates noted in the comment of lost employment and associated wages, fees, and revenues anticipated in the comments are likely overstated.
In Washington, 21,715 ac (8,788 ha) of private land in the proposed designation are identified by the State as suitable habitat for the northern spotted owl, but are not currently designated as “critical habitat state.” It is possible that the State may reclassify these areas as “critical habitat state” in response to the Federal designation, which would impose significant administrative costs on landowners, such that landowners would likely forego future harvests. However, such a regulatory change on the part of the State is uncertain (see complete discussion in paragraphs 231 through 235, 269, and 276 through 279 of the FEA). These private lands are not included in the final designation, as the result of either refinements to critical habitat (determinations that small private landholdings either do not contain the PCEs, or are not essential to the conservation of the species) or exclusions under section 4(b)(2) of the Act.
Thus, the DEA estimated that at worst, it is possible that 21,715 ac (8,788 ha) in Washington may not be harvested, or approximately 1,086 ac (439 ha) per year over the 20-year timeframe of our analysis. Estimating the impact of such a small change in harvestable acres on employment is difficult and likely to be highly dependent on the location and timing of the foregone harvests. The relationships between acres and jobs, revenues, or fees and taxes presented in the comments may not be applicable to such small, marginal changes in harvestable acres.
For example, the ratio of 5 jobs for every 1,000 ac (400 ha) likely represents the average jobs created per acre when total acres of forestland are divided by total timber employment in the State (the Forest2Market report is not clear about whether its ratios represent average or marginal changes). A marginal estimate, on the other hand, would look at the number of jobs associated with the “next” 1,000 acres of harvest given existing employment levels and harvestable acres, as the relationship between jobs and acres may not be perfectly linear. Employment associated with the next 1,000 acres of harvest may be larger or smaller than the average. Furthermore, it is possible that other private acres may be harvested as substitutes for the 21,715 ac (8,788 ha) that could be restricted if the State changes its regulations, diminishing the rule's effect on employment. Thus, even if we knew with certainty that the State of Washington will change its regulations as a result of the designation, forecasting potential changes in employment is challenging given existing data limitations.
Regarding the assessment of ancillary benefits, Circular A-4 states, “You should begin by considering and perhaps listing the possible ancillary benefits and countervailing risks. However, highly speculative or minor consequences may not be worth further formal analysis. Analytic priority should be given to those ancillary benefits and countervailing risks that are important enough to potentially change the rank ordering of the main alternatives of the analysis” (Circular A-4, p. 26). This text provides some discretion to the Agency to determine whether the quantification of ancillary benefits is necessary. As described in responses to earlier comments, the application of best available data and tools to estimate the incremental changes in ecosystem services resulting from the designation of critical habitat would require significant effort and some data that do not currently exist. Because the Service has not excluded areas where such benefits are possible (i.e., Federal matrix lands), quantification of ancillary benefits would not change the regulatory outcome.
With regard to baseline definition, the comment suggests the analysis should incorporate potential future changes in timber markets, changes in external factors affecting costs and benefits, changes in future regulations, and likely future compliance with other regulations. With regard to future demand for timber, the analysis relies on the best available data provided by the USFS and BLM regarding baseline harvest levels (see FEA paragraphs 166 through 175). Data to predict future changes in the demand of timber products are highly speculative, given current economic conditions (e.g., demand for timber is largely driven by the housing market). We have no reason to anticipate other regulatory changes that would affect the designation of critical habitat, and the comment provides no additional information on this topic. Finally, we consider the degree of compliance with section 7 of the Act in the absence of critical habitat in determining the likelihood of future consultations (see, for example, the discussion in paragraphs 181 through 186 of the FEA).
As discussed in detail in Chapters 3 and 6 of the FEA, the O&C counties currently elect to receive Secure Rural Schools and Community Self-Determination Act (SRS) rather than revenue-sharing payments from BLM under the O&C Act. These payments are supplemented by Payments in Lieu of Taxes (PILT) (see paragraphs 128 through 130 of the FEA). Even absent the designation of critical habitat, the magnitude of future payments under these programs is highly uncertain given that these Federal programs have not been reauthorized (i.e., SRS) or funded (i.e., PILT) by Congress. If SRS and PILT payments continue, the changes in harvests on BLM lands will have minimal to no effect on payments, because SRS and PILT are not directly linked to harvest levels. However, if Congress decides to reduce or end payments under SRS and PILT, counties will shift back to receiving revenue-sharing payments under the O&C Act, and changes in timber harvests on BLM lands will affect the size of these payments. Importantly, we note that under the third scenario analyzed in the DEA, the potential decrease in harvest from BLM lands represents approximately 2 percent of total harvests from BLM lands in these counties (Based on BLM transaction data over the last four quarters (2011Q4-2012Q3) viewed at
The NRC report concluded, “[d]iverse economic conditions create diverse opportunities and thus temper the effects of timber industry fluctuations on local communities” (p. 165). It went on to note that “[a]s the importance of extractive industry declines, the Pacific Northwest communities are looking toward tourism as a way to bolster their economies * * * However, tourism by itself is not a substitute for timber industry jobs” (NRC 2000, p. 167).
In summary, the NRC report suggests that economically diverse communities are better off than communities that are highly dependent on the timber industry, and preserving wilderness can attract new economic activity to communities. We have added text summarizing the NRC findings in the FEA. However, the designation of critical habitat does not preserve wilderness. Furthermore reducing timber harvests does not guarantee that other sources of economic activity, such as tourism or in-migration by wealthy, highly educated individuals, will generate enough new economic activity to replace lost timber-related jobs and wages. Finally, the designation is likely to reduce or increase annual timber harvests from Federal lands by less than one percent. Thus, any changes in economic diversity resulting from the rule are likely to be difficult to measure.
The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to insure that any action authorized, funded, or carried out by the Agency is not likely to adversely modify critical habitat. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service's current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, EO's 12866 and 13563 direct Federal agencies to assess costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the EO regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable.
Therefore, as discussed in the previous response, where third parties
Potential impacts to the profitability of timber industry entities resulting from changes in the price or availability of timber represent an indirect effect of the regulation. In this case, we note that potential changes in timber harvests are anticipated to be less than one percent of average annual harvests in the region subject to the designation.
The direct cost (or benefit) of these section 7 project modifications is a loss (or gain) in Federal revenues collected by the U.S. Forest Service and the U.S. Bureau of Land Management resulting from the associated timber sales. Stumpage values related to these effects are summarized in Exhibit ES-4 of the DEA. In the FEA, we include additional information in the RFA/SBREFA screening analysis (Appendix A) describing these project modification costs, which are borne entirely by Federal agencies.
The potential indirect effects of these lost Federal revenues, in terms of implications for County revenue sharing programs, are discussed in Chapter 6 of the DEA (see paragraphs 293 through 299). In addition, Chapter 6 also identifies the counties with Federal lands more likely to experience changes in harvest levels as a result of the designation and provides background information on harvest and employment trends in these counties.
Second, based on historical experience, projected actual timber harvest in the baseline on USFS and BLM lands is likely to be less than that in the formally-approved land management plans under the NWFP. Federal land managers have not achieved this level of timber harvest over the past several years, and do not anticipate this level of harvest in the future, providing further confirmation that the identified long-term sustained yield of 840 MMBF associated with these plans would overstate the baseline.
For those matrix areas where incremental effects may be relatively more likely to occur, the FEA utilizes a variety of planned, historical actual, and projected actual timber harvest data provided by BLM and FS to derive the annual baseline projection, which totals approximately 123 MMBF. This projection is then appropriately caveated, with the FEA noting that within the discrete areas of each subunit where incremental effects may occur, the subunit level projection could vary materially from future actual timber harvest in these areas.
We note further, however, that based on comments received from Federal land managers, we have added an additional sensitivity analysis to Chapter 4 of the FEA. Specifically, the sensitivity analysis tests alternative assumptions concerning: (a) The percentage of northern spotted owl habitat on BLM matrix lands that is likely to be unoccupied, which increases the acreage where incremental timber harvest impacts may occur and thus the baseline projection; and (b) the baseline harvest projection for USFS Region 6, where we assume a 20 percent increase in baseline timber harvest relative to historical yields.
With respect to the representation of the potential 500 MMBF reduction in annual timber harvest, this figure overstates any possible effect of critical habitat. This volume is roughly equivalent to the total harvest on the National Forest System and BLM lands in the NWFP area in recent years, and is roughly five times the baseline harvest projection for potentially-affected areas. The figure implies that the designation will largely preclude any timber harvest whatsoever on Federal lands operated under the NWFP. Based on the historical record of actual timber harvest volumes and the best available information concerning potential future harvest activity under the designation, we reject this representation.
Significant debate has occurred regarding whether assessing the impact of critical habitat designations using this baseline approach is appropriate, with several courts issuing divergent opinions. Courts in several parts of the country, including the 9th Circuit Court of Appeals, which has jurisdiction in Washington, Oregon, and California, have ruled that the consideration of economic impacts in the designation of critical habitat should be based on the incremental impacts of the designation. See, e.g.,
Chapter 3 of the FEA provides extensive discussion of the historical and current economic conditions against which critical habitat is designated. Specifically, the document provides data, by each of the 56 counties overlapping the proposed rule, on changes in timber harvests, timber industry employment, and timber industry payroll since 1989. It also provides a detailed discussion of the existing revenue-sharing programs related to timber harvests and the data describing which counties are most reliant on these programs.
In weighing the benefits of including an area in critical habitat as opposed to excluding it, ancillary benefits may be considered, although we agree with the comment that the most relevant benefit of designating critical habitat for the northern spotted owl are the benefits to the species' conservation and recovery. However, ancillary benefits are relevant only to a decision whether to exclude an area under section 4(b)(2) of the Act, not to the threshold determination that an area meets the definition of critical habitat. We agree that only lands that meet the definition of critical habitat (areas occupied at the time of listing containing features essential to the species' conservation or unoccupied areas that are themselves essential to the species' conservation) should be designated.
The first comment focuses in particular on the potential relevance to the DEA of a large-scale benefits transfer estimate developed for the Skykomish watershed. This study is characterized as a “rapid ecosystem service valuation.” In general, the authors first identified land cover types present in the watershed, identified the categories of ecosystem services relevant to those types, and then researched existing studies valuing those categories of ecosystem service benefits. From the available literature, the authors estimated a range of values for each category of ecosystem service by relying on the low end and high end estimates identified. The authors then summed across relevant ecosystem service values
While case- and site-specific modeling to value ecological benefits is preferable, the Service agrees that benefits transfer methods may be useful in the absence of resources for intensive primary research. To use these methods in support of Federal rulemakings, OMB has developed guidelines for conducting credible benefits transfer. A rapid assessment of ecosystem services, such as that developed for the Skykomish, is unlikely to meet the criteria specified by OMB. Multiple responses to similar large-scale benefits transfer studies have highlighted the theoretical and practical problems associated with estimating and extrapolating per-acre estimates of values taken from other studies of ecosystem services (e.g., Bockstael
First, this approach ignores site-specific factors affecting the production of services by not accounting for variations in the condition or quality of an ecosystem. For example, a less dense or degraded forest area stores less carbon than a dense, healthy forest. The extent to which a given acre of land delivers ecosystem services also depends on the surrounding land uses. For example, a wetland downslope of cropland may provide a valuable service by filtering nitrogen runoff and decreasing the total amount of the nutrient reaching a water supply, whereas a wetland surrounded by forest is unlikely to intercept such runoff to begin with and, therefore, would not provide this service. By relying on site-specific studies valuing these types of services in other areas—the Skykomish study relies on a variety of studies of ecosystems all across the country—these differences are not taken into account. In addition, benefits transfer for rapid assessments, such as the Skykomish study, fail to account for differences in values associated with differences in socioeconomic context between sites. For example, the recreational value of a forest depends on multiple site-specific socioeconomic factors such as accessibility (landownership and proximity to roads and towns). In transferring values of ecosystem services from other studies, the Skykomish study fails to account for such ecological and socioeconomic context affecting these values. This represents one reason we do not rely on the values presented in this study in the DEA.
Second, rapid assessments do not provide information on the effects of changes in the condition or quality of an ecosystem on the associated service values. The Skykomish study assigns an equal value to all “forest” acres and therefore does not provide any information to support an analysis of the ecosystem service benefits of changes in the management of a forest. It is the incremental change in the value of a service provided that is relevant to the DEA. For example, the DEA concludes critical habitat designation for the northern spotted owl may result in the harvest of fewer board feet of timber in a portion of the forests. Decreased harvest of trees may not change the land cover type (forest) as characterized in the rapid assessment; it simply affects the density of the trees in given areas. The rapid assessment approach does not address such differences across areas within a land use type (i.e., forests); rather, it is more useful in comparing the ecosystem services provided across different land use types (i.e., deserts, prairie, forests, marshes) and is therefore of limited use in evaluating tradeoffs associated with changes in the condition of a given ecosystem.
Consequently, absent a full-scale change from one ecosystem type to another, the rapid assessment approach to valuing benefits of critical habitat designation does not provide a valid approach to quantifying the ecological benefits of critical habitat designation for the northern spotted owl. While the DEA provides information on the types of services associated with the ecosystems types potentially affected by the designation, it does not attempt to perform a rapid assessment of the values of these services, for the reasons stated.
For each ecosystem service, InVEST relies on two separate models: One that estimates the biophysical change in the delivery of a service and, for some services, a second economic model that monetizes that change. For example, to estimate the change in water quality resulting from changes in the management of a given forest, the following types of detailed, on-the-ground, data would be required as inputs to the biophysical model: A digital elevation model, soil depth, plant available water content (the fraction of water that can be stored in the soil profile for plants' use), root depth of vegetative cover, evapotranspiration, nutrient or sediment loading for each land use type across the landscape, the vegetation filtering capacity of the land cover (as a function of the type and density of vegetation), and pre-existing water quality conditions for model calibration (e.g., nitrogen, phosphorus, or sediment concentrations). While some of these data are available; some would need to be generated at a relatively fine level of resolution in order to model the incremental changes in the ability of the landscape to filter pollutants likely to result from the designation. The InVEST tool values this service in terms of changes in treatment costs for nutrients or sediment. These costs are likewise site-specific.
This effort is particularly significant in light of the conclusion of the DEA that the critical habitat designation is most likely to generate only minor incremental changes in the management of land uses within the designation. The key change is a potential increase or decrease in timber harvest of less than one percent in the region. While the analysis describes qualitatively that this change potentially could generate some marginal improvements in services such as water quality regulation, these benefits are expected to be relatively minor, ancillary benefits of the rule. The same is true of application of other models to evaluate benefits, such as the Multiscale Integrated Model of Ecosystem Services (MIMES), also described in the comment. Finally, the areas most likely to produce these ancillary benefits (e.g., Federal matrix lands) are included in the final designation; thus additional analysis of
The objective of the Ecosystem Services Review (ESR) Method is to provide companies with information on how their business depends on ecosystem services, whether their business affects their (or others') ability to access these services, and opportunities to capitalize on and minimize effects on these services. The ESR is not a quantitative tool but a series of steps embedded in a spreadsheet model to help users incorporate consideration of ecosystem services into business decisionmaking. While useful to corporations, it is unclear how this tool may be used to improve the benefits discussion in the DEA. Section 8.2 of the DEA describes potential categories of ancillary ecosystem service benefits that may result from the designation and where (in which units) these benefits may occur. This information is provided for the Service to consider alongside the costs. The ESR does not provide a means to value these services.
The Wildlife Habitat Benefits Estimation Toolkit is a benefits transfer tool developed by the Defenders of Wildlife and Colorado State University for the purposes of valuing ecosystem services associated with species and habitat conservation, such as property values, recreation, and existence values. The benefits transfers facilitated by this toolkit suffer from some of the same issues as the rapid assessment described above. The policy context or sites subject to analysis are most often not transferable to the issue being evaluated: In this case, the land management changes resulting from the critical habitat designation for the northern spotted owl.
Responses provided to earlier comments review the best available modeling tools for quantifying and valuing ecosystem services and describe why these tools were not employed in this instance. In the FEA, we expand our qualitative discussion of potential ancillary benefits to include the broader set of ecosystem service categories discussed in the comment.
Put another way, the organization appears to be asking us to first present the total value of all services provided by forests included in proposed designation. Then, our analysis would estimate the value of the incremental change in quality and quantity of these services as a result of the designation. Such an effort would be equivalent, on the cost side of the analysis, to first presenting the total value (in terms of stumpage prices) of all the timber found in proposed critical habitat, and then presenting the value of the change in the amount of timber harvested as a result of the regulation. On both sides of the equation, providing a monetized estimate of the value of the baseline resources is not a necessary step to understanding the value or the change in services resulting from the designation. Correctly
Substantial debate surrounds the selection of appropriate discount rates for ecosystem services. While Circular A-4 recommends applying discount rates of 7 and 3 percent for regulatory analyses, it does not preclude the application of alternative discount rates for comparison. The comment recommends assessing ecosystem services benefits using discount rates of zero and one percent, in addition to three and seven percent. Because ecosystem services are not quantified in the economic analysis, we do not consider additional sensitivity analysis around the discount rate assumption.
Further, such an effort would require some data that are not currently available.
We agree that whether the net benefit of timber sales in terms of costs and revenues is positive has been the subject of much debate. CRS summarizes this debate and notes “the estimates of financial results of [USFS] timber sales vary widely. This disparity is due to differences in basic approach—profit-and-loss, cash flow, or other approach—and in assumptions about relevant costs” (Gorte, R.W. 2004, summary page). In particular, CRS notes differing assumptions regarding which Agency costs are relevant and how to allocate those costs to specific sales may result in different answers using the same basic accounting approach.
CRS also notes that the USFS sells timber for many reasons, such as “to generate receipts, to supply wood for manufacturers, to provide employment, to expand access for motorized vehicles, to alter the composition and distribution of vegetation in the area, and more” (p. 5). The “value” of all of these positive attributes of the sales may not be captured in the stumpage price paid by the loggers or mills purchasing the timber, as many of these attributes represent market externalities. Furthermore, “the multiple outputs, environmental impacts, and differing time scales of timber sales and related activities make identifying relevant costs and comparing them with relevant revenues problematic. Two decades of debate have not resolved the dilemma, and further debate seems unlikely to result in widespread agreement” (Gorte, R.W. 2004, p. 7).
Thus, whether the Federal agency costs of baseline timber sales anticipated in the absence of critical habitat, or new sales potential generated by the designation, exceed revenues is unknown. However, the fact that these sales are often conducted for multiple purposes, such as improved ecosystem services or regional employment, and those purposes may have value that is not captured in stumpage prices, suggests that our assumption that the benefits of the sales exceed costs is not unreasonable.
The DEA used a filtering approach to identify those specific areas where incremental timber harvest effects may occur. Further explanatory detail on these methods has been added to Chapter 4 of the FEA. In addition, the chapter also notes the potential effects to the baseline timber projection related to increasing the percentage of matrix lands with northern spotted owl habitat that are likely to be unoccupied.
Given the numerous factors affecting the future of the industry, including changes in the availability of Federal timber, mechanization, transfer of capital investment away from the region, closure of less efficient mills, and fluctuating demand for wood products, we are unable to provide quantitative projections of future timber-related employment. Furthermore, as discussed in Chapters 3 and 6 of the DEA, uncertainty regarding
Chapter 6 of the DEA attempts to address potential disparity in the distribution of regional impacts of the designation. It combines background information on timber industry harvest and employment trends (presented in Chapter 3), and county dependency on revenue-sharing payments, with information about subunits where changes in timber harvest are possible (Chapter 4). It highlights the counties most likely to be affected by the rule based on proximity to affected subunits, and identifies which of these counties have already experienced the most significant declines in the industry over the last 20 years. The report notes that these counties may be more sensitive to future changes in timber harvests.
Definitely linking changes in timber harvests to timber-related jobs in certain communities is challenging. Timber industry jobs are not necessarily closely correlated with the amount of timber being harvested in that specific county; some mills or related manufacturers (e.g., wood product manufacturers) may rely on resources harvested from outside their immediate community. In its presentation of historical data on regional mill closures, the Sierra Institute for Community and Environment acknowledges, “Other reasons for mill closure also include, but are not limited to, industry closing older, less efficient mills, closure of mills that handled only larger trees coupled with less old-growth timber available, and shipping raw logs and cants out of the region for processing elsewhere. Additional study is needed” (page 31).
Teasing out the precise location of potential regional impacts resulting from critical habitat designation is particularly challenging due to the relatively small overall change in harvest anticipated to result from the final rule (at worst, a less than one percent decline in annual harvest). This marginal change in available Federal timber is unlikely to cause large-scale changes in the regional industry. Identification of who will experience impacts requires better understanding of potential substitutes and the degree of flexibility in the current production system, as well as proprietary information about the financial characteristics and operations of individual mills. Such data are not available to us and are not provided in the Sierra Institute for Community and Environment's report.
The memorandum did not require the Secretary to take the additional step of developing complex models to link changes in timber industry employment to changes in socioeconomic conditions, such as poverty rates, homeownership, and participation in food assistance programs, as suggested by the report authors. Furthermore, the authors of the Sierra Institute for Community and Environment report acknowledge that linking changes in socioeconomic factors to changes in land management, and specifically to critical habitat designation, is challenging due to time constraints and complex data requirements (see, for example, pages 94, 105, 168 of the Sierra Institute for
In California, the FEA states that one stakeholder noted that landowners may be required to provide additional documentation under CEQA to demonstrate that their management plan timber harvest plan will mitigate impacts to critical habitat. Since CALFIRE has stated that it is unlikely to require additional protective measures for designated critical habitat beyond those already required by State regulation, any incremental costs would be limited to the possibility for additional CEQA review.
The FEA also identifies possible changes to timber harvest practices suggested by private parties as potentially occurring due to regulatory uncertainty, ranging from harvesting existing trees as early as feasible to discontinuing use of the property for timber production. However, due to the high degree of uncertainty over whether these impacts may occur, we were not able to quantify the potential effects.
We note that all private lands were excluded from critical habitat for the northern spotted owl under section 4(b)(2) of the Act (see Exclusions), therefore none of the potential scenarios considered by the DEA are germane to the final designation.
The OMB guidelines for best practices (
Significant debate has occurred regarding whether assessing the impact of critical habitat designations using this baseline approach is appropriate, with several courts issuing divergent opinions. In 2010 and 2011, courts in several parts of the country, including the Ninth Circuit Court of Appeals, which has jurisdiction in Washington, Oregon, and California, ruled that decisions concerning designation of critical habitat should be based on the incremental impacts of the rule. The 9th Circuit cases were appealed to the Supreme Court, which declined to hear them.
The Entrix report analyzing the 2008 designation was prepared under subcontract to Industrial Economics, Incorporated (IEC), the authors of the 2012 analysis, and project managers from IEC worked closely on both efforts. The difference in the two analyses regarding whether to quantify impacts resulting from baseline regulatory protections is due to the change in case law described in the previous paragraph.
IEC also reached out directly to County representatives. On June 6, 2012, IEC emailed representatives of Siskiyou, Skamania, and Douglas Counties, as well as the Association of O & C Counties, the Association of Oregon Counties, and the Washington State Association of Counties, and offered to meet with them via conference call. On June 25, 2012, IEC received a letter from representatives of Skamania, Douglas, and Siskiyou Counties requesting a meeting with all of the counties that may be affected by the designation. Since the comment period closed on July 6, 2012, the Service determined that there was not time to arrange a meeting with all 56 counties. However, on July 20, 2012, per section 4(b)(5) of the Act, we again invited all State agencies and affected jurisdictions to submit their comments on the proposed critical habitat revision.
The data source for Exhibits 3.6 through 3.8 of the DEA, which present historical timber industry employment and payroll data for each county that contains proposed critical habitat (as well as for each State and for the entire study area), is the U.S. Census Bureau's County Business Patterns. Data for the County Business Patterns excludes data on self-employed individuals, employees of private households, railroad employees, agricultural production employees, and most government employees. More information on these exclusions can be found at
Exhibit 3-9 in the FEA illustrates the relative magnitude of historical payments under all four programs, and Exhibit 3-10 provides information on percent of local government revenue that is made up of payments from these programs. Current SRS and PILT payments are based on historical revenue payments under preexisting programs and are allocated based on formulas considering a variety of factors. If these programs are re-authorized and funded, changes in revenues from Federal lands designated as critical habitat would first filter through the national allocation scheme and then through the State formulas, making it difficult to predict changes in payments. If these programs are not reauthorized and funded, then the payments would change each year based on a 7-year rolling average of receipts for USFS lands and the prior year's receipts for BLM O&C lands, and would also be filtered through the State's allocation formulas. Given the uncertainty associated with the future of SRS and PILT, the varying allocation schemes associated with the programs, and the relatively small change in anticipated harvests, the potential change in revenue-sharing payments is difficult to predict. Importantly, we note that the reauthorization and funding of SRS and PILT is unrelated to the decision to designate critical habitat for the northern spotted owl.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is significant because it will raise novel legal or policy issues.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and forestry and logging operations with fewer than 500 employees and annual business less than $7 million. To determine if potential economic impacts to small entities may result from this designation, and whether these potential impacts may be significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
The Service's current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service's current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, E.O.'s 12866 and 13563 direct Federal agencies to assess costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the E.O. regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable.
We acknowledge that in some cases, third-party proponents of the action subject to permitting or funding, though not directly regulated, may participate in a section 7 consultation with the Federal action agency. Moreover, E.O.'s 12866 and 13563 direct Federal agencies to assess all costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and
Importantly, the incremental regulatory and economic impacts of the rule must be
While developing our draft economic analysis (DEA), we determined that there may be third-party participants to consultations involved with timber harvest and linear projects. In estimating the potential number of entities involved with consultations on timber harvest, we used the projection of 1,000 consultations over the 20-year time horizon of the DEA related to timber harvest management, providing an assumption of 50 consultations per year. We predict that many of these consultations will not involve third parties, but data is lacking about third-party participation rates. For the sake of our evaluation, we took a more inclusive approach and assumed that third parties are involved with these consultations and that each party is a small entity, providing an annual estimate of 50 small entities that may be involved over the 20-year time horizon of the study. This is likely an overestimate of the number of third parties involved with timber management consultations and therefore an even greater overestimate of the number of small entities involved because many of those third parties will not be small entities. The DEA further explored the projection of small businesses in timber-related sectors in the geographic areas overlapping the critical habitat designation, which differed depending on the specific data sets used, either 7,140 entities or 2,616 entities. Using our conservative estimate of 50 small entities involved annually, the proportion of entities in the timber harvest management sector potentially impacted by the designation would be 0.70 percent and 1.9 percent, respectively, over the 20-year time horizon of the study.
The RFA does not explicitly define the specific proportion of any given sector that would represent a substantial number, but leave that determination to the discretion of the agency issuing the regulation. While the Service or the Department of Interior does not have a specific policy concerning what proportion of any given sector impacted would represent a substantial number, the Service, as a matter of practice, uses a value of 3% to evaluate whether the regulation may impact a substantial number. In other words, if a regulation is determined to have an impact on less than 3% of entities in a given sector, then the agency makes a determination that a substantial number is not affected. Whereas, if it is determined that the proportion of entities impacted by a given regulation is equal to or greater than 3%, then the agency further evaluates available data to make a specific determination for that regulation.
Applying the aforementioned criteria to the specific proportion of the timber harvest management sector, we have concluded that these proportions do not represent a substantial number of small business entities potentially affected in the timber harvest management sector. Please refer to Appendix A of the FEA for further details of our evaluation.
Next, we explored the potential impact to third parties that may be involved with consultations related to linear projects (i.e., roads, pipelines, and powerlines). On the basis of similar conservative assumptions explained in the DEA, we concluded that there may be a total of 11 projects in a given year that may involve third parties. If we similarly assume that each of these parties represent small entities, then we estimate that 11 small entities in a given year could be impacted by the designation. While there is greater uncertainty as to the number of small entities involved with linear projects, we believe that the relative proportion these 11 entities represent is unlikely to constitute a substantial number. Further, the projected impacts to third parties resulting from the consultations on linear projects are anticipated to be solely administrative in nature. Thus, even with the uncertainty as to whether the proportion of entities potentially effected is may be substantial (although we think that it is not), we have determined that the potential impacts to these entities would not be significant as they would only be the result of additional administrative costs, which are relatively minor. Therefore, based on our conservative estimates in identifying third parties in this sector that potentially may be impacted, the projected number of entities and types of impacts, we concluded that the designation would not result in a significant impact to a substantial number of small business entities in this sector.
These conclusions were reaffirmed in our FEA. Please refer to Appendix A of the FEA for further details of our evaluation. In development of the final economic analysis (FEA) and taking into consideration all information and comments received, and based on our conservative evaluation of the number of entities in the timber management and linear project sectors potentially impacted, the proportion of the affected entities to those representing the sector in the study area, and the types of impacts, we again determined that the revised critical habitat designation will not have a significant economic impact on a substantial number of small business entities. In Appendix A of the FEA, we acknowledge that the primary economic impact of the project modifications resulting from the consultations described above is a change in Federal revenues generated by timber sales. In other words, if harvests are increased or decreased as a result of the designation, the USFS and BLM will
In the FEA, we evaluated the potential indirect economic effects on small business entities resulting from conservation actions related to the listing of the northern spotted owl and the designation of critical habitat. The analysis is based on the estimated impacts associated with the rulemaking, as described in Chapters 4 through 8 and Appendix A of the analysis, and evaluates the potential for economic impacts related to: (1) Timber management, (2) barred owl management, (3) northern spotted owl surveys and monitoring, (4) fire management, (5) linear projects (i.e., roads, pipelines, and powerlines), (6) restoration, (7) recreation, and (8) administrative costs associated with consultations under section 7 of the Act.
With respect to Federal lands, consultations with Federal land managers, the Service, and other experts indicate varying opinions regarding potential critical habitat effects on timber management practices, and noted the difficulty and limitations of deriving precise measures of positive or negative incremental change. Therefore, the FEA considered three alternative scenarios, which are described in Chapter 4 and summarized in Exhibit ES-4 of the FEA. These scenarios include: (1) Administrative costs only; (2) potential positive incremental impacts to timber harvest on Federal lands; and (3) potential negative incremental impacts to timber harvest on Federal lands. Furthermore, the economic analysis presents a potential low impact and high impact outcome for each of the three scenarios. Thus under the positive impact scenario, the estimated annualized
In response to public comment, a sensitivity analysis was performed on the baseline timber harvest projections, to better inform the alternative impact scenarios in the FEA. The economic analysis uses a baseline harvest projection of approximately 122.80 million board feet (MMBF) per year. In the sensitivity analyses, the baseline timber harvest projection increases by up to an additional 27.99 MMBF per year. Therefore, the range of incremental impacts to Federal timber harvest widens from a potential increase in stumpage value of $3,580,000 (under the increased timber harvest scenario) to a potential decrease of $7,860,000 (under the decreased timber harvest scenario) per year.
In addition, Exhibit ES-4 of the FEA presents our qualitative conclusions concerning potential timber harvest impacts to private lands, and notes that there may be possible negative impacts associated with regulatory uncertainty, and new regulation in the State of Washington, and concludes that zero timber harvest impacts are likely to occur on State lands. Finally, Exhibit ES-4 notes the potential incremental administrative costs related to linear projects, which are estimated to be between $10,800 on the low end and $19,500 on the high end.
The FEA also confirms our conclusion that between less than one percent and two percent of potentially effected small entities in the 56 county study area may participate as third parties in section 7 consultations related to timber harvests on an annual basis. In addition, approximately 11 electricity transmission or natural gas pipeline companies may participate in section 7 consultations in a given year. While we believe that this number does not represent a significant proportion of entities in this sector, the impacts to these entities are expected not to be significant as they are anticipated to be solely administrative in nature.
The FEA also explains that these estimates almost certainly overstate rather than understate the number of affected entities, perhaps to a significant degree, because: (1) Not all section 7 consultations will involve a third party; (2) not all third parties will be small entities; and (3) the same entity may consult more than once in a single year. We have also constrained the population of potentially affected entities to those found in counties overlapping critical habitat, as opposed to including others within the States of Washington, Oregon, and California. In addition, as described elsewhere in this rule, the greatest impact of section 7 will likely occur in unoccupied habitat, due to the fact that consultation would already occur in occupied habitat due to the presence of the listed species. We estimate that the vast majority of the areas being designated in this rule were occupied at the time of listing.
Finally, our analysis of potential impacts to small entities is overestimated because it was based on the proposed designation, which has been reduced by 4,197,484 ac (1,697,903 ha) in this final rule. Designated Federal lands are reduced by 2,849,745 ac (1,151,297 ha) due to the elimination of lands that we have determined do not meet the definition of critical habitat, the exemption of DOD lands under section 4(a)(3) of the Act, and the exclusion of Congressionally-reserved lands under section 4(b)(2) of the Act. Designated State and private lands are reduced by 1,647,170 ac (665,843 ha) due to the elimination of some lands that do not meet the definition of critical habitat and the exclusion of State parks and private lands under section 4(b)(2) of the Act.
In summary, we considered whether this designation would result in a significant economic impact on a substantial number of small entities. Based on the above reasoning, relevant case law, and currently available information, we concluded that this rule will not result in a significant economic impact on a substantial number of small entities. We are reaffirming our certification that this revised designation of critical habitat for the northern spotted owl will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this final rule to designate revised critical habitat for the northern spotted owl is a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation,
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We have determined that this rule will not significantly or uniquely affect small governments because the designation of critical habitat imposes no obligations on State or local governments. By definition, Federal agencies are not considered small entities, although the activities they fund or permit may be proposed or carried out by small entities. Consequently, we do not believe that the critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required. Further, it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the northern spotted owl in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding or assistance or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. The takings implications assessment concludes that this designation of critical habitat for the northern spotted owl does not pose significant takings implications for lands within or affected by the designation.
In accordance with Executive Order 13132 (Federalism), we have determined that this rule does not have direct federalism implications that would require a federalism summary impact statement; however, we are aware of the State-level interest in this rule, and we both summarize below and explain in more detail in other parts of this package activities and responsibilities on Federal, State, and private lands.
From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. As explained in detail earlier, section 7(a)(2) of the Act requires Federal agencies—and only Federal agencies—to ensure that the actions they authorize, fund, or carry out are not likely to destroy or adversely modify critical habitat. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. However, in keeping with Department of the Interior and Department of Commerce policy and the federalism principles set forth in Executive Order 13132, we requested information from, and coordinated development of, this revised critical habitat designation with appropriate State resource agencies in Washington, Oregon, and California, on the effects of revised designation of critical habitat. We received comments from the Washington State Department of Natural Resources, Washington Department of Fish and Wildlife, Oregon Department of Forestry, the State of Oregon, and California Department of Forestry and Fire Protection (CALFIRE), as discussed in the Summary of Comments and Responses section of the rule, above. In addition, we received comments from the following counties:
• Washington: Jefferson County, Klickitat County, Skamania County, and Skagit County;
• Oregon: Hood River County, Jackson County, Linn County, Douglas County, and the Association of O&C Counties; and
• California: Del Norte County, Tehama County, Regional Council of Rural Counties, Siskiyou County, and Trinity County.
We used this information to more thoroughly evaluate the probable economic and regulatory effects of the proposed designation in our final economic analysis, to inform the development of our final rule, and to consider the appropriateness of excluding specific areas from the final rule. We found that the revised designation of critical habitat for the northern spotted owl has little incremental impact on State and local governments and their activities.
The revision of critical habitat also is not expected to have substantial indirect impacts. As explained in more detail above, activities within the areas proposed to be designated as critical habitat are already subject to a broad range of requirements, including: (1) The various requirements of the Northwest Forest Plan, including those
Some indirect impacts of the rule on States are, of course, possible. Section 7(a)(2) of the Act requires Federal agencies (action agencies) to consult with the Service whenever activities that they undertake, authorize, permit, or fund may affect a listed species or designated critical habitat. States or local governments may be indirectly affected if they require Federal funds or formal approval or authorization from a Federal agency as a prerequisite to conducting an action. In such instances, while the primary consulting parties are the Service and the Federal action agency, State and local governments may also participate in section 7 consultation as an applicant. It is therefore possible that States may be required to change project designs, operation, or management of activities taking place within the boundaries of the designation in order to receive Federal funding, assistance, permits, approval, or authorization from a Federal agency. Also, to the extent that the designation of critical habitat affects timber harvest amounts on Federal land, county governments that receive a share of the receipts from such harvests may be affected. However, while non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
On the other hand, the designation of critical habitat will likely have some benefit to State and local governments because the areas that contain the physical or biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. It may also assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur).
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have revised critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. 4321
However, at our discretion, we undertook an environmental assessment for this revised critical habitat designation, and notified the public of the availability of the draft environmental assessment for the proposed rule, for review and comment. We took all substantive comments into consideration, both to make revisions or corrections in the environmental assessment, and in the decisionmaking process made in finalizing the determination. In our final environmental assessment, we were able to make a finding of no significant impact (FONSI) from this rulemaking action. The final environmental assessment is available at
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (November 6, 2000, and as reaffirmed November 5, 2009), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination, and recognizes the need to consult with tribal officials when developing regulations that have tribal implications. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that Indian lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. Even though we have determined that there are no Indian lands that meet the definition of critical habitat for the northern spotted owl, and therefore no Indian lands are included in this designation, we will continue to coordinate and consult with tribes regarding resources within the revised designation that are of cultural significance to them.
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this package are the staff members of the Oregon Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
(b)
Northern Spotted Owl
(1) Critical habitat units are depicted for the States of Washington, Oregon, and California on the maps below.
(2) Critical habitat for the northern spotted owl includes the following four primary constituent elements set forth in paragraph (2)(i) (primary constituent element 1) through paragraph (2)(iv) (primary constituent element 4) of this entry. Each critical habitat unit must include primary constituent element 1 and primary constituent element 2, 3, or 4:
(i) Primary constituent element 1: Forest types that may be in early-, mid-, or late-seral stages and that support the northern spotted owl across its geographical range. These forest types are primarily:
(A) Sitka spruce;
(B) Western hemlock;
(C) Mixed conifer and mixed evergreen;
(D) Grand fir;
(E) Pacific silver fir;
(F) Douglas-fir;
(G) White fir;
(H) Shasta red fir;
(I) Redwood/Douglas-fir (in coastal California and southwestern Oregon); and
(J) The moist end of the ponderosa pine coniferous forest zones at elevations up to approximately 3,000 ft (900 m) near the northern edge of the range and up to approximately 6,000 ft (1,800 m) at the southern edge.
(ii) Primary constituent element 2: Habitat that provides for nesting and roosting. In many cases the same habitat also provides for foraging (primary constituent element (3)). Nesting and roosting habitat provides structural features for nesting, protection from adverse weather conditions, and cover to reduce predation risks for adults and young. This primary constituent element is found throughout the geographical range of the northern spotted owl, because stand structures at nest sites tend to vary little across the northern spotted owl's range. These habitats must provide:
(A) Sufficient foraging habitat to meet the home range needs of territorial pairs of northern spotted owls throughout the year; and
(B) Stands for nesting and roosting that are generally characterized by:
(iii) Primary constituent element 3: Habitat that provides for foraging, which varies widely across the northern spotted owl's range, in accordance with ecological conditions and disturbance regimes that influence vegetation structure and prey species distributions. Across most of the owl's range, nesting and roosting habitat is also foraging habitat, but in some regions northern spotted owls may additionally use other habitat types for foraging as well. The foraging habitat PCEs for the four ecological zones within the geographical range of the northern spotted owl are generally the following:
(A)
(B)
(C)
(D)
(iv) Primary constituent element 4: Habitat to support the transience and colonization phases of dispersal, which in all cases would optimally be composed of nesting, roosting, or foraging habitat (PCEs 2 or 3), but which may also be composed of other forest types that occur between larger blocks of nesting, roosting, and foraging habitat. In cases where nesting, roosting, or foraging habitats are insufficient to provide for dispersing or nonbreeding owls, the specific dispersal habitat PCEs for the northern spotted owl may be provided by the following:
(A) Habitat supporting the transience phase of dispersal, which includes:
(B) Habitat supporting the colonization phase of dispersal, which is generally equivalent to nesting, roosting and foraging habitat as described in PCEs 2 and 3, but may be smaller in area than that needed to support nesting pairs.
(3) Critical habitat does not include:
(i) manmade structures (such as buildings, aqueducts, runways, roads, other paved areas, or surface mine sites) and the land on which they are located; and
(ii) meadows, grasslands, oak woodlands, or aspen woodlands as described below existing on January 3, 2013 and not containing primary constituent elements 1 and 2, 3, or 4 as described in paragraph (2) of this entry.
(A) Meadows and grasslands include: dry, upland prairies and savannas in valleys and foothills of western Washington, Oregon, and northwest California; subalpine meadows; and grass and forb dominated cliffs, bluffs and grass balds found throughout these same areas. These areas are dominated by native grasses and diverse forbs, and may include a minor savanna component of Oregon white oak, Douglas-fir, or Ponderosa pine.
(B) Oak woodlands are characterized by an open canopy dominated by Oregon white oak. These areas may also include ponderosa pine, California black oak, Douglas-fir, or canyon live oak. The understory is relatively open with shrubs, grasses and wildflowers. Oak woodlands are typically found in drier landscapes and on south-facing slopes. This exception for oak woodlands does not include tanoak (
(C) Aspen (
(4) We have determined that the physical and biological features in habitat occupied by the species at the time it was listed, as represented by the primary constituent elements, may require special management considerations or protection as required by 16 U.S.C. 1532(5)(A). However, nothing in this rule requires land managers to implement, or precludes land managers from implementing, special management or protection measures.
(5)
(6)
(7)
(8)
(9) Unit 1: North Coast Ranges and Olympic Peninsula, Oregon and Washington. Maps of Unit 1: North Coast Ranges and Olympic Peninsula, Oregon and Washington, follow:
(10) Unit 2: Oregon Coast Ranges, Oregon. Map of Unit 2, Oregon Coast Ranges, Oregon, follows:
(11) Unit 3: Redwood Coast, Oregon and California. Map of Unit 3, Redwood Coast, Oregon and California, follows:
(12) Unit 4: West Cascades North, Washington. Map of Unit 4, West Cascades North, Washington, follows:
(13) Unit 5: West Cascades Central, Washington. Map of Unit 5, West Cascades Central, Washington, follows:
(14) Unit 6: West Cascades South, Washington. Map of Unit 6, West Cascades South, Washington, follows:
(15) Unit 7: East Cascades North, Washington and Oregon. Maps of Unit 7, East Cascades North, Washington and Oregon, follow:
(16) Unit 8: East Cascades South, California and Oregon. Map of Unit 8, East Cascades South, California and Oregon, follows:
(17) Unit 9: Klamath West, Oregon and California. Map of Unit 9: Klamath West, Oregon and California, follows:
(18) Unit 10: Klamath East, California. Map of Unit 10: Klamath East, California, follows:
(19) Unit 11: Interior California Coast, California. Map of Unit 11: Interior California Coast, California, follows:
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service, revise the critical habitat for the Riverside fairy shrimp under the Endangered Species Act of 1973, as amended. The previous critical habitat consisted of land in four units in Ventura, Orange, and San Diego Counties, California. We now designate land in three units in Ventura, Orange, and San Diego Counties, California, for a total of approximately 1,724 ac (698 ha), which represents critical habitat for this species. Areas in Riverside County are excluded from critical habitat in this final revised rule.
This rule becomes effective on January 3, 2013.
This final rule and the associated final economic analysis are available on the Internet at
The coordinates or plot points or both from which the maps for this critical habitat designation were generated are included in the administrative record and are available on our Internet site (
Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for Riverside fairy shrimp. We are designating:
• Approximately 466 acres (ac) (189 hectares (ha)), in 2 subunits, as critical habitat in Ventura County.
• Approximately 396 ac (160 ha), in 4 subunits, as critical habitat in Orange County.
• Approximately 862 ac (348 ha), in 7 subunits, as critical habitat in San Diego County.
In total, we are designating approximately 1,724 ac (698 ha) as critical habitat for this species. We are also:
• Exempting 1,988 ac (804 ha) from critical habitat designation in Orange County and San Diego County.
• Excluding 1,259 ac (510 ha) from critical habitat designation in Orange County, Riverside County, and San Diego County.
It is our intent to discuss in this final rule only those topics directly relevant to the revision of critical habitat for the Riverside fairy shrimp under the Act (16 U.S.C. 1531
The Riverside fairy shrimp was listed as an endangered species on August 3, 1993 (58 FR 41384). For a history of Federal actions prior to 2001, please refer to the September 21, 2000, proposed critical habitat rule (65 FR 57136). On May 30, 2001, we published a final rule designating critical habitat for the Riverside fairy shrimp (66 FR 29384). On November 6, 2001, the Building Industry Legal Defense Foundation, Foothill/Eastern Transportation Corridor Agency, National Association of Home Builders, California Building Industry Association, and Building Industry Association of San Diego County filed a lawsuit in the U.S. District Court for the District of Columbia challenging the
On April 27, 2004, we again proposed to designate critical habitat for the Riverside fairy shrimp (69 FR 23024). The final critical habitat rule was published in the
(1) We added updated information on the general impacts of climate change and its potential impacts to Riverside fairy shrimp in the
(2) We added a discussion to the
Regardless of the occupancy status (documented or presumed; pre- or post-listing) of each unit, in Table 1 of the March 1, 2012, publication (77 FR 12543), we provided our justification for determining why these areas are essential for the conservation of the species under section 3(5)(A)(ii) of the Act. For those units for which we lack data confirming occupancy at the time of listing, we are alternatively designating them under section 3(5)(A)(ii) because they are essential for the conservation of Riverside fairy shrimp and a designation limited to areas confirmed to be occupied at the time of listing would be inadequate to ensure the conservation of the species. We provide further explanation of our method and rationale for defining critical habitat boundaries in the
(3) Based on a public comment, we updated the name of the vernal pool complex at Marine Corps Air Station (MCAS) Miramar from “AA 1-7, 9-13 East Miramar (Pool 10) (AA1 East)” to its recommended name “East Miramar (AA1 South + Group) (Pool 4786; previously Pool 12).”
(4) In the proposed revised critical habitat rule, Table 4 incorrectly identified 6 ac (3 ha) of land in Subunit 4c as State-owned. The land is actually owned by the North [San Diego] County Transit District. Table 3 in this final revised rule has been updated to show the correct land ownership.
(5) We are now excluding lands owned by the Department of Homeland Security (DHS) in Subunit 5b (29 ac (12 ha)) and a portion of the lands in Subunit 5h (11 ac (4 ha)) from this final critical habitat designation based on national security. This exclusion is consistent with the exclusion of DHS lands in our previous final critical habitat rule published April 12, 2005 (70 FR 19154), due to national security concerns related to the operation and maintenance of the Border Infrastructure System (BIS).
In our proposed revised critical habitat rule published June 1, 2011 (76 FR 31686), we sought comments on whether or not these Federal lands should be considered for exclusion under section 4(b)(2) of the Act for national security reasons, whether such exclusion is or is not appropriate, and whether the benefits of excluding any specific area outweigh the benefits of including that area as critical habitat and why. On October 16, 2012, DHS commented that designation of these lands could interfere with U.S. Customs and Border Patrol Protection activities along the border and urged exclusion of the lands for national security reasons. Based on the national security importance of DHS maintaining access to these border areas, the Secretary is exercising his discretion to exclude lands owned by DHS in this final critical habitat rule. Details on our rationale can be found in the “Exclusions Based on National Security Impacts” section below.
(6) In the June 1, 2011, proposed revised rule, we stated that we were considering excluding lands owned by or under the jurisdiction of the Orange County Central-Coastal Natural Community Conservation Plan/Habitat Conservation Plan (NCCP/HCP), the Orange County Southern Subregion HCP, the Western Riverside County MSHCP, City of Carlsbad Habitat Management Plan (HMP) under the San Diego Multiple Habitat Conservation Program (MHCP), and County of San Diego Subarea Plan under the MSCP. We have now made a final determination that the benefits of exclusion outweigh the benefits of inclusion of lands covered by these plans. Therefore, the Secretary is exercising his discretion to exclude approximately 89 ac (36 ha) covered by the Orange County Central-Coastal NCCP/HCP, 233 ac (94 ha) covered by the Orange County Southern Subregion
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Only where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat would the consultation requirements of section 7(a)(2) of the Act apply.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements (PCEs) such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. PCEs are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). The term “climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007a, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007a, p. 78).
Scientific measurements spanning several decades demonstrate that changes in climate are occurring, and that the rate of change has been faster since the 1950s. Examples include warming of the global climate system, and substantial increases in precipitation in some regions of the world and decreases in other regions. (For these and other examples, see IPCC 2007a, p. 30; and Solomon
Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of GHG emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions (for example, Meehl
Various changes in climate may have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables (for example, habitat fragmentation) (IPCC 2007b, pp. 8-14, 18-19). Identifying likely effects often involves aspects of climate change vulnerability analysis. Vulnerability refers to the degree to which a species (or system) is susceptible to, and unable to cope with, adverse effects of climate change, including climate variability and extremes. Vulnerability is a function of the type, magnitude, and rate of climate change and variation to which a species is exposed, its sensitivity, and its adaptive capacity (IPCC 2007a, p. 89; see also Glick
Global climate projections are informative, and, in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (for example, IPCC 2007a, pp. 8-12). Therefore, we use “downscaled” projections when they are available and have been developed through appropriate scientific procedures, because such projections provide higher resolution information that is more relevant to spatial scales used for analyses of a given species (see Glick
Documentation of climate-related changes that have already occurred in California (Croke
In southern California, climatic variables affecting vernal pool habitats are most influenced by distance from the coast, topography, and elevation (Bauder and McMillian 1998, p. 64). As presence and persistence of Riverside fairy shrimp appear to be associated with precipitation patterns, draw-down factors, and other regional climatic factors, including aridity (Eriksen and Belk 1999, p. 71), the likely impacts of climate change on ecological processes for Riverside fairy shrimp are most closely tied to availability and persistence of ponded water during the winter and spring. Vernal pools are particularly sensitive to slight increases in evaporation or reductions in rainfall due to their relative shallowness and seasonality (Field
Additionally, localized climate-related changes may alter the temporal
As discussed above, climate projections produced through Climate Wizard predict a decrease in annual rainfall by 2050. For a species that depends on long-term filling of vernal pools, any decrease in rainfall amount could affect the persistence of the species and the quality of available habitat. However, such projections are not straightforward, because filling of vernal pools may also depend on local watershed characteristics not directly related to annual rainfall. Additionally, the climate projections do not take storm events into account that could provide for filling of vernal pools. Therefore, designation of a wide variety of vernal pool habitat types is necessary to buffer against the projected future impacts of climate change. We find the designation herein provides for the array of habitat to provide for the conservation of the species.
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific physical or biological features essential for the Riverside fairy shrimp from studies of this species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the
Riverside fairy shrimp require vernal pool habitat to grow and reproduce. Their life cycle requires periods of inundation as well as dry periods (Ripley
Intact vernal pool hydrology (including the seasonal filling and drying down of pools) is the essential feature that governs the life cycle of the Riverside fairy shrimp. An intact hydrological regime includes seasonal hydration (during most but not all years) followed by drying out of the substrate to promote overwintering of cysts and provide conditions for a viable cyst bank for the following season. Proper timing of precipitation and the associated hydrological and soil processes in the upland watershed contribute to the provision of space for growth and normal behavior. Seasonal filling and persistence of the vernal pool are necessary for cyst hatching and successful reproduction of Riverside fairy shrimp (see “Sites for Breeding, Reproduction, and Rearing (or Development) of Offspring”, below).
To maintain high-quality vernal pool ecosystems, the vernal pool basin (a specific vernal pool and surrounding landscape) or complex and its upslope watershed (adjacent vegetation and upland habitat) must be available and functional (Hanes and Stromberg 1998, p. 38). Adjacent upland habitat supplies important hydrological inputs to sustain vernal pool ecosystems. Protection of the upland habitat between vernal pools within the watershed is essential to maintain the space needs of Riverside fairy shrimp and to buffer the vernal pools from edge effects. Having the spatial needs that create pools of adequate depth also supports the temporal needs of Riverside fairy shrimp, as deep pools provide for inundation periods of adequate length to support the entire life-history function and reproductive cycles necessary for Riverside fairy shrimp.
Vernal pools generally occur in complexes, which are defined as two or more vernal pools in the context of a larger vernal pool watershed. The local watershed associated with a vernal pool complex includes all surfaces in the surrounding area that flow into the vernal pool complex. Within a vernal pool complex, vernal pools are hydrologically connected to one another within the local geographical context. These vernal pool complexes may connect by either surface or subsurface flowing water. Pools and complexes are dependent on adjacent geomorphology and microtopography for maintenance of their unique hydrological conditions (Service 1998a, p. 23). Water may flow over the surface from one vernal pool to another (over-fill or overbanking), throughout a network of swales or low-point depressions within a watershed. Due to an impervious clay or hardpan layer, water can also flow and collect below ground, such that the soil remains saturated with water. The result of the movement of water through vernal pool systems is that pools fill and hold water continuously for a number of days, weeks, or months following the initial rainfall (Hanes
Impervious subsurface layers of clay or hardpan soils, combined with flat to gently sloping topography, inhibit rapid infiltration of rainwater and result in ponded water in vernal pools (Bauder and McMillian 1998, pp. 57-59). These soils also act as a buffer that moderates the water chemistry and rate of water loss to evaporation (Zedler 1987, pp. 17-30). In Ventura County, soil series known to support Riverside fairy shrimp include, but are not limited to, the Azule, Calleguas, Cropley, and Linne soil series. In Orange County, soils series include the Alo, Balcom, Bosanko, Calleguas, Cieneba, Myford, and Soper soil series. In western Riverside County, vernal pool habitat known to support Riverside fairy shrimp includes the Altamont, Auld, Bosanko, Cajalco, Claypit, Murrietta, Porterville, Ramona, Traver, and Willows soil series. In San Diego County, vernal pool habitat known to support Riverside fairy shrimp includes the Diablo, Huerhuero, Linne, Placentia, Olivenhain, Salinas, Stockpen, and Redding soil series. Soil series data are based on 2008 Soil Survey Data and are available online at:
Many fairy shrimp species are filter feeders with a diet that consists mostly of algae, bacteria, and other microorganisms (Parsick 2002, pp. 37-41, 65-70). In a natural vernal pool setting, these food items are readily available. Typically, an undisturbed, intact surface and subsurface soil structure (not permanently altered by anthropogenic land use activities such as deep, repetitive discing or grading), and the associated hydrogeomorphic processes within the basin and upland watershed, are necessary to provide food, water, minerals, and other physiological needs for Riverside fairy shrimp. Water temperature, water chemistry, and length of time that vernal pools are inundated are the important factors in the hatching and temporal appearance of Riverside fairy shrimp (Gonzalez
Ponding of vernal pool habitat (water) also provides cover and shelter for Riverside fairy shrimp. During the period when these habitats are inundated, water plays an important role in providing the necessary aquatic environment (shelter) for the fairy shrimp to complete its life-history requirements. Without water to protect them from desiccation, fairy shrimp would be unable to hatch, grow, mature, reproduce, and disperse within the vernal pool habitat (Helm 1998, p. 136; Service 1998a, p. 34; Eriksen and Belk 1999, pp. 71, 105). Additionally, the wet (ponding) period excludes plant and animal species that are exclusively terrestrial, providing a level of shelter from predation and competition for the fairy shrimp, which are adapted to short-lived, ephemeral wetland habitats.
The undisturbed soil bank also provides cover and shelter for fairy shrimp cysts during the draw-down period of the vernal pool habitat. The drying phase allows reproductive cysts to overwinter, as they lay dormant in the soil. Basin soils provide cover and shelter to Riverside fairy shrimp as the vernal pool dries out (Simovich and Hathaway 1997, p. 42; Eriksen and Belk 1999, p. 105). By maintaining the population in a dormant state, reproductive cysts and the undisturbed soil in which they rest protect Riverside fairy shrimp from predators and competitors during the vernal pool dry period. Cyst dormancy is an important life-history adaptation for surviving arid phases, and is important for synchronizing life cycles in unstable and ephemeral wetland habitats (Belk and Cole 1975, pp. 209-210). Like the wet period exclusion of terrestrial plants, the draw-down period excludes species that are exclusively aquatic (such as fish), providing shelter for specially adapted Riverside fairy shrimp.
Mature Riverside fairy shrimp are typically observed from mid-March through April (Eng
Because the length of time that pools remain filled in vernal pool ecosystems is highly variable, Riverside fairy shrimp have become adapted to some degree of unpredictability in their habitat (Eriksen and Belk 1999, pp. 104-105) and to a system where the requisite conditions are transitory. Depending on rainfall and environmental conditions, a vernal pool may fill and recede numerous times. Often, the pool may evaporate before Riverside fairy shrimp are able to mature and reproduce (Ripley
Researchers have found that only a small proportion of Riverside fairy shrimp cysts in the cyst bank hatch each time the vernal pool fills. Therefore, if the pool dries before the species is able to mature and reproduce, there are still many more cysts left in the soil that may hatch the next time the pool fills (Simovich and Hathaway 1997, p. 42). Simovich and Hathaway (1997, pp. 40-43) referred to this as bet-hedging and concluded that it allows fairy shrimp, including Riverside fairy shrimp, to survive in an unpredictable environment. Bet-hedging ensures that some cysts will be available for hatching when the vernal pools hold water for a period long enough for Riverside fairy shrimp to complete their entire life cycle. Thus, reproductive output is spread over several seasons for small aquatic crustaceans, such as fairy shrimp, living in variable environments. Allowing conditions within the above parameters to occur on a natural basis is essential for the survival and conservation of Riverside fairy shrimp.
Pools that support Riverside fairy shrimp are generally found in flat or moderately sloping areas, primarily in annual, disturbed (such as grazed or deep disced) grassland and chaparral habitats. The majority of complexes and pools that currently support Riverside fairy shrimp have experienced some level of disturbance, primarily from agriculture, cattle, and OHV activity.
Estimates of the historical distribution of Riverside fairy shrimp suggest that 90 to 97 percent of vernal pool habitat has been lost in southern California (Mattoni and Longcore 1997, pp. 71-73, 86-88; Bauder and McMillan 1998, p. 66; Keeler-Wolf
The conservation of Riverside fairy shrimp is dependent on several factors including, but not limited to, maintenance of areas (of sufficient size and configuration to sustain natural ecosystem components, functions, and processes) that provide appropriate inundation and ponding durations, natural hydrological regimes and appropriate soils, intermixed wetland and upland watershed, connectivity among pools within geographic proximity to facilitate gene flow among complexes, and protection of existing vernal pool composition and structure.
In a few locations, two species of fairy shrimp—San Diego fairy shrimp and Riverside fairy shrimp—are known to co-occur (Hathaway and Simovich 1996, p. 670). However, where these species do co-occur, they rarely have been observed to coexist as adults (Hathaway and Simovich 1996, p. 670). San Diego fairy shrimp are usually found earlier in the season than Riverside fairy shrimp, due to the Riverside fairy shrimp's slower rate of development (Hathaway and Simovich 1996, p. 675). Maturation rates are responsible for the sequential appearance of the species as adults in pools where they co-occur (Hathaway and Simovich 1996, p. 675). Neither species is found in the nearby desert or mountain areas, as temperature has been shown to play an important role in the spatial and temporal appearance of fairy shrimp.
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of Riverside fairy shrimp in areas occupied at the time of listing, focusing on the features' primary constituent elements. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to Riverside fairy shrimp are:
(1) Ephemeral wetland habitat consisting of vernal pools and ephemeral habitat that have wet and dry periods appropriate for the incubation, maturation, and reproduction of the Riverside fairy shrimp in all but the driest of years, such that the pools:
(a) Are inundated (pond) approximately 2 to 8 months during winter and spring, typically filled by rain, and surface and subsurface flow;
(b) Generally dry down in the late spring to summer months;
(c) May not pond every year; and
(d) Provide the suitable water chemistry characteristics to support the Riverside fairy shrimp. These characteristics include physiochemical factors such as alkalinity, pH, temperature, dissolved solutes, dissolved oxygen, which can vary depending on the amount of recent precipitation, evaporation, or oxygen saturation; time of day; season; and type and depth of soil and subsurface layers. Vernal pool habitat typically exhibits a range of conditions but remains within the physiological tolerance of the species. The general ranges of conditions include, but are not limited to:
(i) Dilute, freshwater pools with low levels of total dissolved solids (low ion levels (sodium ion concentrations generally below 70 millimoles per liter (mmol/l)))
(ii) Low alkalinity levels (lower than 80 to 1,000 milligrams per liter (mg/l)); and
(iii) A range of pH levels from slightly acidic to neutral (typically in range of 6.4-7.1).
(2) Intermixed wetland and upland habitats that function as the local watershed, including topographic features characterized by mounds, swales, and low-lying depressions within a matrix of upland habitat that result in intermittently flowing surface and subsurface water in swales, drainages, and pools described in PCE 1. Associated watersheds provide water to fill the vernal or ephemeral pools in the winter and spring months. Associated watersheds vary in size and therefore cannot be generalized, and they are affected by factors including surface and underground hydrology, the topography of the area surrounding the pool or pools, the vegetative coverage, and the soil substrates in the area. The size of associated watersheds likely varies from a few acres to greater than 100 ac (40 ha).
(3) Soils that support ponding during winter and spring which are found in areas characterized in PCEs 1 and 2 that have a clay component or other property that creates an impermeable surface or subsurface layer. Soil series with a clay component or an impermeable surface or subsurface layer typically slow percolation, increase water run-off (at
(a) The Azule, Calleguas, Cropley, and Linne soils series in Ventura County;
(b) The Alo, Balcom, Bosanko, Calleguas, Cieneba, and Myford soils series in Orange County;
(c) The Cajalco, Claypit, Murrieta, Porterville, Ramona, Traver, and Willows soils series in Riverside County; and
(d) The Diablo, Huerhuero, Linne, Placentia, Olivenhain, Redding, Salinas, and Stockpen soils series in San Diego County.
This final rule identifies the PCEs necessary to support one or more of the life-history functions of Riverside fairy shrimp and those areas containing the PCEs. We conclude that conservation of the Riverside fairy shrimp is dependent upon multiple factors. We consider the criteria for conservation of Riverside fairy shrimp to include: (1) Conservation and management of areas across the species' range that maintain normal hydrological and ecological functions where existing populations survive and reproduce and that are representative of the geographical distribution of the species; (2) conservation of areas representative of the ecological distribution of Riverside fairy shrimp (various combinations of soil types, vernal pool chemistry, geomorphic surfaces, and vegetation community associations), and (3) conservation of areas that allow for the movement of cysts between areas representative of the geographical and ecological distribution of the species (within and between vernal pool complexes).
We are designating most of the known occupied habitat of Riverside fairy shrimp because: (1) Riverside fairy shrimp are not migratory; (2) disjunct populations likely represent unique, locally adapted populations (adapted to unique site-specific or habitat-specific environmental conditions); and (3) gene exchange that should naturally occur between populations or critical habitat units is likely infrequent. Where management units are sufficiently distant (16 to 159 miles (mi) (26 to 256 kilometers (km)) from one another, the likelihood of gene exchange is reduced. All of the areas designated contain all of the PCEs essential for the species that may require special management considerations or protection, and they: (1) Maintain the genetic variability of Riverside fairy shrimp across its known geographical range and allow for a varying nature and expression of the species; (2) allow for natural levels of gene flow and dispersal where possible, in order to accommodate natural processes of local extirpation and colonization over time (and thereby reduce the risk of extinction through random and natural events); and (3) maintain a full range of varying habitat types and characteristics for the species by encompassing the full extent of the physical, biological, and environmental conditions essential for the conservation of Riverside fairy shrimp.
Not all life-history functions require all of the PCEs. For example, Riverside fairy shrimp can persist as cysts for several years when the vernal pools are not filled to the proper depth (note also PCE 1c, which recognizes that vernal pools occupied by Riverside fairy shrimp may not fill every year). Therefore, at any given time and particularly in the dry summer months, not all areas designated as revised critical habitat will demonstrate all aspects of the PCEs. However, over the longer time scale that represents the normal life-history functions of Riverside fairy shrimp, all of the PCEs are present in all of the units. Therefore, in consideration of that longer scale, we confirm that all units in this final critical habitat designation contain all of the PCEs. Further, all units and subunits designated as critical habitat are currently known to be occupied by Riverside fairy shrimp (with the exception of Subunit 1b, which is presumed to be occupied by Riverside fairy shrimp although not every portion of every unit and subunit is occupied by Riverside fairy shrimp. As discussed above, Riverside fairy shrimp require a functioning local watershed that results in intermittently flowing surface and subsurface water to fill the vernal pool basins in which the species occurs (PCE 2). Thus each unit and subunit consists of occupied vernal pool basins and the surrounding local watersheds that intermittently fill those basins. See the Final Critical Habitat Designation section below for more details.
When designating critical habitat, we first assess whether there are specific areas within the geographical area occupied by the species at the time of listing that contain features essential to the conservation of the species that may require special management considerations or protection before considering whether any areas outside the geographical area occupied by the species at the time of listing may be essential for its conservation. The determination that special management may be required is not a prerequisite to designating critical habitat in areas essential for the conservation of the species that are outside the geographical area occupied at the time of listing. However, all areas (units/subunits) we are designating as revised critical habitat in this final rule, whether or not confirmed occupied or unoccupied at the time of listing, contain essential features that require special management considerations or protection to address current and future threats to Riverside fairy shrimp, maintain or enhance the features, and ensure the recovery and survival of the species.
The physical or biological features in areas designated as revised critical habitat in this final rule all face ongoing threats that require special management considerations or protection. For Riverside fairy shrimp, such threats include vernal pool elimination due to agricultural and urban development, including activities associated with construction of infrastructure (such as highways, utilities, and water storage) (PCEs 1, 2, 3); construction of physical barriers or impervious surfaces around a vernal pool complex (PCEs 1, 2); altered water quality or quantity (PCEs 1, 3) due to channeling water runoff into a vernal pool complex or to the introduction of water, other liquids, or chemicals (including herbicides and pesticides) into the vernal pool basin; physical disturbance to the claypan and hardpan soils within the vernal pool basin (PCEs 1, 3), including discharge of dredged or fill material into vernal pools and erosion of sediments from fill material; disturbance of soil profile by grading, digging, or other earthmoving work within the basin or its upland slopes or by other activities such as OHV use, heavy foot traffic, grazing, vegetation removal, fire management, or road construction within the vernal pool watershed (PCEs 1, 2, 3); invasion of nonnative plant and animal species into the vernal pool basin (PCEs 1, 2), which alters hydrology and soil regimes within the vernal pool; and any activity that permanently alters the function of the underlying claypan or hardpan soil layer (PCE 3), resulting in disturbance or destruction of vernal pool flora or the associated upland watershed (PCEs 2, 3). All of these threats have the potential to permanently reduce or increase the depth of a vernal pool, ponding duration and inundation of the vernal pool, or other vernal pool features beyond the tolerances of Riverside fairy shrimp (PCE 1).
Loss and degradation of wetland habitat, most directly from conversion
Because the flora and fauna in vernal pools or swales can change if the hydrological regime is altered (Bauder 1986b), human activities that reduce the extent of the watershed or alter runoff patterns (timing, amount, or flow of water) (PCE 2) may also eliminate Riverside fairy shrimp, reduce their population size or reproductive success, or alter the duration or filling of basins such that the location of sites inhabited by this species may shift. Changes to hydrological patterns due to cattle trampling, OHV use, human trampling, road development, military activities, and water management activities impact vernal pools (PCEs 1, 2, 3) (58 FR 41387, August 3, 1993). Impacts to Riverside fairy shrimp such as the species' genetic diversity and patterns of gene flow, persistence from reductions in air and water quality due to human urbanization, or changes in nutrient availability associated with altered hydrology may be exacerbated by the species' highly fragmented and restricted range (Bauder 1986b, pp. 209-211).
Unpredictable natural events, such as fire, can be especially devastating due to the fragmented and restricted range of the species (58 FR 41390, August 3, 1993). Vernal pool habitat is naturally subject to wildfires, and cysts of other fairy shrimp species are known to survive fire events (Zedler 1987, p. 96; Wells
Changes in hydrology that affect the Riverside fairy shrimp's PCEs are caused by activities that alter the surrounding topography or change historical water flow patterns in the watershed (PCEs 2, 3). Even slight alterations in the hydrology can change the depth, volume, and duration of ponding inundation; water temperature; soil; mineral and organic matter transport to the pool; and water quality and chemistry, which in turn can make the ephemeral wetland habitat (PCE 1) unsuitable for Riverside fairy shrimp. Activities that impact the hydrology include, but are not limited to, road building, grading and earth moving, impounding natural water flows, and draining of pools or their immediately surrounding upland watershed. Impacts to the hydrology of vernal pools can be managed through avoidance of such activities in and around the pools and the associated surrounding upland areas.
Disturbance to the impermeable substrate layer of claypan and hardpan soils within vernal pools occupied by Riverside fairy shrimp (PCE 3) may alter the depth, ponding inundation, water temperature, and water chemistry. Physical disturbances to claypan and hardpan soils may be caused by excavation of borrow material (soil or sediments), OHV use, military training activities, repeated or deep agricultural discing, drilling during construction activities, or creation of berms that obstruct the natural hydrological surface or subsurface flow of water runoff and precipitation. Impacts to the soils of vernal pools can be managed through avoidance of these activities in and around the pools and the associated surrounding upland areas.
Nonnative plant species may alter ponding inundation and water temperature by changing the evaporation rate and shading of standing water in vernal pools (PCEs 1, 2). Invasive plant species, such as
Further discussion of specific threats to the PCEs in individual critical habitat units is provided in the unit descriptions below. In these revised critical habitat units, special management considerations or protection may be needed to ensure the long-term existence and management of ephemeral and upland habitat sufficient for the Riverside fairy shrimp's successful reproduction and growth, adequate feeding habitat, proper physiochemical and environmental regimes, linked hydrology, and connectivity within the landscape.
As required by section 4(b)(1)(A) of the Act, we use the best scientific and commercial data available in determining areas within the geographical area occupied at the time of listing that contain the features essential to the conservation of the Riverside fairy shrimp. In accordance with the Act and its implementing regulations at 50 CFR 424.12(e), we considered whether designating additional areas outside the geographical area occupied at the time of listing are essential to ensure the conservation of the species. At the time of listing, Riverside fairy shrimp were known to occupy nine vernal pool complexes within Orange, Riverside, and San Diego Counties, California, and Baja California, Mexico. Occupied complexes included four vernal pools in Riverside County, one population in Orange County, two complexes in San Diego County, and two locations in Baja California, Mexico (58 FR 41384; August 3, 1993).
In determining which areas within the geographical area occupied at the time of listing currently contain the physical or biological features essential to the conservation of Riverside fairy shrimp, we used all available scientific and commercial data, including information from the 1991 proposed listing rule (56 FR 57503, November 12, 1991), the 1993 final listing rule (58 FR 41384, August 3, 1993), the 1998 Recovery Plan (Service 1998a, pp. 1-113), the 2008 5-year review for Riverside fairy shrimp (Service 2008, pp. 1-57), the California Department of Fish and Game's (CDFG) California Natural Diversity Data Base
We acknowledge the geographical area known to be occupied by the species in the United States as presented in the listing rule (58 FR 41384; August 3, 1993) is that area bounded by the coastline to the west, east to an area near tribal land of the Pechanga Band of Luiseño Mission Indians of the Pechanga Reservation, California, in western Riverside County, north into the central foothills of Orange County near the former Marine Corps Air Station (MCAS) El Toro, and south to coastal mesa tops along the United States-Mexico Border in San Diego County. However, as with many species, listing often results in greater efforts to conduct surveys that may reveal more information related to specific occurrences across a greater geographical area than were initially known (76 FR 31690; June 1, 2011). The current known range of Riverside fairy shrimp is from Ventura County to the United States-Mexico Border in San Diego County, a north-south distance of approximately 163 miles (mi) (262 kilometers (km)) within southern California and inland from the Pacific Coast 50 mi (80 km), based on all available species occurrence data pre- and post-listing. Two additional records documented Riverside fairy shrimp in northwestern Baja California, Mexico, at the time the species was listed (58 FR 41384). Extant occurrences are located within four counties in southern California: Ventura, Orange, Riverside, and San Diego.
When we developed our proposed critical habitat, we considered areas where Riverside fairy shrimp have been documented since listing (1993), including areas outside the geographical range of the species as presented in the listing rule, to be “within the geographical area occupied by the species at the time of listing [in 1993]” (see proposed rule at 76 FR 31689, June 1, 2011, and discussion below). Based on our review of the species' biology and life-history traits, we conclude that occurrences documented since the 1993 listing do not represent an expansion of the species' distribution and range, but rather reflect our better understanding of the distribution and range of the species at the time of listing (Service 2008, p. 9).
The life history of Riverside fairy shrimp supports the conclusion that many of the pools surveyed after publication of the listing rule were, in fact, occupied at the time of listing. Riverside fairy shrimp are relatively sedentary and possess limited dispersal capabilities (Davies
Riverside fairy shrimp have a relatively long maturation time (Simovich 1998, p. 111), which limits the species to deeper pools with longer ponding durations (Hathaway and Simovich 1996, p. 675). Riverside fairy shrimp exhibit a diversified bet-hedging reproductive strategy (Simovich and Hathaway 1997, p. 42). In other words, the species spreads reproductive effort over more than one ponding event through diapause of eggs (production of a cyst bank) and the hatching of a fraction of the cyst bank (Simovich and Hathaway 1997, p. 42; Philippi
Riverside fairy shrimp are restricted to certain pool types (deep, long-ponding, along coastal mesas or in valley depressions) with certain underlying soils (Bauder and McMillian 1998, p. 57), which have variable but specific water chemistry (Gonzalez
Based on these habitat and life-history traits, we conclude that the additional occurrences detected since listing, both within and to the north of the species' known geographical area at the time of listing, were likely present in those areas prior to listing, but the presence of the species was not known because protocol surveys had not been conducted prior to listing. Occurrences documented since the 1993 listing should not be construed to represent an expansion of the species' distribution and range, but rather to reflect our current and better understanding of the distribution and range of the species at the time of listing based on the best information available to us at this time (Service 2008, p. 9).
After publication of the June 1, 2011, proposed rule but before the March 1, 2012, publication, the Federal Circuit Court of Appeals for the District of Columbia invalidated a portion of the final rule designating critical habitat for the San Diego fairy shrimp under section 3(5)(A)(i) of the Act. The court concluded that the Service lacked adequate information to support its conclusion that the area in question was occupied at the time of listing and qualified as critical habitat under section 3(5)(A)(i) (
In light of that ruling, we reiterate that Unit 1 (1a, 1b), Unit 2 (2dA, 2dB, 2e, 2f, 2g, 2h, 2i), Unit 3 (3c, 3d, 3e, 3h), Unit 4 (4c), and Unit 5 (5a, 5b, 5c, 5e, 5f, 5g, 5h) meet the definition of critical habitat under section 3(5)(A)(i) of the Act (i.e., are areas within the geographical area occupied by the Riverside fairy shrimp at the time of listing) for the reasons explained in our March 1, 2012, publication (77 FR 12543) despite the absence of proof of occupancy at the time of listing. However, assuming such areas would not meet the definition of critical habitat under section 3(5)(A)(i) of the Act under the
These remaining five occurrences (representing three subunits) alone are not sufficient to conserve Riverside fairy shrimp. In addition, all of the areas that support extant occurrences of Riverside fairy shrimp face threats including development, habitat fragmentation, altered hydrology, livestock grazing, nonnative vegetation, military activities, pollution, dumping, human disturbance, and climate change (Service 2008, pp. 12-37; see also the
We identify three subunits (Subunit 2c, 3f, and 5d) as meeting the definition of critical habitat under section 3(5)(A)(i) of the Act because the areas were known to be occupied at the time of listing. We identify Subunit 3g as meeting the definition of critical habitat under section 3(5)(A)(ii) of the Act because the pool was created after the time of listing and because we consider it to be essential for the conservation of the species. We consider the remaining 21 subunits (Subunits 1a, 1b; Subunits 2dA, 2dB, 2e, 2f, 2g, 2h, 2i; Subunits 3c, 3d, 3e, 3h; Subunit 4c; Subunits 5a, 5b, 5c, 5e, 5f, 5g, 5h) to meet the definition of critical habitat under section 3(5)(A)(i) of the Act. However, because we lack definitive evidence of their occupancy at the time of listing, which under
Our identification of these units and of habitat essential to the conservation of Riverside fairy shrimp takes into consideration the conservation approach described in the 1998 Recovery Plan and considers areas identified therein as necessary for the species' stabilization and recovery. The 1998 Recovery Plan identifies management areas on which the long-term conservation and recovery of Riverside fairy shrimp depend. Appendices F and G in the 1998 Recovery Plan defined known vernal pool complexes essential to the conservation of several vernal pool species, including Riverside fairy shrimp (Service 1998a, pp. F1-G3). Eight distinct management areas were identified based on plant and animal distribution, soil types, and climatic variables (Service 1998a, pp. 38-39). Management areas include vernal pools and complexes known to be occupied and essential to the conservation of Riverside fairy shrimp.
We have used these same eight management areas and names, where possible, to assist us in identifying specific areas essential to the conservation of the Riverside fairy shrimp. In cases where new occurrence data identify occupied vernal pools not identified in the 1998 Recovery Plan, we have relied on the best available scientific data to update map coverage (for example, in Orange and Riverside Counties). Our 2005 final rule (70 FR 19154) used locations identified in Appendices F and G of the 1998 Recovery Plan; however, for this final revised critical habitat rule (due to revisions to the PCEs and improvements in mapping methodologies), some additions and subtractions have
We are designating critical habitat in specific areas that include ephemeral wetland habitat and intermixed wetland and upland habitats of various sizes; possess appropriate soils and topography that support ponding during winter and spring; are within the known geographical and elevational range of Riverside fairy shrimp; are geographically distributed throughout the range of the species; represent unique ecological or biological features and associations; and will help protect against stochastic extirpation, allow for local adaptation, and provide connectivity to facilitate dispersal and genetic exchange. By protecting a variety of habitats throughout the species' range, we increase the probability that the species can adjust in the future to various limiting factors that may affect the population, such as changes in abundance and timing of precipitation.
As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. The steps we followed in identifying critical habitat are described in detail below.
(1) We determined, in accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, the physical or biological features that are essential to the conservation of the species (see the
(2) We compiled all available observational data on Riverside fairy shrimp into a GIS database. Data on locations of Riverside fairy shrimp occurrences are based on collections and observations made by biologists, biological consultants, and academic researchers. We compiled data from the following sources to create our GIS database for Riverside fairy shrimp: (a) Data used in the 1998 Recovery Plan, 2005 final critical habitat rule for Riverside fairy shrimp, and 2008 5-year review for Riverside fairy shrimp; (b) the CNDDB data report and accompanying GIS records for Riverside fairy shrimp (CNDDB 2010, pp. 1-9); (c) data presented in the City of San Diego's Vernal Pool Inventory for 2002-2003 (City of San Diego 2004, pp. 1-125); (d) monitoring reports for Riverside fairy shrimp from Marine Corps Base (MCB) Camp Pendleton and MCAS Miramar; (e) the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) species GIS database; and (f) the Carlsbad Fish and Wildlife Office's (CFWO) internal species GIS database, which includes the species data used for the County of San Diego Multiple Species Conservation Plan (MSCP) and Western Riverside County MSHCP, reports from section 7 consultations, and Service observations of Riverside fairy shrimp (CFWO internal species GIS database). Compiled data were reviewed to ensure accuracy. Each data point in our database was checked to ensure that it represented an original collection or observation of Riverside fairy shrimp and that it was mapped in the correct location. Data points that did not match the description for the original collection or observation were remapped in the correct location or removed from our database.
(3) We determined which occurrences were extant at the time of listing, based on the 1993 listing rule, as well as information that has become available since the time of listing. We considered several sources in compiling the best available data on Riverside fairy shrimp vernal pool distribution and species' occurrence. We have concluded that, with the exception of Johnson Ranch Created Pool (Subunit 3g, which was created using cysts salvaged from a nearby historical occurrence at Redhawk development), all currently occupied vernal pools were also occupied and extant at the time of listing (see Background section and the specific unit descriptions below). We have drawn this conclusion because Riverside fairy shrimp have limited dispersal capabilities, and because surveys for the species at the time of listing were incomplete. We conclude that the documentation of additional occurrences within the range of Riverside fairy shrimp after it was listed was due to an increased survey effort for this species. However, as described above, we also find these areas are essential for the conservation of the species.
(4) We identified which areas contain the PCEs for Riverside fairy shrimp, and identified those areas that may require special management considerations or protection. Units were identified based on sufficient PCEs being present to support Riverside fairy shrimp life-history processes. Some units contain all of the identified PCEs and support multiple life stages (resting cyst, nauplii (recently hatched larvae), and adult). Areas that we have identified as having one or more PCEs: (a) Contain large interconnected ephemeral wetlands, large numbers of individuals, or habitat areas that allow for connections between existing occurrences of Riverside fairy shrimp; (b) represent important occurrences of this species on the geographic edge of its distribution; (c) contain occurrences that are more isolated from other occurrences by geographic features, but may represent unique adaptations to local features (biogeochemistry, hydrology, microclimate, soil mineralogy, soil fertility, soil formation processes, evolutionary time scale); or (d) exist within the distribution of the species and provide connections between occupied areas. The conservation of stable and persistent occurrences throughout the species' range helps to maintain connectivity and gene flow between occurrences that are in proximity to one another, as well as by preserving unique genetic assemblages in vernal pools across the range, including those pools not within close proximity to one another.
(5) We circumscribed boundaries of potential critical habitat, based on information obtained from the above steps. For areas containing the physical or biological features essential to the conservation of the species, we mapped the specific areas that contain the PCEs for Riverside fairy shrimp. First, we mapped the ephemeral wetland habitat in the occupied area using occurrence data, aerial imagery, and 1:24,000 topographic maps. We then mapped the intermixed wetland and upland habitats that function as the local watersheds and the topography and soils that support the occupied ephemeral wetland habitat. We mapped these areas to identify the gently sloping area associated with ephemeral wetland habitat and any adjacent areas that slope directly into the ephemeral wetland habitat, and that contribute to the hydrology of the ephemeral wetland habitat. We delineated the border of the revised critical habitat around the occupied ephemeral wetlands and associated local watershed areas to follow natural breaks in the terrain such as ridgelines, mesa edges, and steep canyon slopes.
(6) We removed all areas not containing the physical or biological features essential to the conservation of Riverside fairy shrimp. For example, when determining critical habitat boundaries, we made every effort to
(7) We exempted areas within the boundaries of MCB Camp Pendleton and MCAS Miramar in this final rule because we determined that these areas are exempt under section 4(a)(3)(B)(i) of the Act from critical habitat designation (see Exemptions section below).
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. The coordinates or plot points or both on which each map is based are available to the public on
We are designating 3 units, containing 13 subunits, as critical habitat for Riverside fairy shrimp. The three units are: Unit 1 (Ventura County), Unit 2 (Los Angeles Basin—Orange County Foothills), and Unit 5 (San Diego Southern Coastal Mesas). All of Unit 3 (Riverside County) and Unit 4 (San Diego North and Central Coastal Mesas) are excluded in this final rule. Table 3 shows all of the critical habitat units, including excluded acreages.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for Riverside fairy shrimp, below.
Unit 1 is located in central Ventura County and consists of two occupied subunits totaling approximately 466 ac (189 ha), with 31 ac (13 ha) of local land and 435 ac (176 ha) of private land. Unit 1 is within the geographical area occupied by the species at the time of listing. This unit includes vernal pools near the City of Moorpark in Ventura County at Tierra Rejada Preserve (formerly Carlsberg Ranch) on the west side of State Highway 23, and a basin to the southeast of the Carlsberg Ranch site called South of Tierra Rejada Valley, east of State Highway 23. This unit occurs within the larger Santa Clara-Calleguas/Calleguas-Conejo Tierra Rejada Valley watershed, within the east-west trending Transverse (mountain) Range. The Transverse Range system was formed by the interaction of an east-west oceanic fault zone with the San Andreas Fault. Because the interaction of the two fault systems has been extensive and continues with rapid local uplift, Riverside fairy shrimp habitat within the Transverse Range reflects past activities of tectonic processes and their effects on watershed development. Accelerated erosion, sedimentation, and debris processes, such as mud and rock flows, landslides, wind flows, and debris flows (soil development processes), contribute to a unique set of physiochemical and geomorphic features for pools occupied by Riverside fairy shrimp.
Subunit 1a is located near the City of Moorpark in southeastern Ventura County, California. This subunit is located on what was formerly known as the Carlsberg Ranch, at the north end of the Tierra Rejada Valley and just west of State Highway 23. It is near the northeast intersection of Moorpark Road and Tierra Rejada Road in a residential housing development. Subunit 1a consists of 18 ac (7 ha) of privately owned land. The vernal pool (pond), 4.6 acres (1.7 ha) in size, is located in the Tierra Rejada Vernal Pool Preserve, owned and managed by Mountains Recreation and Conservation Authority (MCRA). Subunit 1a contains areas identified in the 1998 Recovery Plan (Appendix F) as necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp.
We consider this subunit to have been occupied at the time of listing, and it is currently occupied. Subunit 1a is within the geographical area occupied by the species at the time of listing. Resting cysts were detected in recent soil analyses (C. Dellith 2010, pers. comm.) and adult fairy shrimp were observed on April 7, 2011 (J. Tamasi 2011, pers. comm.), the first observation of adults since the 2000-2001 ponding season. This area is essential to the conservation of this species for several reasons. The pool supports endangered
Subunit 1a contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including appropriate soil series (Azule, Calleguas, Linne; PCE 3) situated on a saturated fault between rocks of different permeability (“tectonogenic”; Hecht
Due to its unique geographic location and other features stated above, Subunit 1a is essential to the conservation of Riverside fairy shrimp. Although preliminary genetic studies are not definitive with regard to gene flow and genetic variability across the range of this species, populations at the edge of a species' distribution have been demonstrated to be important sources of genetic variation, may provide an important opportunity for colonization or recolonization of unoccupied vernal pools, and, thus, contribute to long-term conservation (and recovery) of the species (Gilpin and Soule´ 1986, pp. 32-33; Lande 1999, p. 6). Research on genetic differentiation among fairy shrimp species across their known distributions has demonstrated that geographically distinct populations may or may not be genetically distinct, but that they have unique genetic characteristics that may allow for adaption to environmental changes (Bohonak 2003, p. 3; Lahti
We are lacking specific documentation of Riverside fairy shrimp occupancy in Subunit 1a at the time of listing. However, Subunit 1a contains the physical or biological features necessary to the conservation of the species, and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, as discussed in the
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species (nonnative grasses and
Subunit 1b is located near the City of Moorpark in Ventura County, California. This subunit is approximately 1 mi (1.5 km) southeast of Subunit 1a and east of State Highway 23. Subunit 1b consists of 31 ac (13 ha) of locally owned land and 417 ac (169 ha) of private land. We assume that Subunit 1b was not identified in the 1998 Recovery Plan (Appendix F) because at that time we were unable to confirm occupancy. To the best of our knowledge, this subunit has never been protocol surveyed to confirm the presence or absence of Riverside fairy shrimp (C. Dellith 2010, pers. comm.). This subunit, however, was proposed and designated as critical habitat in the 2005 final revised critical habitat rule because we considered it occupied (see discussion below) and because the necessary PCEs were present. We continue to presume that Subunit 1b is occupied, despite the absence of protocol survey results, and have determined that the subunit contains the PCEs.
Subunit 1b is located approximately 1 mile to the south of Tierra Rejada Preserve (Subunit 1a) within the Tierra Rejada Valley watershed. Like Subunit 1a, this pool is one of the last representatives of what is believed to be a historical distribution of coastal terrace vernal pools common to the marine terraces and inland area of Ventura County prior to the 1950s (Hecht
Subunit 1b is designated as revised critical habitat because we have determined it is essential for the conservation of the species. It includes one or more pools capable of maintaining habitat function, genetic diversity, and species viability (Service 1998a, p. 65) for Riverside fairy shrimp at the northern limit of its current distribution, and is near, and likely has connectivity with, a known occupied location of ecological and distributional significance. It is also essential because the best supporting evidence indicates the basin contains the appropriate depth and ponding duration (PCE 1), soils and topography (PCEs 2 and 3), elevation, and water chemistry (pH, temperature, salinity, etc.; PCE 1) to satisfy the life-history needs of existing Riverside fairy shrimp populations.
Though the life history of Riverside fairy shrimp suggests that Subunit 1b was occupied at the time of listing, specific documentation of occupancy is lacking. Based on the biology and life history of Riverside fairy shrimp, we believe that the subunit was indeed occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing and contains all of the PCEs. However, as discussed in the
Unit 2 is located in central coastal Orange County and consists of 4 subunits totaling approximately 396 ac (160 ha) of privately owned land. Unit 2 falls within the Los Angeles Basin-Orange County Management Area as outlined in the 1998 Recovery Plan. The majority of vernal pools in this management area were extirpated prior to 1950, and only a small number of vernal pools remain in Los Angeles and Orange Counties (Service 1998a, p. 40).
This unit includes the vernal pools and vernal pool-like ephemeral ponds located along a north-south band in the Orange County Foothills. It includes examples of the historical distribution of coastal terraces at moderate elevations (183 to 414 m (600 to 1,358 ft)), and includes ephemeral ponds formed by landslides and fault activity, and remnant stream (fluvial) terraces along foothill ridgelines (Taylor
Unit 2 is within the geographical area occupied by the species at the time of listing. The areas within Unit 2 are occupied and contain the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and the topography and soils that support ponding during winter and spring months (PCE 3); in almost all cases, slow-moving or still surface water and saturated soils are present at or near vernal pool habitat. Conservation of an array of vernal pools that contain the physical or biological features essential to the conservation of Riverside fairy shrimp in the foothill region of Orange County provides for necessary habitat function, natural genetic diversity and exchange, and species viability in the central portion of the species' range.
Subunit 2dA is located in the community of Silverado in southern Orange County, California. This subunit is near the St. Michael's College Preparatory School, east of El Toro Road and southwest of Live Oak Canyon Road. Subunit 2dA consists of 252 ac (102 ha) of privately owned land. It contains areas identified in the 1998 Recovery Plan (Appendix F) as necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp, as well as other proposed and listed vernal pool species. This subunit is essential to the conservation and recovery of Riverside fairy shrimp because it is currently occupied and includes one or more pools necessary to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. This vernal pool complex includes a series of natural and impounded cattle troughs that have been breached and degraded by past agricultural activities and urban development. Additionally, Subunit 2dA is an important link to the northern occupied locations, and represents a nearby source for recolonization of pools in the Orange County foothills.
Subunit 2dA contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils that support ponding during winter and spring months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy in Subunit 2dA at the time of listing. However, Subunit 2dA contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, as discussed in the
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species, development, or grazing that may occur in the vernal pool basins. These threats could impact the water chemistry characteristics that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2). Please see the
Subunit 2dB is located approximately 1.5 km (1 mi) southeast of Subunit 2dA in southern Orange County, California. This subunit is west of Live Oak Canyon Road and northeast of the O'Neill Regional Park, near Cañada Gobernadora (see Subunit 2e below). In the 2008 5-year review, this area was referred to as “O'Neill Park/Clay Flats pond property” (Service 2008, p. 7). Subunit 2dB consists of 15 ac (6 ha) of privately owned land. Subunit 2dB was not specifically identified in the 1998 Recovery Plan (Appendix F), but is classified as necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp within the “Orange County Foothills (undescribed)” heading in Appendix F (Service 1998a, p. F1).
This subunit is essential for the conservation of Riverside fairy shrimp because it is currently occupied and includes one or more pools essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. Subunit 2dB contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils that support ponding during winter and spring months (PCE 3). A portion of this subunit lies at 1,413 ft (431 m), and is among the highest elevation occurrences of Riverside fairy shrimp.
We are lacking specific documentation of Riverside fairy shrimp occupancy in Subunit 2dB at the time of listing. However, Subunit 2dB contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, as discussed in the
The physical or biological features essential to the conservation of the species in this subunit may require
Subunit 2e is located near the city of Rancho Santa Margarita in southern Orange County, California, and is currently occupied. This subunit is east of Cañada Gobernadora and bounded to the west by State Highway 241. In the 2008 5-year review this area was referred to as “east of Tijeras Creek complex” (Service 2008, p. 7). Subunit 2e consists of 22 ac (9 ha) of private land. Subunit 2e was not specifically identified in the 1998 Recovery Plan (Appendix F), but was classified as necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp within the “Orange County Foothills (undescribed)” heading in Appendix F (Service 1998a, p. F1).
This subunit is essential for the conservation of Riverside fairy shrimp because it includes one or more pools essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. Areas within this subunit contain clay, clay loam, or sandy loam, and consist primarily of dry-land agriculture and sagebrush-buckwheat scrub habitat. Located in the water drainages of the foothills of the Santa Ana Mountains, this pool rests in a canyon bottomland at approximately 919 ft (280 m) of elevation.
Subunit 2e contains the physical or biological features essential to the conservation of Riverside fairy shrimp including clay soils and loamy soils underlain by a clay subsoil (PCE 3); areas with a natural, generally intact surface and subsurface soil structure (PCE 2); and the ephemeral habitat (PCE 1) that supports Riverside fairy shrimp, including slow-moving or still surface water and/or saturated soils. Subunit 2e also supports a stable, persistent occurrence of the species.
We are lacking specific documentation of Riverside fairy shrimp occupancy in Subunit 2e at the time of listing. However, Subunit 2e contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, as discussed in the
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species and anthropogenic activities (for example, surrounding residential and commercial development, unauthorized recreational use, OHV use, and fire management). These threats could impact the water chemistry characteristics that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2) as well as the vegetative coverage and soil substrates surrounding the pool (PCE 2). Please see the
Subunit 2h is located along the border between Orange and San Diego Counties, southeast of Richard Steed Memorial Park and north of Christianitos Road. Nearly half of this subunit (105 ac (42 ha)) occurs on Department of Defense (DOD) land on MCB Camp Pendleton, and is exempt from critical habitat under section 4(a)(3)(B)(i) of the Act. The other half of Subunit 2h consists of 107 ac (43 ha) of privately owned land. The portion of Subunit 2h that falls within DOD land, the “Cal State Parks Lease,” as described in the 2007 Integrated Natural Resources Management Plan (INRMP) (U.S. Marine Corps 2007, p. 2-30), is part of a lease agreement made between the U.S. Marine Corps and California State Department of Parks on September 1, 1971, for a 50-year term. Portions of Subunit 2h exempt from this final critical habitat rule include military thoroughfares (roads), military training with advanced coordination, utility easements, fire suppression activities, and public recreation. The presence of Riverside fairy shrimp in Subunit 2h was discovered after the 1993 listing rule and 1998 Recovery Plan were written.
This subunit is essential for the conservation of Riverside fairy shrimp because it is currently occupied and includes one or more pools essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). It represents an important ecological linkage for genetic exchange between the coastal mesa pools of San Diego and the Orange County Foothills occurrences. Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs.
Subunit 2h consists of two sag ponds (a pool that forms as a result of movement between two plates on an active fault line) at the eastern section of the unit and their associated upland watersheds on land within Orange County near the city of San Clemente. Subunit 2h contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils that support ponding during winter and spring months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy in Subunit 2h at the time of listing. However, Subunit 2h contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species and anthropogenic activities (for example, military activities, unauthorized recreational use, agricultural runoff, OHV use, and fire management). These threats could disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2) as well as the vegetative coverage and soil substrates surrounding the pool (PCE 2). Please see the
Unit 5 is located in Southern San Diego County and consists of seven subunits totaling 862 ac (349 ha). This unit contains 250 ac (101 ha) of State-owned land, 157 ac (64 ha) of locally owned land, and 455 ac (184 ha) of private land. This unit falls within the San Diego Southern Coastal Management Area, as identified in the 1998 Recovery Plan. Land we are designating as critical habitat includes vernal pool complexes within the jurisdiction of the Service, City of San Diego, County of San Diego, other DOD land, and private interests. This unit contains several mesa-top vernal pool complexes on western Otay Mesa (Bauder vernal pool complexes J2 N, J2 S, J2 W, J4, J5, J11 W, J11 E, J12, J16-18, J33) and eastern Otay Mesa (Bauder pool complexes J29-31, J33) as in Appendix D of City of San Diego (2004).
These vernal pool complexes are associated with coastal mesas from the Sweetwater River south to the U.S.-Mexico International Border, and represent the southernmost occurrences of Riverside fairy shrimp in the United States. This unit is also genetically diverse, including two haplotypes (a unique copy or form of a sequenced gene region) not found outside of the Otay Mesa area (Lahti
Subunit 5a is located in the City of San Diego in southern San Diego County, California. This subunit is at Sweetwater High School (site J33), south of the intersection between Otay Mesa and Airway Roads. Subunit 5a consists of 2 ac (less than 1 ha) of locally owned land and less than 1 ac (< 1 ha) of private land. Subunit 5a contains areas identified in the 1998 Recovery Plan (Appendix F) as necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp, as well as other proposed and listed vernal pool species.
This subunit is essential for the conservation of Riverside fairy shrimp because it includes one or more pools essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. This subunit is under the ownership of the Sweetwater Union High School District.
We lack specific documentation of Riverside fairy shrimp occupancy in Subunit 5a at the time of listing. However, Subunit 5a contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. As discussed in the
Subunit 5a contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils (Olivenhain cobbly loam soil series) that support ponding during winter and spring months (PCE 3). The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species, unauthorized recreational use and OHV use, and other human-related activities. These threats could impact the water chemistry characteristics that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2) as well as the vegetative coverage surrounding the pool (PCE 2). Please see the
Subunit 5c is located in the eastern Otay Mesa region of southern San Diego County, California. This subunit is approximately 1.75 mi (2.75 km) southeast of Kuebler Ranch and just north of the U.S.-Mexico Border. Subunit 5c consists of 57 ac (23 ha) of privately owned land. These lands fall within the County of San Diego Subarea Plan under the San Diego MSCP. Subunit 5c was not specifically identified in the 1998 Recovery Plan (Appendix F), but is classified as
This subunit is currently occupied; dry season surveys in 2011 by Busby Biological Services documented the presence of Riverside fairy shrimp cysts (Busby Biological Services 2011, entire). This subunit was first documented as occupied in 2000 (GIS ID 4). Though the stock pond in Subunit 5c was not surveyed by Lahti
This subunit is essential for the conservation of Riverside fairy shrimp because its occupied pool and surrounding watershed are essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. The vernal pool in this subunit has been impacted by OHV use, cattle grazing, development, and nonnative grasses. Subunit 5c contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils that support ponding during winter and spring months (PCE 3). This subunit also contains critical habitat for the endangered Quino checkerspot butterfly (
We lack specific documentation of Riverside fairy shrimp occupancy in Subunit 5c at the time of listing. However, Subunit 5c contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. As discussed in the
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species and anthropogenic activities (for example, development, OHV use, water runoff, and grazing). These threats could impact the water chemistry characteristics that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2) as well as the vegetative coverage and soil substrates surrounding the pool (PCE 2). Please see the
Subunit 5d is located in the Otay Mesa region of southern San Diego County, California. This subunit is to the east and west of State Highway 125, south of the Otay Valley, and north of the U.S.-Mexico Border. Subunit 5d consists of 347 ac (140 ha), including less than 1 ac (< 1 ha) of federally owned land, 205 ac (83 ha) of State-owned land (Caltrans), and 142 ac (57 ha) of private land. One vernal pool complex within Subunit 5d (J31) was not specifically identified in the 1998 Recovery Plan (Appendix F). However, pool J31 within the same watershed as pool complexes J29 and J30, both of which were listed as necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp within the “J2, J5, J7, J11-21, J23-30 Otay Mesa” heading in Appendix F (Service 1998a, p. F1). This subunit was confirmed occupied at the time of listing by protocol surveys, and is currently occupied. Subunit 5d is within the geographical area occupied by the species at the time of listing. Therefore, we are designating it under section 3(5)(A)(i) of the Act.
This subunit is essential for the conservation of Riverside fairy shrimp because it includes one or more pools essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. Subunit 5d is predominantly in the City of San Diego in San Diego County, California, although portions of pools J29-31 are within the County of San Diego's jurisdiction. This subunit contains a large area of habitat that supports sizable occurrences of Riverside fairy shrimp, and provides potential connectivity between occurrences of Riverside fairy shrimp in Subunits 5e and 5c. This subunit contains several mesa-top vernal pool complexes on eastern Otay Mesa (Bauder vernal pool complexes J22, J29, J30, J31 N, J31 S as in Appendix D of City of San Diego (2004) and Service GIS files). Subunit 5d contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils that support ponding during winter and spring months (PCE 3).
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species and anthropogenic activities (for example, OHV use, unauthorized recreational use, impacts from development (including water runoff), and fire management). These threats could impact the water chemistry characteristics that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2) as well as the
Subunit 5e is located in the Otay Mesa region of southern San Diego County, California. This subunit is approximately 1 mi (1.5 km) east of Ocean View Hills Parkway, 0.6 mi (1 km) north of State Highway 905, and bounded by Vista Santo Domingo to the east. Subunit 5e consists of 44 ac (18 ha), including 32 ac (13 ha) of locally owned land and 12 ac (5 ha) of private land. Subunit 5e was not specifically identified in the 1998 Recovery Plan (Appendix F), but is classified as necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp within the “J2, J5, J7, J11-21, J23-30 Otay Mesa” heading in Appendix F (Service 1998a, p. F1). This subunit is currently occupied.
This subunit is essential for the conservation of Riverside fairy shrimp because it includes one or more pools essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. Subunit 5e contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and the topography and soils that support ponding during winter and spring months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy in Subunit 5e at the time of listing. However, Subunit 5e contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, as discussed in the
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species and anthropogenic activities (for example, OHV use, unauthorized recreational use, impacts from development, and fire management). These threats could impact the water chemistry characteristics that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2) as well as the vegetative coverage and soil substrates surrounding the pool (PCE 2). Please see the
Subunit 5f is located in the Otay Mesa region of southern San Diego County, California, and consists of three pool complexes. All complexes are located north of State Highway 905 and southwest of Subunit 5e, with one complex in the lot southwest of Ocean View Hills Parkway, one bounded to the west by Hidden Trails Road, and one bounded to the west by Corporate Center Drive. Subunit 5f consists of 22 ac (9 ha) of locally owned land and 11 ac (4 ha) of private land. Subunit 5f was not mentioned by name in the 1998 Recovery Plan (Appendix F), but portions of vernal pool complexes within the units (J2 W and J2 S) were listed as necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp within the “J2, J5, J7, J11-21, J23-30 Otay Mesa” heading in Appendix F (Service 1998a, p. F1). This subunit is currently occupied.
This subunit is essential for the conservation of Riverside fairy shrimp because it includes one or more pools essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. Subunit 5f contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils that support ponding during winter and spring months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy in Subunit 5f at the time of listing. However, Subunit 5f contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, as discussed in the
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species and anthropogenic activities (for example, OHV use; unauthorized recreational use; impacts from development, including water runoff; and fire management). These threats could impact the water chemistry characteristics that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2) as well as the vegetative coverage and soil substrates surrounding the pool (PCE 2). Please see the
Subunit 5g is located in the Otay Mesa region of southern San Diego County, California. This subunit is south of State Highway 905, southeast of Caliente Avenue, west of Heritage Road, and northwest of Spring Canyon. Subunit 5g consists of 45 ac (18 ha) of State-owned land (Caltrans), 18 ac (7 ha) of locally owned land, and 72 ac (29 ha) of private land. Subunit 5g was not mentioned by name in the 1998 Recovery Plan (Appendix F), but is included in the list of vernal pool complexes necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp within the “J2, J5, J7, J11-21, J23-30 Otay Mesa” heading in Appendix F (Service 1998a, p. F1). This subunit is currently occupied.
This subunit is essential for the conservation of Riverside fairy shrimp because it includes one or more pools essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. Subunit 5g contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils that support ponding during winter and spring months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy in Subunit 5g at the time of listing. However, Subunit 5g contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, as discussed in the
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species and anthropogenic activities (for example, OHV use; unauthorized recreational use; impacts from development, (including water runoff and fire management). These threats could impact the water chemistry characteristics that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2) as well as the vegetative coverage and soil substrates surrounding the pool (PCE 2). Please see the
Subunit 5h is located in the Otay Mesa region of southern San Diego County, California. This subunit is north and west of Subunit 5b, bounded by the U.S.-Mexico Border to the south, and bisected by Jeep Trail. Subunit 5h consists of 83 ac (34 ha) of locally owned land (City of San Diego) and 161 ac (65 ha) of privately owned land. Subunit 5h was not mentioned by name in the 1998 Recovery Plan (Appendix F), but is included in the list of vernal pool complexes necessary to stabilize and protect (conserve) existing populations of Riverside fairy shrimp within the “J2, J5, J7, J11-21, J23-30 Otay Mesa” heading in Appendix F (Service 1998a, p. F1). This subunit is currently occupied.
This subunit is essential for the conservation of Riverside fairy shrimp because it includes one or more pools essential to maintain habitat function, genetic diversity, and species viability (Service 1998a, p. 65). Further, it is essential because the basin contains the appropriate depth and ponding duration, soils, elevation, and water chemistry (pH, temperature, salinity, etc.) to fulfill Riverside fairy shrimp's life-history needs. Subunit 5h contains the physical or biological features essential to the conservation of Riverside fairy shrimp, including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils that support ponding during winter and spring months (PCE 3).
We lack specific documentation of Riverside fairy shrimp occupancy in Subunit 5h at the time of listing. However, Subunit 5h contains the physical or biological features necessary to the conservation of the species and these features support life-history characteristics of Riverside fairy shrimp (such as the presence of cyst banks that indicate long-term occupancy of a vernal pool). The presence of these traits makes it likely that the subunit was occupied at the time of listing, and that it meets the definition of critical habitat under section 3(5)(A)(i) of the Act because it is within the geographical area occupied by the species at the time of listing. However, as discussed in the
The physical or biological features essential to the conservation of the species in this subunit may require special management considerations or protection to address threats from nonnative plant species and anthropogenic activities (for example, OHV use; unauthorized recreational use; impacts from development, including water runoff; and fire management). These threats could impact the water chemistry characteristics that support Riverside fairy shrimp (PCE 1) and disrupt the surrounding watershed that provides water to fill the pool in the winter and spring (PCE 2) as well as the vegetative coverage and soil substrates surrounding the pool (PCE 2). Please see the
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In
Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of “destruction or adverse modification” (50 CFR 402.02) (see
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (CWA) (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, or are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action;
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Thus, the analysis of effects to critical habitat under Section 7(a)(2) of the Act is a separate and distinct analysis from an analysis of the effects to the species. While the jeopardy analysis focuses on an action's effects on the survival and recovery of a species, the adverse modification analysis investigates the action's effects to the designated habitat's contribution to conservation. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for a species. The difference in outcomes of the jeopardy and adverse modification analyses represents the regulatory benefit of critical habitat designation.
As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species. For Riverside fairy shrimp, this includes supporting viable vernal pools containing the species and the associated watersheds upon which the pools depend.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for Riverside fairy shrimp. These activities include, but are not limited to:
(1) Actions that result in ground disturbance. Such activities could include, but are not limited to, residential or commercial development, OHV activity, pipeline construction, new road construction, existing road maintenance (including road widening and grading), manure dumping, and grazing. These activities potentially impact the habitat and physical or biological features essential to Riverside fairy shrimp by damaging, disturbing, and altering soil composition through direct impacts, increased erosion, and increased nutrient content. Additionally, changes in soil composition may lead to changes in the vegetation composition, thereby changing the overall habitat type.
(2) Actions that would impact the ability of an ephemeral wetland to continue to provide habitat for Riverside fairy shrimp and other native species that require this specialized habitat type. Such activities could include, but are not limited to, water impoundment, stream channelization, water diversion, water withdrawal, and development activities. These activities could alter the physical or biological features essential to the conservation of Riverside fairy shrimp by eliminating ponding habitat; changing the duration and frequency of the ponding events on which this species relies; making the habitat too wet, thus allowing obligate wetland species to become established;
(3) Actions that result in alteration of the hydrological regimes typically associated with Riverside fairy shrimp habitat, including actions that would impact the soil and topography that cause water to pond during the winter and spring months. Such activities could include, but are not limited to, deep-ripping of soils, trenching, soil compaction, and development activities. These activities could alter the biological and physical features essential to the conservation of Riverside fairy shrimp by eliminating ponding habitat, impacting the impervious nature of the soil layer, or making the soil so impervious that water pools for an extended period that is detrimental to Riverside fairy shrimp (see “Primary Constituent Elements for Riverside Fairy Shrimp” section above). These activities could alter surface layers and the hydrological regime in a manner that promotes loss of soil components, ponding regimes, or hydrological connectivity to upland habitats that support the growth and reproduction of Riverside fairy shrimp.
(4) Road construction and maintenance (including widening and grading), right-of-way designation, regulation of agricultural activities, or any activity funded or carried out by a Federal agency that could result in excavation or mechanized clearing of Riverside fairy shrimp critical habitat. These activities could alter the habitat in such a way that cysts of Riverside fairy shrimp are crushed, Riverside fairy shrimp are removed, or ephemeral wetland habitat is permanently altered.
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”
We consult with the military on the development and implementation of INRMPs for installations with listed species. We analyzed INRMPs developed by military installations that cover lands we determined meet the definition of critical habitat for Riverside fairy shrimp to determine if they are exempt from designation under section 4(a)(3) of the Act. The following Department of Defense installations include lands that meet the definition of critical habitat for Riverside fairy shrimp and have completed, Service-approved INRMPs.
In the previous final critical habitat designation for Riverside fairy shrimp, we exempted MCB Camp Pendleton from the designation (70 FR 19154, April 12, 2005). MCB Camp Pendleton completed their INRMP in November 2001, and updated it in March 2007 (U.S. Marine Corps 2007). The INRMP includes the following conservation measures for the Riverside fairy shrimp: (1) Surveys and monitoring, studies, impact avoidance and minimization, and habitat restoration and enhancement; (2) species survey information stored in MCB Camp Pendleton's GIS database and recorded in a resource atlas that is published and updated on a semi-annual basis; (3) application of a 984-ft (300-m) radius to protect the microwatershed buffers around current and historical Riverside fairy shrimp locations; and (4) use of a resource atlas to plan operations and projects to avoid impacts to Riverside fairy shrimp and to trigger section 7 consultations if an action may affect the species. These measures are established, ongoing aspects of existing programs or Base directives (for example, Range and Training Regulations), or measures that are being implemented as a result of previous consultations.
To avoid and minimize adverse effects to Riverside fairy shrimp, MCB Camp Pendleton implements Base directives, such as: (1) Bivouac (temporary camps for military training purposes), command post, and field support activities should be no closer than 984 ft (300 m) to occupied Riverside fairy shrimp habitat year round; (2) vehicle and equipment operations should be limited to existing road and trail networks year round; and (3) environmental clearance is required prior to any soil excavation, filling, or grading. MCB Camp Pendleton has also demonstrated ongoing funding of their INRMP and management of endangered and threatened species. MCB Camp Pendleton continues to expend significant resources for management of federally listed species and habitat on their land, including management actions that provide a benefit for Riverside fairy shrimp. Moreover, in partnership with the Service, MCB Camp Pendleton provides funding for Service biologists to assist in implementing their Sikes Act program and buffer land acquisition initiative.
Based on MCB Camp Pendleton's past funding history for listed species and their Sikes Act program (including the management of Riverside fairy shrimp), we conclude there is a high degree of certainty that MCB Camp Pendleton will continue to implement the INRMP in coordination with CDFG and the Service in a manner that provides a benefit to Riverside fairy shrimp. We also find there is a high degree of certainty that the conservation efforts of their INRMP will be effective. Service biologists work closely with MCB Camp Pendleton on a variety of endangered and threatened species issues, including the Riverside fairy shrimp. The management programs and Base directives to avoid and minimize impacts to the species are consistent with current and ongoing
In MCB Camp Pendleton, lands that contain the features essential to the conservation of Riverside fairy shrimp are within the following areas: San Onofre State Beach, State Park-leased land (near the Christianitos Creek foothills portion of Subunit 2h); Oscar One; Oscar Two; Victor area south of San Onofre State Park (Uniform Training Area); Red Beach; and Tango (U.S. Marine Corps 2007, Section 4, pp. 51-76).
State Park-leased lands are treated under the Real Estate Agreements and Lease section in the INRMP. Base real estate agreements (for example, leases, easements, outleases, assignments) cover approximately 5,000 ac (2,020 ha) of the Base (not inclusive of leased acreage within cantonment areas). These agreements include easements for public utilities and transit corridors, leases to public educational and retail agencies, State Beach leases, and agricultural leases for row crop production and seed collection.
In the portion of Subunit 2h within MCB Camp Pendleton boundaries, permissible activities include military thoroughfares (use of roads), military training (with advanced coordination), fire suppression activities, and public recreational access. Lessees are required to manage the natural resources on the lands leased for their use consistent with the philosophies and supportive of the objectives of the MCB Camp Pendleton INRMP. Each lessee that manages and/or controls use of lands leased from MCB Camp Pendleton (for example, State Parks or agriculture leases) is required to generate and submit a natural resources management plan for their leased lands for approval by the Base within 1 year of establishment of their lease or renewal. Lessees are also required to identify any activity that may affect federally regulated resources (for example, listed species, wetlands, waters of the United States) and provide information and mitigation that may be required to support consultation with the applicable regulatory agency.
Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that all identified lands on MCB Camp Pendleton that meet the definition of critical habitat are subject to the MCB Camp Pendleton INRMP, and that conservation efforts identified in the INRMP will provide a benefit to Riverside fairy shrimp and to vernal pool habitat on MCB Camp Pendleton. Therefore, 1,929 ac (781 ha) of land containing physical or biological features essential to the conservation of the species are exempt from the final critical habitat designation in accordance with section 4(a)(3) of the Act.
In the previous final critical habitat designation for Riverside fairy shrimp, we exempted MCAS Miramar from the designation of critical habitat (70 FR 19154, April 12, 2005). MCAS Miramar completed an INRMP in May 2000, which was updated in October 2006 and again in August 2011 (Gene Stout and Associates
Since the completion of MCAS Miramar's INRMP, the Service has received reports on their vernal pool monitoring and restoration program, and correspondence detailing the installation's expenditures on the objectives outlined in its INRMP. MCAS Miramar continues to monitor and manage its vernal pool resources. Ongoing programs include a study of the effects of fire management on vernal pool resources, vernal pool mapping, and species and vernal pool surveys. Based on the value MCAS Miramar's INRMP assigns to vernal pool basins and watersheds, and the management actions undertaken to conserve them, we find that the INRMP provides a benefit for the Riverside fairy shrimp.
Land that contains the features essential to the conservation of Riverside fairy shrimp is within the following area at MCAS Miramar: AA1 east complex, near the junction of Interstate 15 and Pomerado Road.
Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the MCAS Miramar INRMP, and that conservation efforts identified in the INRMP will provide a benefit to Riverside fairy shrimp occurring in habitats within or adjacent to MCAS Miramar. Therefore, 59 ac (24 ha) of land containing physical or biological features essential to the conservation of the species are exempt from the final critical habitat designation in accordance with section 4(a)(3) of the Act.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exercise his discretion to exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the
When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to further national security interests; result in conservation; result in the continuation, strengthening, or encouragement of partnerships; or result in implementation of a management plan that provides equal to or more conservation than a critical habitat designation would provide.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation. If we determine that the benefits of exclusion outweigh the benefits of inclusion and that exclusion will not result in extinction, we may, but are not required to, exercise Secretarial discretion to exclude the area from a designation of critical habitat.
Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we prepared a draft economic analysis (DEA) of the proposed critical habitat designation and related factors (Industrial Economics Inc. 2011, entire). The draft analysis, dated November 3, 2011, was made available for public review from March 1 through April 2, 2012 (77 FR 12543, March 1, 2012). Following the close of the comment period, a final analysis (dated August 30, 2012) of the potential economic effects of the designation was developed, taking into consideration the public comments and any new information (Industrial Economics Inc. 2012).
The intent of the final economic analysis (FEA) is to quantify the economic impacts of foreseeable conservation efforts for Riverside fairy shrimp; some of these costs will likely be incurred regardless of whether we designate critical habitat (baseline). The economic impact of the final critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (for example, under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat. The analysis looks retrospectively at baseline impacts incurred since the species was listed, and forecasts both baseline and incremental impacts likely to occur with the designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decisionmakers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the FEA looks retrospectively at costs that have been incurred since the species' listing in 1993 (58 FR 41384, August 3, 1993). The analysis only considers the current critical habitat designation and estimates the costs as if the previous critical habitat designation did not exist (Industrial Economics Inc. 2012, p. 2-2). The analysis considers those costs that may occur in the 24 years following the current designation of critical habitat. This was determined to be the appropriate period for analysis because 24 years is the amount of time for which regional planning information is available (Industrial Economics Inc. 2012, p. 2-23). The FEA quantifies economic impacts of Riverside fairy shrimp conservation efforts due to critical habitat designation associated with the following categories of activity: (1) Agricultural, commercial, and residential development; (2) transportation; and (3) livestock grazing and other activities (including roadway construction and maintenance, livestock grazing, water management activities, OHV use, heavy foot traffic, vegetation removal, nonnative plants, pesticides, and fire suppression and management).
The majority of incremental costs (90 percent) related to revised critical habitat result from time delays to development activities. The remaining 10 percent of incremental costs result from the additional administrative costs of considering adverse modification to proposed projects, and from conducting environmental assessments in compliance with the California Environmental Quality Act (CEQA) (Industrial Economics Inc. 2012, pp. ES-5—ES-6). The total future incremental impacts are estimated to be $1.75 million to $2.87 million ($166,000 to $273,000 annualized) in present value terms, using a 7 percent discount rate over the next 24 years (2012 to 2035) in areas that we proposed as revised critical habitat (Industrial Economics Inc. 2012, pp. ES-1—ES-2, ES-5). The majority of the costs are expected to occur in developable areas in Unit 2 (Orange County) and Unit 5 (San Diego County). Smaller impacts are expected in Unit 1 (Ventura County) and Unit 3 (Riverside County), and no impacts are forecast in Unit 4 (San Diego County), as no developable area exists in Unit 4 (Industrial Economics Inc. 2012, p. 4-17). Only minor impacts to transportation and habitat management are anticipated from this final critical habitat designation, and no economic impacts to livestock grazing, OHV activities, vegetation removal, water management activities, nonnative plants, or fire management are forecast (Industrial Economics Inc. 2012, pp. 5-1, 5-4).
Our economic analysis did not identify any disproportionate costs likely to result from the designation, and we are not excluding any lands from this designation of critical habitat for Riverside fairy shrimp based on economic impacts.
A copy of the FEA with supporting documents may be obtained by contacting the Carlsbad Fish and Wildlife Office (see
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense (DOD) or other agencies where a national security impact might exist. In preparing this final rule, we have
In our previous final revised critical habitat rule published April 12, 2005 (70 FR 19154) rule, we excluded from critical habitat lands adjacent to the U.S.-Mexico border under the jurisdiction of the U.S. Department of Homeland Security (DHS), U.S. Border Patrol, San Diego Sector. In that rule, we found that the portion of the lands owned by the DHS that are directly adjacent to the U.S.-Mexico border have previously been disturbed and developed by the ongoing construction of the Border Infrastructure System (BIS), and those lands within the constructed portion of the footprint of the BIS do not contain any of the primary constituent elements for the Riverside fairy shrimp. The U.S. Customs and Border Protection of the DHS is tasked with maintaining National Security interests along the nation's international borders. As such, lands on which DHS activities occur may qualify for exclusion under section 4(b)(2) of the Act. The BIS is considered integral to national security, and therefore, lands owned by DHS along the U.S.-Mexico border have been excluded from the designation under section 4(b)(2) of the Act for national security impacts (see Table 4 below).
On February 6, 2002, the Service completed a section 7 consultation with the U.S. Army Corps of Engineers (Corps) and the former Immigration and Naturalization Service on the effects of closing a gap in the Border Fence Project's secondary fence at Arnie's Point on three endangered species: Riverside fairy shrimp, San Diego fairy shrimp, and San Diego button-celery (
The designation of critical habitat can result in regulatory, educational, and ancillary benefits. As discussed under
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208 (8 U.S.C. 1101
Another possible benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about Riverside fairy shrimp and its habitat that reaches a wide audience, including parties engaged in conservation activities, is valuable. In the case of Riverside fairy shrimp, however, lands identified as essential to the conservation of the species were identified in the proposed critical habitat designation published in the
For the reasons stated above, we consider that no regulatory or ancillary benefits will result from critical habitat designation on lands owned by DHS. In addition, the Service previously thoroughly evaluated the impacts of the BIS on the Riverside fairy shrimp and its vernal pool habitat, and determined that the project will not jeopardize the continued existence of the species. As part of the BIS project, DHS has committed to restore, protect, and manage nearby Riverside fairy shrimp habitat as laid out in our biological opinions (Service 2002; Service 2003). We also conclude that the educational benefits of designating lands identified as critical habitat for Riverside fairy shrimp on lands owned by the DHS are negligible because the location of habitat for this species within San Diego County is already well known generally and to DHS. Therefore, these facts render negligible the benefits of inclusion of subunits 5b and 5h in the designation of critical habitat for Riverside fairy shrimp.
Although designating critical habitat on DHS lands in Subunits 5b and 5h may clearly reflect our determination that these lands are essential to the conservation of the Riverside fairy shrimp, there is no regulatory requirement for the DHS or any other Federal agency directly involved with the construction and maintenance of the BIS to consult with us regarding impacts to the species. Designation of critical habitat on those lands under these circumstances would be received negatively by Federal agencies directly involved with the timely operation and maintenance of this critical national security project to safeguard our international borders and viewed negatively as well as by the public at large.
In past years, DHS has undertaken additional conservation measures in Subunit 5b. These measures include: Installation of a chain link fence along the inside edge of an existing perimeter road to prevent vehicles from driving into the restoration area; preparation of a restoration plan for the three pools; and restoration and enhancement of 1 ac (<1 ha) of native grassland in the restoration area. Excluding DHS-owned lands from critical habitat will further our partnership with DHS and could encourage future restoration actions for listed species and their habitats.
We conclude that the minimal benefits of designating critical habitat on the DHS lands, including the vernal pool restoration area in Subunit 5b, are far outweighed by the substantial benefits to national security and our partnership with DHS. Therefore, the Secretary is exercising his discretion to exclude the DHS lands within Subunit 5b (29 ac (12 ha)) and a portion of Subunit 5h (11 ac (4 ha)) under section 4(b)(2) of the Act. No lands owned by the DHS are being designated as critical habitat.
The Service determined that exclusion of these lands will not result in extinction of the species. We have thoroughly analyzed the impacts associated with the BIS and conclude that Border Patrol activities associated with operation and maintenance of the BIS are not likely to jeopardize the continued existence of Riverside fairy shrimp. The DHS has also conserved and restored vernal pools at Arnie's Point since the construction of the border fence to support listed species such as Riverside fairy shrimp. Therefore, we conclude that the exclusion of lands in Subunits 5b and in a portion of 5h will not result in the extinction of the Riverside fairy shrimp.
Under section 4(b)(2) of the Act, we consider any other relevant impacts in addition to economic impacts and impacts on national security. We consider a number of factors, including whether landowners have developed any HCPs or other management plans for areas proposed as critical habitat, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities.
Based on species information and other information in our files, information provided by entities seeking exclusion, and public comments we received, we evaluated whether certain lands in the proposed critical habitat units 2, 4, and 5 that are covered by approved habitat conservation plans (HCPs) are appropriate for exclusion
Table 5, below, provides approximate areas (ac (ha)) of lands that meet the definition of critical habitat, but that we are excluding under section 4(b)(2) of the Act from the final revised critical habitat rule.
We are excluding these areas because we determine that they are appropriate for exclusion under the “other relevant factor” provisions of section 4(b)(2) of the Act.
As discussed above, in considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his discretion to exclude the area only if such exclusion would not result in the extinction of the species.
We find that the Orange County Central-Coastal Natural Community Conservation Plan/Habitat Conservation Plan (NCCP/HCP), the Orange County Southern Subregion HCP, the Western Riverside County MSHCP, City of Carlsbad Habitat Management Plan (HMP) under the San Diego Multiple Habitat Conservation Program (MHCP), and County of San Diego Subarea Plan under the MSCP provide protection and management for lands that meet the definition of critical habitat for Riverside fairy shrimp based on the weighing of those factors, and the Secretary is exercising his discretion to
We did not consider excluding non-Federal lands covered by the City of San Diego Subarea Plan under the MSCP. In a 2006 Federal district court ruling in
As discussed under
However, for some species, including Riverside fairy shrimp, the outcome of adverse modification analysis under section 7(a)(2) will be similar to the jeopardy analysis because effects to habitat will often also result in effects to the species. Though jeopardy and adverse modification analyses must satisfy two different standards, any modifications to proposed actions resulting from a section 7 consultation to minimize or avoid impacts to Riverside fairy shrimp are likely to be habitat based, as the Riverside fairy shrimp is completely dependent on a properly functioning hydrological regime. Avoidance or adequate minimization of impacts to the wetland area and its associated watershed, which collectively create the hydrological regime necessary to support Riverside fairy shrimp, is essential not only to enable the critical habitat unit to carry out its conservation function such that adverse modification is avoided, but also to avoid a possible jeopardy determination with regard to the continued existence of the listed species. All subunits excluded within the Orange County Central-Coastal NCCP/HCP, the Orange County Southern Subregion HCP, the Western Riverside County MSHCP, City of Carlsbad HMP under the San Diego MHCP, and County of San Diego Subarea Plan under the MSCP are occupied. Thus, it is difficult to differentiate meaningfully between measures that would be implemented solely to minimize impacts to critical habitat from those required under the plans to minimize impacts to Riverside fairy shrimp. Therefore, in the case of Riverside fairy shrimp, we believe any additional regulatory benefits of critical habitat designation within areas covered by approved habitat conservation plans would be minimal because the regulatory benefits from designation are difficult to distinguish at this point in time from the benefits of listing.
Detailed discussion of the regulatory, educational, and ancillary benefits of critical habitat designation is discussed under the
The Orange County Central-Coastal Natural Community Conservation Planning/Habitat Conservation Plan (NCCP/HCP) was developed in cooperation with numerous local jurisdictions, State agencies, and participating landowners, including the cities of Anaheim, Costa Mesa, Irvine, Orange, and San Juan Capistrano; Southern California Edison; Transportation Corridor Agencies; The Irvine Company; California Department of Parks and Recreation; Metropolitan Water District of Southern California; and the County of Orange. Approved in 1996, the Orange County Central-Coastal NCCP/HCP provides for the establishment of approximately 38,738 ac (15,677 ha) of reserve land for 39 Federal or State-listed and unlisted sensitive species within the 208,713-ac (84,463-ha) plan area in central and coastal Orange County. The Orange County Central-Coastal NCCP/HCP is a multispecies conservation plan that minimizes and mitigates expected habitat loss and associated incidental take of covered species within the plan area. The “Reserve System” created pursuant to the NCCP/HCP is designed to function effectively as a multiple-habitat and multiple-species reserve that specifically includes vernal pool habitat and Riverside fairy shrimp (R.J. Meade Consulting, Inc. 1996, entire).
The Orange County Central-Coastal NCCP/HCP provides for monitoring and adaptive management of covered species and their habitats within this Reserve System (Consultation #1-6- FW-24, Service 1996, pp. 1-4). Conditionally covered species, including the Riverside fairy shrimp, receive protection not only through the establishment and management of the Reserve System, but also additional mitigation measures specified in the NCCP/HCP and implementing agreement (IA) (Service
• Addresses design modifications and other onsite measures that are consistent with the project's purposes, minimizes impacts, and provides appropriate protections for vernal pool habitat;
• Provides for compensatory vernal pool habitat restoration/creation at an appropriate location (which may include the reserve or other open space) and includes relocation of potential cyst-bearing soils; and
• Provides for monitoring and adaptive management of vernal pools consistent with Chapter 5 of this NCCP” (R.J. Meade Consulting, Inc. 1996, p. 97).
Permittees implement the above conservation measures for Riverside fairy shrimp and other covered species over the 75-year permit term, as well as provide commitments in perpetuity regarding habitat protection for lands in the Reserve System and commitments outlined in the IA (R.J. Meade Consulting 1996, p. 12). Subunit 2i (SCE Viejo Conservation Bank; 63 ac (25 ha)) is part of the proposed SCE Viejo Conservation Bank and is targeted for conservation. Although Subunit 2c
The Secretary is exercising his discretion to exclude a total of 89 ac (36 ha) of land that is owned by or under the jurisdiction of the permittees of the Orange County Central-Coastal NCCP/HCP (see Table 5 above).
The designation of critical habitat can result in regulatory, educational, and ancillary benefits. As discussed under
However, for reasons stated in the
Another possible benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about Riverside fairy shrimp and its habitat that reaches a wide audience, including parties engaged in conservation activities, is valuable. In the case of Riverside fairy shrimp, however, there have already been multiple occasions when the public has been educated about the species. The Orange County Central-Coastal NCCP/HCP has been in place since 1996. Implementation of the plan is reviewed yearly through publicly available annual reports that extensively detail progress of the plan and status of nature reserves within the plan area. These reports provide extensive opportunity to educate the public and landowners about the location of, and efforts to conserve, areas that meet the definition of critical habitat for Riverside fairy shrimp. As discussed above, the permit holders of the Orange County Central-Coastal NCCP/HCP are aware of the value of these lands to the conservation of Riverside fairy shrimp, and conservation measures are already in place to protect essential occurrences of the Riverside fairy shrimp and its habitat.
Lands identified as critical habitat that are covered by the Orange County Central-Coastal NCCP/HCP were also included in the proposed critical habitat designation for Riverside fairy shrimp published in the
We consider the educational benefits of critical habitat designation (such as providing information to Orange County and other stakeholders and to the public regarding areas important to the long-term conservation of this species) have already been realized through development and ongoing implementation of the Orange County Central-Coastal NCCP/HCP, by proposing these areas as critical habitat, and through the Service's public outreach efforts. The educational benefits of designating critical habitat within the Orange County Central Coastal NCCP/HCP would be negligible.
Finally, critical habitat designation can result in ancillary conservation benefits to Riverside fairy shrimp by triggering additional review and conservation through other Federal and State laws. The primary State law that might be affected by critical habitat designation is CEQA. However, vernal pool habitat occupied by Riverside fairy shrimp within the central-coastal subregion of Orange County has been identified in surveys conducted since the completion of the Orange County Central Coastal NCCP/HCP and is targeted for protection under the plan and not authorized for take. Thus, reviews of development proposals affecting occupied vernal pool habitat within the plan area under CEQA already take into account the importance of this habitat to Riverside fairy shrimp and the protections required for the species and its habitat under the plan. The Federal law most likely to afford protection to designated Riverside fairy shrimp habitat is the CWA. Projects requiring a permit under the CWA, such as a fill permit under section 404 of the CWA, located within critical habitat or likely to affect critical habitat, would trigger section 7 consultation under the Act. However, as discussed above, we conclude the potential regulatory benefits resulting from designation of critical habitat would be negligible because, with regard to Riverside fairy shrimp, the outcome of an adverse modification analysis under section 7(a)(2) of the Act would not differ materially from the outcome of a jeopardy analysis. Therefore, we conclude the ancillary benefits of designating lands identified as critical habitat for Riverside fairy shrimp within the Orange County Central Coastal NCCP/HCP as critical habitat would be negligible.
For the reasons stated above, we consider section 7 consultations for critical habitat designation conducted under the standards required by the 9th Circuit Court in the
The benefits of excluding from designated critical habitat the approximately 89 ac (36 ha) of land within the Orange County Central-Coastal NCCP/HCP are significant. The benefits of excluding lands identified as critical habitat for Riverside fairy shrimp covered by the plan include: (1) Continuance and strengthening of our effective working relationships with the Central-Coastal NCCP/HCP jurisdictions and stakeholders to promote the conservation of Riverside fairy shrimp and its habitat; (2) allowance for continued meaningful collaboration and cooperation in working toward recovering this species, including conservation benefits that might not otherwise occur; (3) encouragement of other regional jurisdictions with completed NCCP or HCP plans to amend their plans to cover and benefit Riverside fairy shrimp and vernal pool habitat; (4) encouragement for local jurisdictions to fully participate in the Orange County Central-Coastal NCCP/HCP; and (5) encouragement of additional HCP and other conservation plan development in the future on other private lands that include Riverside fairy shrimp and other federally listed species.
We have developed close partnerships with the County of Orange and all other participating entities through the development of the Orange County Central-Coastal NCCP/HCP. The protections and management provided under the plan for Riverside fairy shrimp and its habitat, including the physical or biological features essential to the conservation of this species, are consistent with statutory mandate under section 7 of the Act to avoid destruction or adverse modification of critical habitat. Furthermore, this plan goes beyond the statutory mandate by protecting areas that contain the physical or biological features essential to the conservation of the species.
By excluding the approximately 89 ac (36 ha) of land within the boundaries of the Orange County Central-Coastal NCCP/HCP from critical habitat designation, we are eliminating a redundant layer of regulatory review for projects covered by the Orange County Central-Coastal NCCP/HCP, maintaining our partnership with Orange County and other plan stakeholders, and encouraging new voluntary partnerships with other landowners and jurisdictions to protect Riverside fairy shrimp and other listed species. As discussed above, the prospect of potentially avoiding a future designation of critical habitat provides a meaningful incentive to plan proponents to extend protections to endangered and threatened species and their habitats under a habitat conservation plan. Achieving comprehensive landscape-level protection for listed species, particularly rare vernal pool species, such as Riverside fairy shrimp, through their inclusion in regional conservation plans, provides a key conservation benefit for such species. Our ongoing partnership with the County of Orange and plan stakeholders, and the landscape-level multiple species conservation planning efforts they promote, are essential to achieve long-term conservation of Riverside fairy shrimp.
Some NCCP and HCP permittees have expressed the view that designation of lands covered by an NCCP/HCP devalues the conservation efforts of plan proponents and the partnerships fostered through the development and implementation of the plans and would discourage development of additional NCCP/HCPs and other conservation plans in the future (see the
Large-scale HCPs, such as the Orange County Central-Coastal NCCP/HCP, take many years to develop, and foster an ecosystem-based approach to habitat conservation planning by addressing conservation issues through a coordinated approach. If, instead, local jurisdictions were to require landowners to individually obtain incidental take permits (ITPs) under section 10 of the Act, the conservation likely to result would be uncoordinated, patchy, and less likely to achieve listed species recovery, as conservation measures would be determined on a project-by-project basis instead of on a comprehensive, landscape-level scale. To avoid that outcome, we are committed to fostering partnerships with local jurisdictions to encourage the development and continued implementation of regional HCPs that afford proactive landscape-level conservation for multiple species. We conclude that the exclusion from critical habitat designation of lands identified as critical habitat within the Orange County Central-Coastal NCCP/HCP will result in significant partnership benefits that are likely to result in important protection for the Riverside fairy shrimp and its habitat and also other listed species and their habitats.
We reviewed and evaluated the exclusion of approximately 89 ac (36 ha) of land within the boundaries of the Orange County Central-Coastal NCCP/HCP from our revised designation of critical habitat, and we determined the benefits of excluding these lands outweigh the benefits of including them. The benefits of including these lands in the designation are reduced because the regulatory, educational, and ancillary benefits that would result from critical habitat designation are almost entirely redundant with the regulatory, educational, and ancillary benefits already afforded through the Orange County Central-Coastal NCCP/HCP and under State and Federal law. In contrast to the reduced benefits of inclusion, the benefits of excluding lands covered by the Orange County Central-Coastal NCCP/HCP from critical habitat designation are significant. Exclusion of these lands will help preserve the partnerships we developed with local jurisdictions and project proponents through the development and ongoing implementation of the Orange County Central-Coastal NCCP/HCP, and aid in fostering future partnerships for the benefit of listed species. Our partnership with plan participants has already resulted in significant benefits to listed species and vernal pool habitat; based on this track record of success, we expect that this meaningful partnership will continue into the future.
The Orange County Central-Coastal NCCP/HCP will provide significant conservation and protection of the Riverside fairy shrimp and its habitat and help achieve recovery of this species through habitat enhancement and restoration, maintenance of functional connections to adjoining
We determine that the exclusion of 89 ac (36 ha) of land within the boundaries of the Orange County Central-Coastal NCCP/HCP from the designation of critical habitat for Riverside fairy shrimp will not result in extinction of the species. Proposed actions that affect waters of the United States as defined under the CWA, which in many cases include vernal pools occupied by Riverside fairy shrimp, will continue to be subject to consultation under section 7(a)(2) of the Act and to the duty to avoid jeopardy to the species. The protection provided by the Orange County Central-Coastal NCCP/HCP for the length of the permit also provides assurances that this species will not go extinct as a result of excluding these lands from the critical habitat designation.
Therefore, the Secretary is exercising his discretion to exclude 89 ac (36 ha) of land (the entirety of subunits 2c and 2i) within the boundaries of the Orange County Central-Coastal NCCP/HCP from this final critical habitat designation.
The Orange County Southern Subregion HCP is a large-scale HCP that encompasses approximately 86,021 ac (34,811 ha) in southern Orange County. It is a multispecies conservation program that minimizes and mitigates expected habitat loss and associated incidental take of 32 covered species, including Riverside fairy shrimp, incidental to residential development and related actions in southern Orange County. The Orange County Southern Subregion HCP was developed and is being implemented by the County of Orange; Rancho Mission Viejo, LLC (RMV); and the Santa Margarita Water District. The Service issued incidental take permits based on the plan on January 10, 2007. The permit and plan cover a 75-year period.
The Orange County Southern Subregion HCP provides for the conservation of covered species, including Riverside fairy shrimp, through the establishment of an approximately 30,426-ac (12,313-ha) habitat reserve and 4,456 ac (1,803 ha) of supplemental open space areas (Service 2007, p. 19), which primarily consist of land owned by Rancho Mission Viejo and three pre-existing County parks (Service 2007, pp. 10, 19).
The Orange County Southern Subregion HCP is expected to provide benefits for the conservation of Riverside fairy shrimp through implementation of the following conservation measures:
• Conserving vernal pools within the habitat reserve,
• Minimizing impacts to vernal pools from development,
• Maintaining water quality and quantity,
• Controlling nonnative, invasive species,
• Managing livestock grazing, and
• Minimizing human access and disturbance.
The conservation strategy for this HCP provides a comprehensive habitat-based approach to the protection of covered species and their habitats by focusing on the lands and aquatic resource areas containing the physical or biological features essential for the long-term conservation of the covered species (including Riverside fairy shrimp), and by providing for appropriate management for those lands (Service 2007, p. 64). All of the portions of Unit 2 that fall within the Orange County Southern Subregion HCP have been conserved or are targeted for conservation within the plan's open space area, known as its habitat reserve. Portions of Subunits 2dB and 2e are within O'Neill Regional Park, a park permanently conserved as open space that is part of the habitat reserve system (Dudek and Associates 2006, p. 10-6). The remaining portions of Subunits 2dB and 2e are outside the plan boundaries and have not been excluded from this final revised critical habitat rule. Chiquita Ridge (Subunit 2f) and Saddleback Meadow (Subunit 2dA) are also within the habitat reserve. Lands within these subunits are conserved with conservation easements, and permittees fund the management of these areas to benefit vernal pool species, including Riverside fairy shrimp (Service 2007, pp. 15-17). Management provided by the plan includes regular monitoring of vernal pools at Chiquita Ridge (Subunit 2f) (Service 2007, p. 134). Radio Tower Road (Subunit 2g) is required to be conserved within the habitat reserve in future years in accordance with the schedule set forth in the plan. In the interim, the Orange County Southern Subregion HCP mandates that all construction must take place at a minimum of 1,000 ft (305 m) from the Radio Tower Road vernal pools (Subunit 2g) (Service 2007, p. 135). Monitoring and management for Subunit 2g will occur once the property is added to the reserve (Service 2007, p. 134).
The Secretary is exercising his discretion to exclude a total of 233 ac (94 ha) of covered lands under the Orange County Southern Subregion HCP (see Table 5 above).
The designation of critical habitat can result in regulatory, educational, and ancillary benefits. As discussed under
However, for reasons stated in the
As discussed under
Lands meeting the definition of critical habitat that are covered by the Orange County Southern Subregion HCP were also included in the proposed designation published in the
Finally, critical habitat designation can result in ancillary conservation benefits to Riverside fairy shrimp by triggering additional review and conservation through other Federal and State laws. The primary State law that might be affected by critical habitat designation is CEQA. However, Riverside fairy shrimp lands that meet the definition of critical habitat within the Southern Subregion of Orange County have been identified and are either already protected or targeted for protection under the plan. Thus, review of development proposals affecting lands identified as critical habitat covered by the plan under CEQA by the entities participating in the Orange County Southern Subregion HCP already takes into account the importance of this habitat to the species and the protections required for the species and its habitat under the plan. The Federal law most likely to afford protection to designated Riverside fairy shrimp habitat is the CWA. Projects requiring a permit under the CWA, such as a fill permit under section 404 of the CWA, located within critical habitat or likely to affect critical habitat, would trigger section 7 consultation under the Act. However, as discussed above, we conclude the potential regulatory benefits resulting from designation of critical habitat would be negligible because, with regard to Riverside fairy shrimp, the outcome of an adverse modification analysis under section 7(a)(2) of the Act would not differ materially from the outcome of a jeopardy analysis. Therefore, we conclude that the ancillary benefits of designating lands identified as critical habitat for Riverside fairy shrimp within the Orange County Southern Subregion HCP as critical habitat would be negligible.
For the reasons stated above and under
The benefits of excluding from designated critical habitat the approximately 233 ac (94 ha) of land within the Orange County Southern Subregion HCP are significant. The discussion of partnership benefits under
We have developed close partnerships with participating entities through the development of the Orange County Southern Subregion HCP. The protections and management provided for the Riverside fairy shrimp and its habitat, including the physical or biological features essential to the conservation of the species, are consistent with statutory mandates under section 7 of the Act to avoid destruction or adverse modification of critical habitat. Furthermore, this plan goes beyond the statutory mandate including active management and protection of areas that contain the physical or biological features essential to the conservation of the species. By excluding the approximately 233 ac (94 ha) of land within the boundaries of the Orange County Southern Subregion HCP from critical habitat designation, we are eliminating a redundant layer of regulatory review for projects covered by the Orange County Southern Subregion HCP, maintaining our partnership with Orange County and other plan permittees, and encouraging new voluntary partnerships with other
As noted above, some HCP permittees have expressed the view that critical habitat designation of lands covered by an HCP devalues the conservation efforts of plan proponents and the partnerships fostered through the development and implementation of the plan, and would discourage development of additional HCPs and other conservation plans in the future. Landowners in the Orange County Southern Subregion HCP have repeatedly expressed their belief that lands covered by the plan should be excluded from critical habitat (RMV 2012, pp. 1, 8). Where an existing HCP provides protection for a species and its essential habitat within the plan area, such as is the case with the Orange County Southern Subregion HCP, the benefits of preserving existing partnerships by excluding the covered lands from critical habitat are most significant. Under these circumstances, excluding lands owned by or under the jurisdiction of the permittees of an HCP promotes positive working relationships and eliminates impacts to existing and future partnerships while encouraging development of additional HCPs for other species.
Large-scale HCPs, such as the Orange County Southern Subregion HCP, take many years to develop, and foster an ecosystem-based approach to habitat conservation planning by comprehensively addressing conservation issues. If local jurisdictions were to require landowners to individually obtain ITPs under section 10 of the Act, the conservation likely to result would be uncoordinated, patchy, and less likely to achieve listed species recovery, as conservation measures would be determined on a project-by-project basis instead of on a comprehensive, landscape-level scale. To avoid that outcome, we are committed to fostering partnerships with local jurisdictions and large landowners to encourage the development and continued implementation of regional HCPs that afford proactive landscape-level conservation for multiple species. We conclude that the exclusion from critical habitat designation of lands that contain the physical and biological factors essential to the conservation of the species within the Orange County Southern Subregion HCP will result in significant partnership benefits that we believe will result in important protection for Riverside fairy shrimp and its habitat and other listed species and their habitats.
We reviewed and evaluated the exclusion of approximately 233 ac (94 ha) of land within the boundaries of the Orange County Southern Subregion HCP from our revised designation of critical habitat, and we determined the benefits of excluding these lands outweigh the benefits of including them. The benefits of including these lands in the designation are reduced because the regulatory, educational, and ancillary benefits that would result from critical habitat designation are almost entirely redundant with the regulatory, educational, and ancillary benefits already afforded through the Orange County Southern Subregion HCP and under State and Federal law. In contrast to the reduced benefits of inclusion, the benefits of excluding lands covered by the Orange County Southern Subregion HCP from critical habitat designation are significant. Exclusion of these lands will help preserve the partnerships we developed with local jurisdictions and project proponents through the development and ongoing implementation of the Orange County Southern Subregion HCP, and will aid in fostering future partnerships for the benefit of listed species. Our partnership with plan participants has already resulted in significant benefits to listed species and vernal pool habitat; based on this track record of success, we expect that this meaningful partnership will continue into the future.
The Orange County Southern Subregion HCP will provide significant conservation and management of the Riverside fairy shrimp and its habitat, and help achieve recovery of this species through habitat enhancement and restoration, functional connections to adjoining habitat, and species monitoring efforts. Additional HCPs or other species-habitat plans potentially fostered by this exclusion would also help to recover this and other federally listed species. Therefore, in consideration of the relevant impact to current and future partnerships, as summarized in the
We determined that the exclusion of 233 ac (94 ha) of land within the boundaries of the Orange County Southern Subregion HCP from the designation of critical habitat for the Riverside fairy shrimp will not result in extinction of the species. Proposed actions that affect waters of the United States as defined under the CWA, including in many cases vernal pools occupied by Riverside fairy shrimp, will continue to be subject consultation under section 7(a)(2) of the Act and to the duty to avoid jeopardy to the species. The protection provided by the Orange County Southern Subregion HCP also provides assurances that this species will not go extinct as a result of excluding these lands from the critical habitat designation. Therefore, the Secretary is exercising his discretion to exclude 233 ac (94 ha) of land within the boundaries of the Orange County Southern Subregion HCP from this final critical habitat designation.
The Western Riverside County MSHCP is a regional, multijurisdictional HCP that encompasses approximately 1.26 million ac (510,000 ha) of land in western Riverside County. The Western Riverside County MSHCP addresses 146 listed and unlisted “covered species,” including the Riverside fairy shrimp. The Western Riverside County MSHCP is a multispecies conservation program designed to minimize and mitigate the expected loss of habitat and associated incidental take of covered species resulting from covered development activities such as indirect effects from flood control, road maintenance, housing construction, and construction of public facilities in the plan area. On June 22, 2004, the Service issued a single incidental take permit under section 10(a)(1)(B) of the Act to 22 permittees under the Western Riverside County MSHCP to be in effect for a period of 75 years (Service 2004a).
The Western Riverside County MSHCP, when fully implemented, will establish approximately 153,000 ac (61,917 ha) of new conservation lands (additional reserve lands (ARL)) to complement the approximate 347,000 ac (140,426 ha) of preexisting natural and open space areas (public/quasi-public (PQP) lands) in the plan area. PQP lands include those under ownership of public agencies, primarily the U.S. Forest Service (USFS) and Bureau of Land Management (BLM), as well as permittee-owned or controlled open-space areas managed by the State of California and Riverside County. Collectively, the ARL and PQP lands form the overall Western Riverside County MSHCP Conservation Area. The configuration of the 153,000 ac (61,916 ha) of ARL is not mapped or precisely delineated (hard-lined) in the Western Riverside County MSHCP. Instead, the configuration and composition of the ARL are described in text within the bounds of the approximately 310,000-ac (125,453-ha) criteria area. Additional reserve lands are being acquired and conserved as part of the ongoing implementation of the Western Riverside County MSHCP.
Skunk Hollow and Field Pool (Barry Jones Wetland Mitigation Bank, Subunit 3f), Lake Elsinore Back Basin (Australia Pool; Subunit 3c), and Murrieta (Schleuniger Pool, Subunit 3e) are conserved or will be conserved in the Western Riverside County MSHCP Conservation Area. The plan protects Riverside fairy shrimp within the plan area by ensuring the species is conserved within 90 percent of an occupied area (County of Riverside 2003, Table 9-2). All vernal pool habitat within the Western Riverside County MSHCP Conservation Area will be conserved. For vernal pool habitat outside the Conservation Area, vernal pool habitat is assessed on a project by project basis and an avoidance alternative implemented, if feasible. If an avoidance alternative is not feasible, a practicable alternative that minimizes direct and indirect effects to riparian/riverine areas, vernal pools/fairy shrimp habitat, and associated functions will be selected and unavoidable impacts will be mitigated. To ensure adequate replacement of lost functions and values, the permittee is required to make a determination of biologically equivalent or superior preservation, as described in the Plan (pp. 6-24 and 6-25), that evaluates the effects to habitats and effects on species (Dudek and Associates 2003, pp. 6-20, 6-21, 6-23). This analysis must demonstrate that a proposed action, including design features to minimize impacts and compensation measures (for example, restoration, enhancement), will provide equal or better conservation than avoidance of the riparian, riverine, vernal pools, or fairy shrimp habitats (Dudek and Associates 2003, pp. 6-23-6-25). All projects impacting vernal pool habitat must be reviewed by project permittees and the Service (Dudek and Associates 2003, p. 6-84).
Subunit 3g (Johnson Ranch Created Pool) is on existing conserved lands and is managed by CDFG (Service 2001, p. 2). Portions of Subunits 3e (Schleuniger Pool) and 3h (Santa Rosa Plateau—Mesa de Colorado) have been conserved. Subunits 3c (Australia Pool), 3d (Scott Road Pool), 3f (Skunk Hollow and Field Pool (Barry Jones Wetland Mitigation Bank)), and the remaining portions of Subunits 3e and 3h are on PQP lands.
Species-specific conservation objectives are included in the Western Riverside County MSHCP for the Riverside fairy shrimp. One objective is to conserve at least 11,942 ac (4,833 ha) of occupied or suitable habitat for the species. In addition, other areas within the criteria area identified as important for Riverside fairy shrimp will be conserved, including areas in Murrieta (Schleuniger Pool, Subunit 3e), Skunk Hollow (Subunit 3f), and Santa Rosa Plateau (Subunit 3h). This objective is intended to be met through implementation of the Protection of Species Associated with Riparian/Riverine Areas and Vernal Pools policy under the plan, which states that 90 percent of the area of occupied properties that provide long-term conservation value for Riverside fairy shrimp shall be conserved.
We anticipate that this species will persist in the remaining 90 percent of occupied habitat with long-term conservation value for the species, including all of the modeled habitat within both the existing public/quasi-public lands and the additional reserve lands. All critical habitat units within the boundaries of the Western Riverside MSHCP are conserved or on PQP lands. The MSHCP will further offset the proposed impacts to this species through management and monitoring actions within the reserve, including the enhancement of historic or vestigial vernal pools within Conservation Areas. This enhancement will help offset the impacts of activities covered by the plan by increasing the quality of the habitat that is conserved for this species and by allowing the expansion of populations within the reserve through the enhancement of historic or vestigial vernal pools that do not currently provide habitat for the species (Service 2004a, pp. 239-245).
The 1993 final listing rule for the Riverside fairy shrimp attributed the primary threat to this species to present or threatened destruction, modification, or curtailment of its habitat or to urban and agricultural development, OHV use, cattle trampling, human trampling, road development, and water management activities (58 FR 41387, August 3, 1993). The 1993 final listing rule also identified other natural and manmade factors, including introduction of nonnative plant species, competition with invading species, trash dumping, fire, and fire suppression activities (58 FR 41389, August 3, 1993) as primary threats to the Riverside fairy shrimp. The Western Riverside County MSHCP helps to address these threats through a regional planning effort, and contains species-specific objectives and criteria to provide for the conservation of the Riverside fairy shrimp and its habitat as the plan is implemented.
The designation of critical habitat can result in regulatory, educational, and ancillary benefits. As discussed under
However, for reasons stated in the
As discussed under
We consider the educational benefits of critical habitat designation for Riverside fairy shrimp (such as providing information to the County of Riverside, other stakeholders, and the public regarding areas important to the long-term conservation of this species) have already been realized through the development and ongoing implementation of the Western Riverside County MSHCP, by proposing these areas as critical habitat, and through the Service's public outreach efforts. For these reasons, we conclude that the educational benefits of designating critical habitat within the Western Riverside County MSHCP would be negligible.
Finally, critical habitat designation can result in ancillary conservation benefits to Riverside fairy shrimp by triggering additional review and conservation through other Federal and State laws. The primary State law that might be affected by critical habitat designation is CEQA. However, lands identified as critical habitat within Western Riverside County have been identified in the Western Riverside County MSHCP and are either already protected or targeted for protection under the plan. Thus, review of any future development proposals affecting lands identified as critical habitat within the plan area under CEQA already take into account the importance of this habitat to the species and the protections required for the species and its habitat under the plan. The Federal law most likely to afford protection to designated Riverside fairy shrimp habitat is the CWA. Projects requiring a permit under the CWA, such as a fill permit under section 404 of the CWA, located within critical habitat or likely to affect critical habitat, would trigger section 7 consultation under the Act. However, as discussed above, we conclude the potential regulatory benefits resulting from designation of critical habitat would be negligible because, with regard to the Riverside fairy shrimp, the outcome of an adverse modification analysis under section 7(a)(2) of the Act would not differ materially from the outcome of a jeopardy analysis. Therefore, we conclude the ancillary benefits of designating lands identified as critical habitat for the Riverside fairy shrimp within the Western Riverside County MSHCP as critical habitat would be negligible.
For the reasons stated above, we consider section 7 consultations for critical habitat designation conducted under the standards required by the 9th Circuit Court in the
The benefits of excluding from designated critical habitat the approximately 865 ac (350 ha) of land within the Western Riverside County MSHCP are significant. The benefits of excluding lands identified as critical habitat covered by these plans include: (1) Continuance and strengthening of our effective working relationships with all MSHCP jurisdictions and stakeholders to promote the conservation of the Riverside fairy shrimp and its habitat; (2) allowance for continued meaningful collaboration and cooperation in working toward recovering this species, including conservation benefits that might not otherwise occur; (3) encouragement of other jurisdictions with completed HCP/NCCP plans to amend their plans to cover and benefit the Riverside fairy shrimp and vernal pool habitat; and (4) encouragement of additional HCP and other conservation plan development in the future on other private lands that include Riverside fairy shrimp and other federally listed species.
We have developed close partnerships with the County of Riverside and several other stakeholders through the development of the Western Riverside County MSHCP. The protection and management provided for the Riverside fairy shrimp and its habitat, including the physical or biological features essential to the conservation of the species, are consistent with statutory mandates under section 7 of the Act to avoid destruction or adverse modification of critical habitat. Furthermore, this plan goes beyond the statutory mandate by actively protecting habitat areas that contain the physical or biological features essential to the conservation of the species. By excluding the approximately 865 ac (350 ha) of land within the boundaries of the Western Riverside County MSHCP from critical habitat designation, we are eliminating a redundant layer of regulatory review for projects covered by the Western Riverside County MSHCP, maintaining our partnership with Riverside County and other participating jurisdictions,
As noted earlier, some HCP permittees have expressed the view that critical habitat designation of lands covered by an HCP devalues the conservation efforts of plan proponents and the partnerships fostered through the development and implementation of the plans, and would discourage development of additional HCPs and other conservation plans in the future. Permittees of the Western Riverside County MSHCP have repeatedly stated that exclusion of lands covered by the plan would prove beneficial to our partnership (WRCRCA 2012, p. 5). In a comment letter on the proposed critical habitat, a representative from the Western Riverside Regional Conservation Authority stated that lands covered by the Western Riverside County MSHCP should be excluded from critical habitat. We consider that where an existing HCP provides protection for a species and its habitat within the plan area, the benefits of preserving existing partnerships by excluding the covered lands from critical habitat are most significant. Under these circumstances, excluding lands owned by or under the jurisdiction of the permittees of an HCP promotes positive working relationships and eliminates impacts to existing and future partnerships while encouraging development of additional HCPs for other species.
Large-scale HCPs, such as the Western Riverside County MSHCP, take many years to develop, and foster a strategic ecosystem-based approach to habitat conservation planning by addressing conservation issues through a coordinated approach. If, instead, local jurisdictions were to require landowners to individually obtain ITPs under section 10 of the Act, the conservation likely to result would be uncoordinated, patchy, and less likely to achieve listed species recovery as conservation measures would be determined on a project-by-project basis instead of on a comprehensive, landscape-level scale. To avoid that outcome, we are committed to fostering partnerships with local jurisdictions to encourage the development of regional HCPs that afford proactive landscape-level conservation for multiple species. We conclude that the exclusion from critical habitat designation of lands meeting the definition of critical habitat within the Western Riverside County MSHCP will result in significant partnership benefits that we believe will result in important protection for and conservation of the Riverside fairy shrimp and other listed species and their habitats.
We reviewed and evaluated the exclusion of approximately 865 ac (350 ha) of land within the boundaries of the Western Riverside County MSHCP from our revised designation of critical habitat, and we determined the benefits of excluding these lands outweigh the benefits of including them. The benefits of including these lands in the designation are reduced because the regulatory, educational, and ancillary benefits that would result from critical habitat designation are almost entirely redundant with the regulatory, educational, and ancillary benefits already afforded through the Western Riverside County MSHCP and under State and Federal law. In contrast to the reduced benefits of inclusion, the benefits of excluding lands covered by the Western Riverside County MSHCP from critical habitat designation are significant. Exclusion of these lands will help preserve the partnerships we developed with local jurisdictions and project proponents through the development and ongoing implementation of the Western Riverside County MSHCP, and aid in fostering future partnerships for the benefit of listed species. Our partnership with plan participants has already resulted in significant benefits to listed species and vernal pool habitat; based on this track record of success, we expect that this meaningful partnership will continue into the future.
The Western Riverside County MSHCP will provide significant conservation and management of the Riverside fairy shrimp and its habitat and help achieve recovery of this species through habitat enhancement and restoration, functional connections to adjoining habitat, and species monitoring efforts. Additional HCPs or other species-habitat plans potentially fostered by this exclusion would also help to recover this and other federally listed species. Therefore, in consideration of the relevant impact to current and future partnerships, as summarized in the
We determine that the exclusion of 865 ac (350 ha) of land within the boundaries of the Western Riverside County MSHCP from the designation of critical habitat for the Riverside fairy shrimp will not result in extinction of the species. Proposed actions that affect waters of the United States as defined under the CWA, which in many cases include vernal pools occupied by Riverside fairy shrimp, will continue to be subject to consultation under section 7(a)(2) of the Act and to the duty to avoid jeopardy to the species. The protection provided by the Western Riverside County MSHCP also provides assurances that this species will not go extinct as a result of excluding these lands from the critical habitat designation.
Therefore, the Secretary is exercising his discretion to exclude 865 ac (350 ha) of land (all of Unit 3) within the boundaries of the Western Riverside County MSHCP from this final critical habitat designation.
The San Diego Multiple Habitat Conservation Program (MHCP) is a comprehensive, multijurisdictional planning program designed to create, manage, and monitor an ecosystem preserve in northwestern San Diego County while providing for economic and urban development by streamlining the permitting process. The MHCP is also a subregional plan under the State of California's NCCP program, which was developed in cooperation with CDFG. The MHCP preserve system (focused planning area (FPA)) is intended to protect viable populations of native plant and animal species and their habitats in perpetuity, while accommodating continued economic
The MHCP includes an approximately 112,000-ac (45,324-ha) study area within the cities of Carlsbad, Encinitas, Escondido, San Marcos, Oceanside, Vista, and Solana Beach (MHCP 2003, entire). These cities will implement their respective portions of the MHCP through subarea plans. Only the City of Carlsbad has an approved subarea plan at this time, which is called the Carlsbad Habitat Management Plan (Carlsbad HMP). The section 10(a)(1)(B) incidental take permit and IA for the Carlsbad HMP were issued on November 12, 2004 (Service 2004b). Conservation requirements within the Carlsbad HMP for Riverside fairy shrimp include conserving 100 percent of the known Riverside fairy shrimp habitat and implementing the MHCP's narrow endemic and no net loss of wetlands (including vernal pools) policies for any additional vernal pools discovered in the MHCP planning area. These policies require all vernal pools and their watersheds within the MHCP study area to be 100 percent conserved, regardless of occupancy by Riverside fairy shrimp and regardless of location inside or outside of the FPA, unless doing so would remove all economic uses of a property. In the event that no feasible project alternative avoids all impacts on a particular property, the impacts must be minimized and mitigated to achieve no net loss of biological functions and values (Service 2004c, p. 330). Unit 4c covers the Poinsettia Lane Commuter Train Station vernal pool complex within the Carlsbad HMP, and consists of 9 ac (4 ha): 3 ac (1 ha) of private property and 6 ac (3 ha) local land owned by the North County Transit District.
The Poinsettia Lane Commuter Train Station vernal pool complex supports the only known occurrence of the Riverside fairy shrimp within the boundaries of the Carlsbad HMP. Coverage of the Riverside fairy shrimp under the Carlsbad HMP is conditioned on permanent protection, management, and monitoring of the Poinsettia Lane Commuter Train Station vernal pool complex as outlined in the biological opinion for the Carlsbad HMP (Service 2004c, pp. 327-33). We continue to work with the City of Carlsbad to conserve this area.
The designation of critical habitat can result in regulatory, educational, and ancillary benefits. As discussed under
However, as discussed above and for reasons stated in the
Another possible benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the Riverside fairy shrimp and its habitat that reaches a wide audience, including parties engaged in conservation activities, is valuable. In the case of Riverside fairy shrimp, however, there have already been multiple occasions when the public has been educated about the species. The framework of the regional San Diego MHCP was developed over a 6-year period and both the San Diego MHCP and the Carlsbad HMP have been in place for almost a decade. Implementation of the subarea plan is formally reviewed yearly through publicly available annual reports and a public meeting, again providing extensive opportunity to educate the public and landowners about the location of, and efforts to conserve, lands identified as critical habitat for the Riverside fairy shrimp. As discussed above, the permit holders of the Carlsbad HMP are aware of the value of these lands to the conservation of Riverside fairy shrimp. Lands identified as critical habitat for Riverside fairy shrimp that are covered by the Carlsbad HMP were included in the proposed designation published in the
We consider the educational benefits of critical habitat designation (such as providing information to the City of Carlsbad and other stakeholders and to the public regarding areas important to the long-term conservation of this species) have already been realized through development and ongoing implementation of the Carlsbad HMP, by proposing these areas as critical habitat, and through the Service's public outreach efforts. For these reasons, we conclude that the educational benefits of designating critical habitat within the Carlsbad HMP would be negligible.
Finally, critical habitat designation can also result in ancillary conservation benefits to Riverside fairy shrimp by triggering additional review and conservation through other Federal and State laws. The primary State law that might be affected by critical habitat designation is CEQA. However, lands identified as critical habitat within the City of Carlsbad have been identified in the HMP and are either already protected or targeted for protection under the plan. Thus, review of development proposals affecting habitat that contains the physical or biological features essential to the conservation of the species under CEQA by the City of Carlsbad already takes into account the importance of this habitat to the species and the protections required for the species and its habitat under the plan. The Federal law most likely to afford protection to designated Riverside fairy shrimp habitat is the CWA. Projects requiring a permit under the CWA, such as a fill permit under section 404 of the CWA, located within critical habitat or likely to affect critical habitat, would trigger section 7 consultation under the Act. However, as discussed above, we conclude the potential regulatory benefits resulting from designation of critical habitat would be negligible because, with regard to Riverside fairy shrimp, the outcome of an adverse modification analysis under section 7(a)(2) of the Act would not differ materially from the outcome of a
For the reasons stated above, we consider section 7 consultations for critical habitat designation conducted under the standards required by the 9th Circuit Court in the
The benefits of excluding from designated critical habitat the approximately 9 ac (4 ha) of land within the Carlsbad HMP are significant. The benefits of excluding lands identified as critical habitat covered by this plan include: (1) Continuance and strengthening of our effective working relationships with the City of Carlsbad and other plan stakeholders to promote the conservation of the Riverside fairy shrimp and its habitat; (2) allowance for continued meaningful collaboration and cooperation in working toward recovering this species, including conservation benefits that might not otherwise occur; (3) encouragement of other jurisdictions to complete subarea plans under the MHCP (including the cities of Oceanside, San Marcos, and Escondido) that cover or are adjacent to Riverside fairy shrimp or other vernal pool habitat; and (4) encouragement of additional NCCP/HCP and other conservation plan development in the future on private lands within the region that includes Riverside fairy shrimp and other federally listed species.
We have developed close partnerships with the City of Carlsbad and several other stakeholders through the development of the Carlsbad HMP. The protections and management provided for Riverside fairy shrimp and its habitat under the plan are consistent with statutory mandates under section 7 of the Act to avoid destruction or adverse modification of critical habitat. By excluding the approximately 9 ac (4 ha) of land within the boundaries of the Carlsbad HMP from critical habitat designation, we are eliminating a redundant layer of regulatory review for projects covered by the Carlsbad HMP, maintaining our partnership with the City of Carlsbad, and encouraging new voluntary partnerships with other landowners and jurisdictions to protect the Riverside fairy shrimp and other listed species. As discussed above, the prospect of potentially avoiding a future designation of critical habitat provides a meaningful incentive to plan proponents to extend protections to endangered and threatened species and their habitats under a habitat conservation plan. Achieving comprehensive landscape-level protection for listed species, particularly rare vernal pool species such as the Riverside fairy shrimp through their inclusion in regional conservation plans, provides a key conservation benefit for such species. Our ongoing partnerships with the City of Carlsbad and other regional MHCP participants, and the landscape-level multiple species conservation planning efforts they promote, are essential to achieve long-term conservation of Riverside fairy shrimp.
As noted in the
Large-scale HCPs, such as the regional MHCP and subarea plans in development under its framework, take many years to develop and foster an ecosystem-based approach to habitat conservation planning by addressing conservation issues through a coordinated approach. If, instead, local jurisdictions were to require landowners to individually obtain ITPs under section 10 of the Act, the conservation likely to result would be uncoordinated, patchy, and less likely to achieve listed species recovery as conservation measures would be determined on a project-by-project basis instead of on a comprehensive, landscape-level scale. To avoid that outcome, we are committed to fostering partnerships with local jurisdictions to encourage the development of regional HCPs that afford proactive landscape-level conservation for multiple species. We find that the exclusion from critical habitat designation of lands identified as critical habitat for the Riverside fairy shrimp within the Carlsbad HMP will result in significant partnership benefits that we believe will result in greater protection for the Riverside fairy shrimp and its habitat and other listed species and their habitats.
We reviewed and evaluated the exclusion of approximately 9 ac (4 ha) of land within the boundaries of the Carlsbad HMP from our revised designation of critical habitat, and we determined the benefits of excluding these lands outweigh the benefits of including them. The benefits of including these lands in the designation are reduced because the regulatory, educational, and ancillary benefits that would result from critical habitat designation are almost entirely redundant with the regulatory, educational, and ancillary benefits already afforded through the Carlsbad HMP and under State and Federal law. In contrast to the reduced benefits of inclusion, the benefits of excluding lands covered by the Carlsbad HMP from critical habitat designation are significant. Exclusion of these lands will help preserve the partnerships we developed with local jurisdictions and project proponents through the development and ongoing implementation of the Carlsbad HMP, and aid in fostering future partnerships for the benefit of listed species. Our partnership with the City of Carlsbad
The Carlsbad HMP will provide significant conservation and management of the Riverside fairy shrimp and its habitat and help achieve recovery of this species through habitat enhancement and restoration, functional connections to adjoining habitat, and species monitoring efforts. Additional HCPs or other species-habitat plans potentially fostered by this exclusion would also help to recover this and other federally listed species. Therefore, in consideration of the relevant impact to current and future partnerships, as summarized in the
We determine that the exclusion of 9 ac (4 ha) of land within the boundaries of the Carlsbad HMP from the designation of critical habitat for Riverside fairy shrimp will not result in extinction of the species. Proposed actions that affect waters of the United States as defined under the CWA, which in many cases include vernal pools occupied by Riverside fairy shrimp, will continue to be subject consultation under section 7(a)(2) of the Act and to the duty to avoid jeopardy to the species. The protection provided by the Carlsbad HMP also provides assurances that this species will not go extinct as a result of excluding lands from critical habitat within the plan area.
Therefore, the Secretary is exercising his discretion to exclude 9 ac (4 ha) of land (Subunit 4c) within the boundaries of the Carlsbad HMP from this final critical habitat designation.
The Riverside fairy shrimp is covered under the County of San Diego Subarea Plan. The Multiple Species Conservation Program (MSCP) is a comprehensive habitat conservation planning program that encompasses 582,243 ac (235,626 ha) within 12 jurisdictions in southwestern San Diego County. The MSCP is a subregional plan that identifies the conservation needs of 85 federally listed and sensitive species, including the Riverside fairy shrimp, and serves as the basis for development of subarea plans by each jurisdiction in support of section 10(a)(1)(B) permits. The subregional MSCP identifies where mitigation activities should be focused, such that upon full implementation of the subarea plans, approximately 171,920 ac (69,574 ha) of the 582,243-ac (235,626-ha) MSCP plan area will be preserved and managed for covered species. The MSCP also provides for a regional biological monitoring program, with the Riverside fairy shrimp identified as a first-priority species for field monitoring.
Consistent with the MSCP, the conservation of Riverside fairy shrimp is addressed in the County of San Diego Subarea Plan. The County of San Diego Subarea Plan identifies areas that are hard-lined for conservation and areas where mitigation activities should be focused to assemble its preserve (pre-approved mitigation area). Implementation of the County of San Diego Subarea Plan will result in a minimum 98,379-ac (39,813-ha) preserve area.
A portion of Subunit 5d (23 ac (9 ha)) is within the County of San Diego Subarea Plan. Within the covered area, 6 ac (2 ha) are within a hard-lined preserve area. These hard-lined preserve lands were designated in conjunction with the Otay Ranch Specific Plan, and are to be conveyed to a land manager (for example, County or Federal government) in phases such that 1.18 ac (0.48 ha) are conserved for every 1 ac (0.40 ha) developed. A natural resource management plan has been developed that addresses the preservation, enhancement, and management of sensitive natural resources on the 22,899-ac (9,267-ha) Otay Ranch hard-lined preserve area (County of San Diego 1997, pp. 3-15). The remaining 17 ac (7 ha) are outside the hard-lined preserve. This portion of the unit receives protections set out in the County of San Diego Subarea Plan, including the requirement that any impacts to the Riverside fairy shrimp and vernal pools be avoided to the maximum extent practicable; where complete avoidance is infeasible, projects would be designed to avoid any significant reduction to species viability (Service 1998b, pp. 33, 43, 66). Any unavoidable impacts will be minimized and mitigated to achieve no net loss of function or value (Service 1998b, p. 66).
The Secretary is exercising his discretion to exclude the portion of Subunit 5d (23 ac (9 ha)) of land within the boundaries of the County of San Diego Subarea Plan from this final critical habitat designation.
The designation of critical habitat can result in regulatory, educational, and ancillary benefits. As discussed under
However, for reasons stated in the
Another possible benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the Riverside fairy shrimp and its habitat that reaches a wide audience, including parties engaged in conservation activities, is valuable. In the case of the Riverside fairy shrimp, however, there have already been multiple occasions when the public has been educated about the species. The framework of the regional San Diego MSCP was developed over a 7-year period, while the County of San Diego Subarea Plan has been in place for over a decade. Implementation of the subarea plans is formally reviewed yearly through publicly available annual reports and a public meeting, again providing extensive opportunity to educate the public and landowners about the location of, and efforts to conserve, essential Riverside fairy shrimp habitat. As discussed above, the permit holders of the County of San
Lands identified as critical habitat for the Riverside fairy shrimp that are covered by the County of San Diego Subarea Plan were also included in the proposed designation published in the
Finally, critical habitat designation can also result in ancillary conservation benefits to the Riverside fairy shrimp by triggering additional review and conservation through other Federal and State laws. The primary State law that might be affected by critical habitat designation is CEQA. However, lands identified as critical habitat within the County of San Diego in Subunit 5d are required to be protected under the Subarea Plan. Thus, review of development proposals affecting lands identified as critical habitat for the Riverside fairy shrimp in Subunit 5d under CEQA by the County of San Diego already takes into account the importance of this habitat to the species and the protections required for the species and its habitat under the Subarea plan. The Federal law most likely to afford protection to designated Riverside fairy shrimp habitat is the CWA. Projects requiring a permit under the CWA, such as a fill permit under section 404 of the CWA, located within critical habitat or likely to affect critical habitat, would trigger section 7 consultation under the Act. However, as discussed above, we conclude the potential regulatory benefits resulting from designation of critical habitat would be negligible because, with regard to the Riverside fairy shrimp, the outcome of an adverse modification analysis under section 7(a)(2) of the Act would not differ materially from the outcome of a jeopardy analysis. Therefore, we conclude the ancillary benefits of designating habitat containing the physical or biological features essential to the conservation of the Riverside fairy shrimp within that portion of Subunit 5d covered by the County of San Diego Subarea Plan as critical habitat would be negligible.
For the reasons stated above, we consider section 7 consultations for critical habitat designation conducted under the standards required by the 9th Circuit Court in the
The benefits of excluding from designated critical habitat the approximately 23 ac (9 ha) of land within the County of San Diego Subarea Plan are significant. The benefits of excluding critical habitat covered by these plans include: (1) Continuance and strengthening of our effective working relationships with the County of San Diego and all MSCP jurisdictions and stakeholders to promote the conservation of the Riverside fairy shrimp and its habitat; (2) allowance for continued meaningful collaboration and cooperation in working toward recovering the Riverside fairy shrimp, including conservation benefits that might not otherwise occur; (3) encouragement of other jurisdictions with completed subarea plans under the MSCP to amend their plans to cover and benefit Riverside fairy shrimp and vernal pool habitat (such as the City of Poway Subarea Plan under the MSCP); (4) encouragement of other jurisdictions to complete subarea plans under the MSCP (including the City of Santee) to cover and benefit Riverside fairy shrimp and vernal pool habitat; (5) encouragement for the City of San Diego to complete its draft vernal pool management plan; and (6) encouragement of additional HCP and other conservation plan development in the future on other private lands that include Riverside fairy shrimp and other federally listed species.
We have developed close partnerships with the County of San Diego, and several other stakeholders, and the protections and management provided for the Riverside fairy shrimp and its habitat are consistent with statutory mandates under section 7 of the Act to avoid destruction or adverse modification of critical habitat. Furthermore, this plan goes beyond the statutory mandate by requiring active management of the portion of Subunit 5d covered by the County of San Diego Subarea Plan and within the hardline reserves (6 ac (2 ha)). By excluding the approximately 23 ac (9 ha) of land covered by the County of San Diego Subarea Plan from critical habitat designation, we are eliminating a redundant layer of regulatory review for the approved Otay Ranch Specific Plan under the County of San Diego Subarea Plan and encouraging new voluntary partnerships with other landowners and jurisdictions to protect the Riverside fairy shrimp and other listed species. As discussed above, the prospect of potentially avoiding a future designation of critical habitat provides a meaningful incentive to plan proponents to extend protections to endangered and threatened species and their habitats under a habitat conservation plan. Achieving comprehensive landscape-level protection for listed species, particularly rare vernal pool species such as Riverside fairy shrimp through their inclusion in regional conservation plans, provides a key conservation benefit for such species. Our ongoing partnerships with the county of San Diego and the regional MSCP participants, and the landscape-level multiple species conservation planning efforts they promote, are essential to achieve long-term conservation of Riverside fairy shrimp.
As noted in the
Large-scale HCPs, such as the regional MSCP and County of San Diego Subarea Plan issued under its framework, take many years to develop, and foster a strategic, ecosystem-based approach to habitat conservation planning by addressing conservation issues through a coordinated approach. If, instead, local jurisdictions were to require landowners to individually obtain ITPs under section 10 of the Act, the conservation likely to result would be uncoordinated, patchy, and less likely to achieve listed species recovery as conservation measures would be determined on a project-by-project basis instead of on a comprehensive, landscape-level scale. To avoid that outcome, we are committed to fostering partnerships with local jurisdictions to encourage the development of regional HCPs that afford proactive landscape-level conservation for multiple species. We conclude that the exclusion from critical habitat designation of lands identified as critical habitat for the Riverside fairy shrimp in Subunit 5d within the County of San Diego Subarea Plan will result in significant partnership benefits that we conclude will result in greater protection for the Riverside fairy shrimp and its habitat and also other listed species and their habitats.
We reviewed and evaluated the exclusion of approximately 23 ac (9 ha) of land within the boundaries of the County of San Diego Subarea Plan from our revised designation of critical habitat, and we determined the benefits of excluding these lands outweigh the benefits of including them. The benefits of including these lands in the designation are reduced because the regulatory, educational, and ancillary benefits that would result from critical habitat designation are almost entirely redundant with the regulatory, educational, and ancillary benefits already afforded through the County of San Diego Subarea Plan and under State and Federal law. In contrast to the reduced benefits of inclusion, the benefits of excluding lands covered by the County of San Diego Subarea Plan from critical habitat designation are significant. Exclusion of these lands will help preserve the partnerships we developed with local jurisdictions and project proponents through the development and ongoing implementation of the MSCP and the County of San Diego Subarea Plan, and aid in fostering future partnerships for the benefit of listed species. Our partnership with the County of San Diego has already resulted in significant benefits to listed species and vernal pool habitat; based on this track record of success, we expect that this meaningful partnership will continue into the future.
Designation of lands covered by the County of San Diego Subarea Plan may discourage other partners from seeking, amending, or completing subarea plans under the MSCP framework or from pursuing other HCPs that cover the Riverside fairy shrimp and other listed vernal pool species. Designation of critical habitat does not require that management or recovery actions take place on the lands included in the designation. The County of San Diego Subarea Plan will provide significant protection of the Riverside fairy shrimp and its habitat, and help achieve recovery of this species through habitat enhancement and restoration, functional connections to adjoining habitat, and species monitoring efforts. Additional HCPs or other species-habitat plans potentially fostered by this exclusion would also help to recover this and other federally listed species. Therefore, in consideration of the relevant impact to current and future partnerships, as summarized in the
We determine that the exclusion of 23 ac (9 ha) of land in Subunit 5d within the boundaries of the County of San Diego Subarea Plan from the designation of critical habitat for the Riverside fairy shrimp will not result in extinction of the species. Proposed actions that affect waters of the United States as defined under the CWA, which in many cases include vernal pools occupied by Riverside fairy shrimp, will continue to be subject consultation under section 7(a)(2) of the Act and to the duty to avoid jeopardy to the species. The protection provided by the County of San Diego Subarea Plan also provides assurances that this species will not go extinct as a result of excluding these lands from the critical habitat designation.
Therefore, the Secretary is exercising his discretion to exclude 23 ac (9 ha) of land within the boundaries of the County of San Diego Subarea Plan from this final critical habitat designation.
We requested written comments from the public on the proposed designation of revised critical habitat for Riverside fairy shrimp during two comment periods. The first comment period associated with the publication of the proposed rule (76 FR 31686) opened on June 1, 2011, and closed on August 1, 2011. We also requested comments on the proposed critical habitat designation and associated DEA during a comment period that opened March 1, 2012, and closed on April 2, 2012 (77 FR 12543). We published a notice of the proposed rulemaking in local newspapers on June 6, 2011. We did not receive any requests for a public hearing. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and DEA during these comment periods.
During the first comment period, we received five comment letters directly addressing the proposed critical habitat designation. During the second comment period, we received one comment letter addressing the proposed critical habitat designation or the DEA. All substantive information provided during the comment periods has either been incorporated directly into this final determination or is addressed below. Comments we received were grouped into two general issues specifically relating to the proposed critical habitat
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from four species experts in invertebrate biology, freshwater crustaceans and fairy shrimp. These reviewers are also experts in vernal pool habitat in southern California, and conservation biology principles. We received responses from all four of the peer reviewers.
We reviewed all peer reviewer comments for substantive issues and new information regarding critical habitat for Riverside fairy shrimp. In general, the peer reviewers welcomed the expanded critical habitat and the conservation of more pools, but disagreed with the exclusion of lands within HCPs and the exemption of military lands. The peer reviewers provided additional information on Riverside fairy shrimp ecology and vernal pool ecology, including information on climate change. The reviewers also provided clarification and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
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(4) Three peer reviewers had comments on genetic aspects of Riverside fairy shrimp ecology. The reviewers noted that genetic variation in Riverside fairy shrimp is lower than for other
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We recognize that the designation of critical habitat may not include all of the habitat that may eventually be determined to be necessary for the recovery of the Riverside fairy shrimp. Critical habitat designations do not signal that habitat outside the designation is unimportant or may not contribute to recovery. Areas outside the critical habitat designation will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and regulatory protections afforded by the section 7(a)(2) jeopardy standard and the prohibitions of section 9 of the Act, if actions occurring in these areas may affect the Riverside fairy shrimp. These protections and conservation tools will continue to contribute to recovery of this species.
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We also agree that it is important to preserve upland habitat and watersheds associated with vernal pool complexes, and that the loss of those features could detrimentally alter water chemistry and ponding depth. In PCE 2, we require “intermixed wetland and upland habitats that function as the local watershed, including topographic features characterized by mounds, swales, and low-lying depressions within a matrix of upland habitat that result in intermittently flowing surface and subsurface water in swales, drainages, and pools described in PCE 1.” We conclude that, with the PCEs, we have preserved upland habitat and watersheds associated with vernal pools that support the physical or biological features necessary for the conservation of the Riverside fairy shrimp.
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Section 4(a)(3)(B)(i) of the Act describes exemptions from critical habitat that apply to DOD land. The Secretary has determined that the INRMPs for MCB Camp Pendleton and MCAS Miramar provide a benefit to the Riverside fairy shrimp, and that the lands they cover are therefore exempt from critical habitat designation. More detail on our rationale is presented in the
We respectfully disagree with the peer reviewer that staff at MCB Camp Pendleton do not take their requirement for management seriously. MCB Camp Pendleton consults with the Service for all impacts to vernal pool habitat, including unplanned impacts sustained during training activities. In the case of any unplanned impacts, MCB Camp Pendleton consults with us retroactively on those impacts and works to minimize future impacts to vernal pool habitat. In regard to the commenter's assertion that pools are planned for development for reasons other than national security, the Service continues to review all project proposals through the section 7 process, and will ensure that all development carried out does not jeopardize the continued existence of the Riverside fairy shrimp.
We also disagree that exempting these areas from critical habitat will jeopardize the continued existence of the Riverside fairy shrimp. Sections 4(a)(3)(B)(ii) and (iii) of the Act note that agencies granted an exemption must still consult under section 7(a)(2) of the Act, and that the DOD must comply with section 9, “including the prohibition preventing extinction and taking of endangered species and threatened species.” Thus, although military bases can be exempt from critical habitat, the Act has mechanisms in place to prevent extinction. Therefore, we find that exempting military lands at MCB Camp Pendleton and MCAS Miramar under section 4(a)(3)(B)(i) of the Act is justified.
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Based on the benefits to the Riverside fairy shrimp and its habitat that are provided by these habitat conservation plans, we chose to conduct exclusion analyses to compare the benefits of excluding areas covered by these existing conservation plans with the benefits of including those areas within this final revised critical habitat designation. We note that a decision to exclude an area is not based on the difference between the protection provided by critical habitat designation and an HCP, but takes into account the redundancy of protections provided by an HCP with those provided by critical habitat designation. Conservation benefits provided by an existing HCP are not considered a benefit of exclusion because they would remain in place regardless of critical habitat designation; however, the conservation provided under an HCP does minimize the benefits of inclusion to the extent that the protection that would result from critical habitat designation is redundant with the protection already provided under an HCP. In the case of the identified HCPs, we concluded that the protection for habitat containing physical or biological features essential to the conservation of the Riverside fairy shrimp that is likely to result from designation of lands covered by the HCPs is almost entirely redundant with the protection for such habitat provided by the HCPs, thus minimizing the conservation benefit of designation.
In the case of the HCPs discussed above, we also weighed other benefits of designation against the potential negative effects of designating areas covered by the HCPs on future partnerships and the development of new HCPs. We concluded that designating critical habitat within these HCPs could have a detrimental effect on our conservation partnerships (see the
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We respectfully disagree with the commenter that the DHS lands identified as essential do not contain the PCEs. In an earlier proposed revised critical habitat rule published on April 27, 2004 (69 FR 23024), we did identify some lands as critical habitat that we subsequently removed in the final revised rule (70 FR 19154; April 12, 2005) due to lack of PCEs from construction of the BIS. The removed areas were not included in our 2011 proposed critical habitat designation, because they do not contain the PCEs. As described under
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In reference to the commenter's question about roads, the term “roads” refers to all roads, including both paved roads and unpaved dirt roads.
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In regard to the commenter's point about educational benefits and impacts of critical habitat on CEQA analysis, we agree that negligible educational benefits would be realized by the designation of critical habitat. We also agree that review of development proposals affecting lands identified as critical habitat for the Riverside fairy shrimp under CEQA by Orange County already takes into account the importance of this habitat to the species and the protections required for the species and its habitat under the Subarea plan. Details of our rationale are given in our discussion of the Orange County Southern Subregion HCP under
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In regard to the commenter's point about the existing conservation and management plan, we reiterate that areas are not excluded based solely on the existence of management plans or other conservation measures; however, we acknowledge that the existence of a plan may reduce the benefits of inclusion of an area from critical habitat to the extent that the protections provided under the plan are redundant with conservation benefits of the critical habitat designation. Thus, in some cases the benefits of exclusion in the form of sustaining and encouraging partnerships that result in on-the-ground conservation of listed species may outweigh the incremental benefits of inclusion. In this case, we agree with the commenter that excluding areas covered by the Western Riverside County MSHCP will foster our partnership. We have weighed the benefits of exclusion against the benefits of inclusions for lands covered by the Western Riverside County MSHCP, and based on the discussion of the Western Riverside County MSHCP under
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However, as described in our discussion of the Western Riverside MSHCP under
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Because occurrences documented since listing are within relative proximity to existing, occupied, vernal pool habitat or within similar landscape types (for example, coastal terraces and mesas, inland valleys, inland mesas, and cismontane depressions) supporting ephemeral wetlands with occurrences that were known at the time of listing, it is reasonable to conclude, based on several life-history traits, that the Riverside fairy shrimp was present at the time of listing in these unsurveyed habitats. This subunit is known to be currently occupied; dry season surveys in 2011 by Busby Biological Services documented the presence of Riverside fairy shrimp cysts (Busby Biological Services 2011, Attachment 3). This subunit was first documented as occupied in 2000 (GIS ID 4). Subunit 5c contained the physical or biological features essential to the conservation of the species and the features known to support life-history characteristics of the Riverside fairy shrimp at the time of listing. Therefore, for the aforementioned reasons, although not “documented” to have been occupied at listing, we conclude this subunit was occupied at the time of listing, and that this rationale makes use of the best scientific and commercial information available.
Regardless, as stated in our March 1, 2012, publication (77 FR 12543), and in this final revised critical habitat rule, we are alternatively designating Subunit 5c under section 3(5)(A)(ii) of the Act because we consider this unit essential for the conservation of the Riverside fairy shrimp regardless of its occupancy status at listing, and conclude that a designation limited to areas known to be occupied at the time of listing would be inadequate to ensure the conservation of the species. We conclude that this approach also makes use of the best scientific and commercial information available.
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We agree with the commenter that Riverside fairy shrimp are sometimes transferred by frequent vehicle use (Navy 2001, 2002, entire). However, Subunit 5c contains the physical or biological features essential to the conservation of the species including ephemeral wetland habitat (PCE 1), intermixed wetland and upland habitats that act as the local watershed (PCE 2), and topography and soils that support ponding during winter and spring months (PCE 3). As discussed in the
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We agree that not all portions of Subunit 5c are made up of vernal pool basins. Vernal pool basins are not the only PCE identified for the Riverside fairy shrimp. As described in our
In regard to the commenter's assertion that a created pond could not provide the physical or biological features essential to the conservation of the species, as discussed in the Primary Constituent Elements for Riverside Fairy
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The commenter suggested that Subunit 5c should be excluded for economic reasons. Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. We prepared a draft economic analysis (DEA) of the proposed critical habitat designation and related factors (Industrial Economics Inc. 2011, entire). The draft analysis, dated November 3, 2011, was made available for public review and comment for 30 days (77 FR 12543, March 1, 2012). Following the close of the comment period, a final analysis (dated August 30, 2012) of the potential economic effects of the designation was developed, taking into consideration the public comments we received and any new information (Industrial Economics Inc. 2012). Our economic analysis did not identify any disproportionate costs likely to result from the designation. Because this area is currently known to be occupied by Riverside fairy shrimp (see “Subunit 5c: East Otay Mesa” above and response to comment 29), consultation under section 7 of the Act would be required if the proposed landfill would affect waters of the United States under the CWA. Alternatively, if the project had no Federal nexus and would result in take of Riverside fairy shrimp, an incidental take permit under section 10 of the Act would be required. In either case, the costs associated with avoiding adverse modification of critical habitat are likely to mirror those necessary to avoid jeopardy to the species. Therefore, critical habitat designation is not likely to result in incremental costs other than minor administrative costs associated with consideration of critical habitat in the section 7 consultation. Additionally, the lands that make up Subunit 5c area are already identified as critical habitat for the Quino checkerspot butterfly; therefore, an adverse modification analysis would be required for the project, assuming the existence of a Federal nexus, regardless of this final revised critical habitat designation. Our economic analysis did not identify any disproportionate costs likely to result from the designation. Specifically, because we conclude that the designation of critical habitat would not meaningfully influence whether a landfill can be constructed in Subunit 5c as there are existing constraints on development of these lands due to the presence of Riverside fairy shrimp and the designation of Subunit 5c lands as Quino checkerspot critical habitat, we also conclude that the public benefits asserted by the commenter—the need for a new landfill and the jobs that would result from a landfill project—are not traceable to and would not be avoided by an exclusion of Subunit 5c from the designation. Therefore, the Secretary has declined to exercise his discretion to exclude any areas, including Subunit 5c, from this designation of critical habitat for Riverside fairy shrimp based on economic impacts or public benefits (for more information see “Exclusions Based on Economic Impacts” section above). See also Response to Comment 37.
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The Service's current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly affected by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service's current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess costs and benefits of all available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the EO regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. Further details are provided in the
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We respectfully disagree with the commenter that our change in policy was arbitrary. As described in the DEA, we developed our current methodology in response to conflicting court decisions. In the DEA, we address the divergent court opinions by analyzing both the baseline protections accorded to the Riverside fairy shrimp absent critical habitat designation and by monetizing incremental impacts attributable to critical habitat designation. We determine that this methodology addresses the divergent opinion of the courts and provides a thorough review for policymakers that enables them to consider the true costs of critical habitat designation, by comparing the costs that would occur solely as a result of designation to those costs that would occur in the absence of designation.
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Under section 4(b)(2) of the Act and its implementing regulations at 50 CFR 424.19, the Secretary is required to identify significant activities that are likely to be affected by a critical habitat designation and consider the probable economic and other impacts of the designation on those activities. The significant activities subject to this consideration are those that are carried out, authorized, or funded by a Federal agency, because the consequences of critical habitat designation result from the obligation of Federal agencies to consult under section 7 of the Act and to ensure that their activities are not likely to jeopardize any listed species or destroy or adversely modify designated critical habitat. Thus, whether designation of critical habitat could affect the siting of a new recycling center and landfill in Subunit 5c depends, in the first instance, on whether Federal authorization is required to build such a landfill. For purposes of addressing this comment, we assume that a Federal nexus that would trigger section 7 consultation under the Act would exist. The most likely Federal nexuses triggering section 7 consultation would be the need for a Section 404 permit under the CWA if the project would affect jurisdictional waters of the United States or the need for an incidental take permit under section 10 of the Act because the proposed project would result in take of the Riverside fairy shrimp.
Assuming that a Federal nexus exists, we next must determine if the designation of critical habitat would result in impacts to the future recycling center and landfill. If the designation would not itself result in impacts to the project beyond those already likely to occur as a result of the listing of the Riverside fairy shrimp, then the project is not an “other relevant impact” of designation under section 4(b)(2) of the Act.
The pool in Subunit 5c is known to be occupied by Riverside fairy shrimp and, as a result, in the event of a future consultation on the project under section 7 of the Act, the Service would be required to evaluate the effects of the East Otay Mesa Recycling Collection Center and Landfill Project on Riverside fairy shrimp occupying the pool, regardless of the designation of critical habitat. As discussed under the
We consider it likely that any measures identified as necessary to avoid adverse modification of Riverside fairy shrimp critical habitat in Subunit 5c would also be required to avoid jeopardy to the species. We also note that the project area contains designated critical habitat for the Quino checkerspot butterfly. Assuming the existence of a Federal nexus for the project, an adverse modification analysis for Quino checkerspot butterfly critical habitat also would be required (regardless of whether or not Subunit 5c is designated as Riverside fairy shrimp critical habitat). For these reasons, we conclude that designation of critical habitat in Subunit 5c is not likely to affect whether a recycling center and landfill can be developed or to impose restrictions on such development beyond those that would result from listing of the species. This conclusion is consistent with the results of our FEA, which did not identify any incremental economic impacts of designation beyond the minor added administrative costs of including an evaluation of critical habitat in future section 7 consultations involving Subunit 5c (Industrial Economics Inc. 2012, p. 4-17).
We have taken into account the potential economic impacts (see response to comment 32) and any other relevant impact of designating Subunit 5c as critical habitat. We conclude that designation of critical habitat will not result in significant economic impacts or other relevant impacts under section 4(b)(2) of the Act. Subunit 5c contains the physical or biological features necessary for the conservation of the Riverside fairy shrimp and is essential for the conservation of the Riverside fairy shrimp, and the Secretary has declined to consider this area for exclusion under 4(b)(2) of the Act.
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In regard to the commenter's second point, Monte Carlo analyses generate a range of outcomes by randomly sampling from statistical distributions of uncertain input parameters, and then running the model using those chosen inputs. The process is repeated (in this case 100,000 times) until a representative set of outputs has been generated. The bell-shaped statistical distribution of the outputs in this analysis was therefore generated from repeatedly sampling the input distributions and running the model; it
With regard to the commenter's question about how scenarios were chosen, as described on page 4-14 of the DEA, absent information on the likelihood of any particular outcome in developable areas not covered by HCPs, the analysis assumes that an equal probability exists that a property will be located in one of the four geographic situations described in the development chapter: (a) Entirely in upland areas, (b) proximate to a nonjurisdictional pool, (c) proximate to a jurisdictional pool that is occupied, or (d) proximate to a jurisdictional pool that is unoccupied.
The commenter is correct that the sum of development cost ranges for each subunit does not match the range from the distribution of all costs. As described on page 4-18 and in Exhibit 4-8 of the DEA, this occurs because the distribution of total costs across the proposed revised critical habitat area has a narrower range than the aggregation of the distributions for each subunit. In other words, it is not realistic to assume that every property will experience the most costly option for each variable included in the model (the sum of the upper bounds of the distributions). Likewise, it is unlikely that none of the affected properties will experience any impacts (the sum of the lower bounds of the distributions).
Finally, the DEA delineates proposed critical habitat areas into three categories in the development chapter: (a) Not developable, (b) developable but in HCP areas that the Service is considering for exclusion, and (c) other developable areas. As described above, the four geographic situations are applied with equal probability to lands in the third category (other developable areas). The areas of each subunit in this category are identified in Exhibits 4-9 through 4-23.
(39)
With regard to the commenter's assertion about mean development project size, as noted by the commenter and described on page 4-5, the estimated number of housing units per project is based on the consultation history. As described in Exhibit 4-24, it is uncertain whether this estimate is too high or too low, and how the number will vary across projects in the future. The commenter does not provide additional information to refine this estimate.
In section 2.4.4, the DEA describes why 60 percent and 41 percent are used as the two alternative areas subject to conservation plans. If the City of San Diego Subarea Plan was approved and implemented, an additional 19 percent of proposed critical habitat would be subject to an HCP and considered for exclusion. This additional 19 percent over the 41 percent subject to existing HCPs would lead to 60 percent of proposed critical habitat potentially subject to HCPs in the future.
(40)
(41)
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the SBA, small entities include small organizations, such as independent nonprofit organizations, small governmental jurisdictions including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts on these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the rule could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities, such as: (1) Agricultural, commercial, and residential development; (2) transportation; and (3) livestock grazing and other human activities. We apply the “substantial number” test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized, funded, or carried out by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect the Riverside fairy shrimp. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see
In our FEA of the critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of the Riverside fairy shrimp and the designation of critical habitat. The analysis is based on the estimated impacts associated with the rulemaking as described in chapters 4, 5, and Appendix A of the FEA, and evaluates the potential for economic impacts related to activity categories, including development, transportation, and other human activities, such as habitat management, livestock grazing, and water management, as well as impacts to the energy industry (Industrial Economics Inc. 2012, pp. 4-1-6-6, A-1-A-7).
As described in chapters 4 and 5 of the FEA, estimated incremental impacts consist primarily of administrative costs and time delays associated with section 7 consultation and CEQA review. The Service and the Federal action agency are the only entities with direct compliance costs associated with this critical habitat designation, although small entities may participate in section 7 consultation as a third party. It is, therefore, possible that the small entities may spend additional time considering critical habitat during section 7 consultation for the Riverside fairy shrimp. The FEA indicates that the incremental impacts potentially incurred by small entities are limited to the development sector.
In order to understand the potential impacts on small entities attributable to development activities, the FEA
The Service's current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service's current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the EO regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable.
In doing so, we focus on the specific areas being designated as critical habitat and compare the number of small business entities potentially affected in that area with other small business entities in the region, instead of comparing the entities in the area of designation with entities nationally, which is more commonly done. This analysis results in an estimation of a higher number of small businesses potentially affected. In this rulemaking, we calculate that less than 3 percent or 1 percent (assuming that all landowners are land subdividers or construction firms), respectively, of all small entities in the area would be affected when this final rule becomes effective. If we were to calculate that value based on the proportion nationally, then our estimate would be significantly lower than 1 percent. Following our evaluation of potential effects to small business entities from this rulemaking, we conclude that the number of potentially affected small businesses is not substantial.
The FEA also concludes that none of the government entities with which the Service might consult on the Riverside fairy shrimp for transportation or habitat management activities meets the definitions of small as defined by the SBA (Industrial Economics Inc. 2012, p. A-6); therefore, impacts to small government entities due to transportation and habitat management activities are not anticipated. A review of the consultation history for the Riverside fairy shrimp suggests future section 7 consultations on livestock grazing (for example, ranching operations) and water management are unlikely, and as a result are not anticipated to be affected by this rule (Industrial Economics Inc. 2012, pp. A-6-A-7).
In summary, we have considered whether this revised designation will result in a significant economic impact on a substantial number of small entities and the energy industry. Information for this analysis was gathered from the SBA, stakeholders, and from Service files. We determined that less than 3 percent of land subdividers or 1 percent of construction firms engaged in development activity within the area proposed for designation would be affected when the final rule becomes effective (Industrial Economics Inc. 2012, p. A-5). Given that this final rule excludes 1,259 ac (510 ha), the costs of the critical habitat designation will likely be even lower. Therefore, we are certifying that the designation of critical habitat for Riverside fairy shrimp will not have a significant economic impact on a substantial number of small entities, and an RFA is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration.
The economic analysis finds that none of these criteria is relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with Riverside fairy shrimp conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and
The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not expect this rule to significantly or uniquely affect small governments. Small governments would be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions would not adversely affect critical habitat. Therefore, a Small Government Agency Plan is not required.
In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Riverside fairy shrimp in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. The takings implications assessment concludes that this designation of revised critical habitat for Riverside fairy shrimp does not pose significant takings implications for lands within or affected by the designation.
In accordance with Executive Order 13132 (Federalism), this rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this critical habitat designation with appropriate State resource agencies in California. We received no comments from State agencies. The designation of critical habitat in areas currently occupied by the Riverside fairy shrimp imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas that contain the physical or biological features essential to the conservation of the species are more clearly defined, and the elements of the features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the applicable standards set forth in sections 3(a) and 3(b)(2) of the Order. To assist the public in understanding the habitat needs of the species, the rule identifies the elements of physical or biological features essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested parties to obtain more detailed location information, if desired.
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to NEPA (42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We determined that there are no tribal lands occupied by the Riverside fairy shrimp at the time of listing that contain the features essential to conservation of the species, and no tribal lands unoccupied by the Riverside fairy shrimp that are essential for the conservation of the species. Therefore, we are not designating critical habitat for Riverside fairy shrimp on tribal lands.
A complete list of all references cited is available on the Internet at
The primary authors of this rulemaking are the staff members of the Carlsbad Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
(h)
(1) Unit descriptions are depicted for Ventura, Orange, and San Diego Counties, California, on the maps below.
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Riverside fairy shrimp consist of three components:
(i) Ephemeral wetland habitat consisting of vernal pools and ephemeral habitat that have wet and dry periods appropriate for the incubation, maturation, and reproduction of the Riverside fairy shrimp in all but the driest of years, such that the pools:
(A) Are inundated (pond) approximately 2 to 8 months during winter and spring, typically filled by rain, surface, and subsurface flow;
(B) Generally dry down in the late spring to summer months;
(C) May not pond every year; and
(D) Provide the suitable water chemistry characteristics to support the Riverside fairy shrimp. These characteristics include physiochemical factors such as alkalinity, pH, temperature, dissolved solutes, dissolved oxygen, which can vary depending on the amount of recent precipitation, evaporation, or oxygen saturation; time of day; season; and type and depth of soil and subsurface layers. Vernal pool habitat typically exhibits a range of conditions but remains within the physiological tolerance of the species. The general ranges of conditions include, but are not limited to:
(
(
(
(ii) Intermixed wetland and upland habitats that function as the local watershed, including topographic features characterized by mounds, swales, and low-lying depressions within a matrix of upland habitat that result in intermittently flowing surface and subsurface water in swales, drainages, and pools described in paragraph (h)(2)(i) of this entry. Associated watersheds provide water to fill the vernal or ephemeral pools in the winter and spring months. Associated watersheds vary in size and therefore cannot be generalized, and they are affected by factors including surface and underground hydrology, the topography of the area surrounding the pool or pools, the vegetative coverage, and the soil substrates in the area. The size of associated watersheds likely varies from a few acres to greater than 100 ac (40 ha).
(iii) Soils that support ponding during winter and spring which are found in areas characterized in paragraphs (h)(2)(i) and (h)(2)(ii), respectively, of this entry, that have a clay component or other property that creates an impermeable surface or subsurface layer. Soil series with a clay component or an impermeable surface or subsurface layer typically slow percolation, increase water run-off (at least initially), and contribute to the filling and persistence of ponding of ephemeral wetland habitat where the Riverside fairy shrimp occurs. Soils and soil series known to support vernal pool habitat include, but are not limited to:
(A) The Azule, Calleguas, Cropley, and Linne soils series in Ventura County;
(B) The Alo, Balcom, Bosanko, Calleguas, Cieneba, and Myford soils series in Orange County;
(C) The Cajalco, Claypit, Murrieta, Porterville, Ramona, Traver, and Willows soils series in Riverside County; and
(D) The Diablo, Huerhuero, Linne, Placentia, Olivenhain, Redding, Salinas, and Stockpen soils series in San Diego County.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on January 3, 2013.
(4)
(5)
(6) Unit 1: Ventura County, California. Map of Subunit 1a, Tierra Rejada Preserve, and Subunit 1b, South of Tierra Rejada Valley, follows:
(7) Unit 2: Los Angeles Basin-Orange County Foothills, Orange County, California.
(i) Map of Subunit 2dA, Saddleback Meadows, and Subunit 2dB, O'Neill Regional Park (near Trabuco Canyon), follows:
(ii) Map of Subunit 2e, O'Neill Regional Park (near Cañada Gobernadora), follows:
(iii) Map of Subunit 2h, San Onofre State Beach, State Park-leased land (near Christianitos Creek foothills) (near Camp Pendleton), follows:
(8) Unit 5: San Diego Southern Coastal Mesas, San Diego County, California.
(i) Map of Subunit 5a, Sweetwater (J33); Subunit 5e, J2 N, J4, J5 (Robinhood Ridge); Subunit 5f, J2 W and J2 S (Hidden Trails, Cal Terraces, Otay Mesa Road); Subunit 5g, J14; and Subunit 5h, J11 E and J11 W, J12, J16-18 (Goat Mesa), follows:
(ii) Map of Subunit 5c, East Otay Mesa, follows:
(iii) Map of Subunit 5d, J29-31, follows:
Office of the Secretary, Labor.
Notice of proposed rulemaking.
The Department of Labor proposes to revise and reorganize the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, from our regulations, which provide procedural guidance to administrative law judges, claimants, employers, and Department of Labor representatives seeking to resolve disputes under a variety of employment and labor laws. The Office of Administrative Law Judges promulgated these regulations in 1983. The regulations were modeled on the Federal Rules of Civil Procedure (FRCP) and have proved extraordinarily helpful in providing litigants with familiar rules governing hearing procedure.
Since 1983, the FRCP have been amended many times. Moreover, in 2007 the FRCP were given a complete revision to improve style and clarity. The nature of litigation has also changed in the past 28 years, particularly in the areas of discovery and electronic records. Thus, OALJ has revised its regulations to make the rules more accessible and useful to parties, and to harmonize administrative hearing procedures with the current FRCP. The goal in amending the regulations is to provide clarity through the use of consistent terminology, structure and formatting so that parties have clear direction when pursuing or defending against a claim.
In addition to revising the regulations to conform to modern legal procedure, the rules need to be modified to reflect the types of claims now heard by OALJ. When the rules were promulgated in 1983, OALJ primarily adjudicated occupational disease and injury cases. Presently, and looking ahead to the future, OALJ is and will be increasingly tasked with hearing whistleblower and other workplace retaliation claims, in addition to the occupational disease and injury cases. These types of cases require more structured management and oversight by the presiding administrative law judge and more sophisticated motions and discovery procedures than the current regulations provide. In order to best manage the complexities of whistleblower and discrimination claims, OALJ needs to update its rules to address the procedural questions that arise in these cases.
Submit comments on or before February 4, 2013.
You may submit comments by any of the following methods:
Todd Smyth at the U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW Suite 400-North, Washington, DC 20001-8002; telephone (202) 693-7300.
Administrative law judges at the Office of Administrative Law Judges (OALJ), United States Department of Labor (Department), conduct formal hearings under the Administrative Procedure Act, 5 U.S.C. 554 through 557. An administrative law judge manages hearings that mirror federal civil litigation, is bound by applicable rules of evidence and procedure, and is insulated from political influence.
The current Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 CFR part 18, subpart A (Part 18, Subpart A), were published on July 15, 1983.
The OALJ rules of practice and procedure are analogous to the Federal Rules of Civil Procedure used in the United States District Courts. Congress authorized the Supreme Court to prescribe rules for the United States District Courts in 1934, under the Rules Enabling Act, 28 U.S.C. 2072. The original version of those rules became effective on September 16, 1938.
The disputes that comprise the docket at OALJ have also changed with time. When the rules of practice and procedure were first published, OALJ's judges mainly (but not exclusively) were devoting their efforts to deciding benefit claims under two broad statutory categories:
• The Black Lung Benefits Act, subchapter 4 of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. 901
• The Longshore Act and its extensions, which included the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 (1927); the Outer Continental Shelf Lands Act, 43 U.S.C. 1333 (1953); and the Defense Base Act, as amended, 42 U.S.C. 1651 (1941).
Over the last nearly two decades, Congress charged the Department of Labor (and consequently the OALJ) with the responsibility to hear and decide matters under many new statutes. Most relate to complaints by employees who assert their employers retaliated against them after they engaged in whistleblower activity. Some of these statutes for example are:
• Section 110 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610, Public Law 96-510, 94 Stat. 2787, enacted on December 11, 1980;
• Section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. 31105, Public Law 97-424, 96 Stat. 2097, 2157-58, first enacted on January 6, 1983 (and originally codified as 49 U.S.C. 2301
• Section 212(n)(2)(C)(iv) of the Immigration and Nationality Act, 8 U.S.C. 1182(n)(2)(C)(iv), as amended by the American Competitiveness and Workforce Improvement Act of 1998, which was part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1998, Public Law 105-277, div. C, tit. IV, sec. 411(a), 112 Stat. 2681-641 to 2681-657, enacted on October 21,1998;
• Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, Public Law 106-181, 114 Stat. 145, enacted on April 5, 2000;
• Section 6(a) of the Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129, Public Law 107-355, 116 Stat. 2989, enacted on December 17, 2002;
• Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002 (the Sarbanes-Oxley Act), 18 U.S.C. 1514A, Public Law 107-204, 116 Stat. 802, first enacted on July 30, 2002, and last amended by sec. 929A of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1848, 1852, enacted on July 21, 2010;
• Section 1413 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 6 U.S.C. 1142, Public Law 100-53, 121 Stat. 414, that amended the National Transit Systems Security Act on August 3, 2007; and
• Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 49 U.S.C. 20109, Public Law 100-53, 121 Stat. 444, that amended the Federal Railroad Safety Act on August 3, 2007.
Congress remains active in the area of whistleblower protection. On July 21, 2010, Congress created and expanded whistleblower protection for employees in the financial services industry under the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203. On October 15, 2010, it amended another employment protection program that includes the opportunity for a hearing before an administrative law judge at the OALJ.
The substantive program regulations the Department has published to implement many of the statutes that grant workers and employers formal hearings on claims of workplace retaliation offer limited guidance about the procedures those adjudications should follow. Regulations often incorporate instead the procedural rules of Part 18, Subpart A.
The growth in whistleblower jurisdiction has led OALJ to search for ways to manage those proceedings efficiently. Implementing procedures the federal district courts have developed or refined since 1983 will improve the current Part 18, Subpart A rules.
For example, several regulations that govern whistleblower claims explicitly grant the presiding judge “broad discretion to limit discovery” as a way to “expedite the hearing.” 29 CFR 1979.107(b), 1980.107(b), 1981.107(b). The Department's discussion when it published the final rules on Sarbanes-Oxley matters offered as an illustration that the judge may “limit the number of interrogatories, requests for production of documents or depositions allowed.” 69 FR 52104, 52110, Aug. 24, 2004. Other program regulations, such as those that govern disputes under the Energy Reorganization Act and six environmental statutes that cover whistleblowers in the nuclear and environmental industries published at 29 CFR part 24, incorporate the Part 18, Subpart A regulations without an explicit reference to a judge's authority to control discovery.
A 2010 study surveyed lawyers who were the attorneys of record in federal civil cases that terminated in the last quarter of 2008 about their satisfaction with the current FRCP. Lawyers from the Litigation Section of the American Bar Association and from the National Employment Lawyers Association were sampled too. The survey instrument had been developed jointly by the American
Updating the Part 18, Subpart A regulations has value beyond whistleblower litigation. Regulations for the Longshore and Harbor Workers' Compensation Act published at 20 CFR 702.331 through 702.351 predate Part 18, Subpart A. They sketch out only broad outlines of how hearings should proceed, so the parties and judges fall back on the Part 18, Subpart A rules in cases brought under the Longshore Act and its extensions. Workers, their employers, and insurance carriers also will profit from updated procedures that avoid the need to serve discovery to learn basic information, and allow more focused case management.
The Department believes that in many instances the current Part 18, Subpart A rules provide limited guidance. Judges have addressed the current rules' limitations by managing procedural matters through orders, often directing parties to follow aspects of the various updates to the FRCP. The consequent variety in approaches to case management has troubled some lawyers, especially those with nationwide client bases who routinely practice before different judges throughout the nation.
Lastly, the Department recognizes that the current Part 18, Subpart A rules can be stated more clearly, something the 2007 style amendments to the FRCP highlight. The style amendments were the first comprehensive overhaul since the FRCP were adopted in 1938. Taking more than four years to complete, they aspired to simplify and clarify federal procedure. The more austere sentence structure used throughout the restyled FRCP made them shorter, easier to read and more clearly articulated. The amendments proposed to Part 18, Subpart A emulate those improvements.
The Department's principal goals in revising Part 18, Subpart A were to:
• Bring the rules into closer alignment with the current FRCP;
• Revise the rules to aid the development of facts germane to additional sorts of adjudications the Department's judges handle;
• Enhance procedural uniformity, while allowing judges to manage cases flexibly, because (a) An administrative proceeding is meant to be less formal than a jury trial; (b) local trial practice in different regions of the country should be accommodated when doing so does not affect substantive rights; and (c) governing statutes and substantive regulations may impose their own specific procedural requirements; and
• Make the rules clearer and easier to understand through the use of consistent terminology, structure, and formatting.
The decisions and orders that judges enter to resolve cases under sec. 556 and 557 of the Administrative Procedure Act resemble findings of fact and conclusions of law federal district and magistrate judges enter in non-jury cases under Fed. R. Civ. P. 52. Matters proceed before OALJ much the way non-jury cases move through the federal courts.
Using language similar or identical to the applicable FRCP gains the advantage of the broad experience of the federal courts and the well-developed precedent they have created to guide litigants, judges, and reviewing authorities within the Department on procedure. Parties and judges obtain the additional advantage of focusing primarily on the substance of the administrative disputes, spending less time on the distraction of litigating about procedure.
Part 18, Subpart A currently provides that the “Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation.” 29 CFR 18.1(a). Experienced practitioners know to consult the FRCP for guidance in circumstances the current Part 18, Subpart A rules do not explicitly cover. Given the developments in the FRCP since 1983, parties and judges switch back and forth between two different sources of procedure (the Part 18, Subpart A rules and the FRCP). This is a less than ideal situation. The proposed revision continues the current practice of looking to the federal civil rules to resolve procedural questions that the revised Part 18, Subpart A rules do not explicitly cover, a principle that § 18.1(a) has embodied for over twenty-five years.
Pretrial procedures under the FRCP have significantly changed since Part 18, Subpart A was published in 1983. Some of the most significant changes have encompassed:
• The scope of pretrial discovery;
• How time is computed under the FRCP;
• The innovation of early mandatory disclosures about documentary proof and lay and expert witness testimony that were unknown to litigation practice in 1983, the related discovery plans the parties now negotiate, and the ongoing duty parties now bear to supplement their mandatory disclosures and discovery responses;
• Alterations to the rule on pretrial conferences to encourage judges to manage cases, and give them the tools to do so;
• Imposing presumptive limitations on aspects of discovery;
• Adding rules on the discovery of electronically stored information, a rare source of information in the early 1980's that has become ubiquitous today; and
• The procedure, but not the standard, for granting summary judgment under Fed. R. Civ. P. 56 that was substantially revised in 2010.
The 2007 style amendments to the FRCP in some instances altered the original numbering of provisions that first came into being after 1983. The current rule numbers from the 2010 edition of the FRCP are used in the following discussion of significant changes in litigation practice since 1983.
The scope of discovery has changed. The formulation used in current Part 18, Subpart A at § 18.14 extends discovery to “any matter, not privileged, which is relevant to the subject matter involved in the proceeding.” The FRCP now permits parties the somewhat narrower opportunity to learn about unprivileged matters “relevant to a party's claim or defense.” Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(b)(1); Jeffery W. Stemple & David F. Herr,
Litigation requires timely filings and actions. The way time is calculated under Fed. R. Civ. P. 6 changed in 2009. In the Department's view, the Part 18, Subpart A rules should be harmonized with the FRCP so parties and their lawyers use the simpler, clearer, and more consistent way federal courts now
Time periods in the FRCP shorter than 30 days also were revised to multiples of 7 days, to reduce the likelihood of ending on weekends. Other changes to the FRCP time-computation rules affect how to tell when the last day of a period ends, and how to compute backward-counted periods that end on a weekend or holiday.
The Department believes that the success the federal courts have had with requiring parties to exchange elementary information early in the dispute, without the need for a formal discovery demand, should be incorporated into OALJ's procedures for most cases. The same is true for the way the federal courts require parties to disclose the opinions of experts, and to supplement disclosures and discovery responses.
Disclosures of information relevant to the claims or defenses a party may raise in the litigation were required in the 1993 amendments to the FRCP.
The disclosure obligation was narrowed in 2000 to embrace only information the party would use to support its claims or defenses at a pretrial conference, to support a motion, to question a witness during a discovery deposition, or at trial. Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(a). These mandatory disclosures cover basic information needed to prepare most cases for trial or to make an informed decision about settlement. Advisory Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 26(a). They must be exchanged at the outset of the proceeding, even before the opponent issues any discovery request, and for the most part there is a moratorium on discovery until the automatic disclosures are made. Fed. R. Civ. P. 26(d)(1). Few excuses for failing to make timely disclosures are countenanced. Fed. R. Civ. P. 26(a)(1)(E). These prompt initial disclosures lead to an early conference where the parties discuss whether the case can be settled and negotiate a proposed discovery schedule they report to the judge. Fed. R. Civ. P. 26(f)(2).
Other amendments enhanced the pretrial disclosure of the opinions of an expert witness. A party now is required to:
• Provide a detailed written report, signed by an expert who is retained or specially employed to give expert testimony, under Fed. R. Civ. P. 26(a)(2)(B);
• Deliver the report before the expert is deposed, under Fed. R. Civ. P. 26(b)(4); and
• Prepare and serve a disclosure of the expert's testimony if the expert was not retained or specially employed to testify (and so not required to write and sign a report), under Fed. R. Civ. P. 26(a)(2)(C).
By signing and serving a required disclosure (or any discovery response), the lawyer attests that it is complete and correct; consistent with the rules; not interposed for an improper purpose; and not unreasonable nor unduly burdensome or expensive, given the needs and prior discovery in the case, the amount in controversy, and the importance of the issues at stake. Fed. R. Civ. P. 26(g).
A required disclosure that turns out to have been incomplete or incorrect in some material respect must be supplemented “in a timely manner.” Fed. R. Civ. P. 26(e). The duty to supplement extends to a required report or disclosure about expert witness testimony and to a discovery response.
The amendments to Fed. R. Civ. P. 16 made in 1993 enhanced a judge's authority to manage litigation with the goal of achieving the just, speedy, and inexpensive determination of a matter through the use of scheduling orders under Fed. R. Civ. P. 16(b) and pretrial conferences under Fed. R. Civ. P. 16(c). Those revisions to Fed. R. Civ. P. 16 expanded the judge's authority to “take appropriate action” in a civil case. Charles R. Ritchey,
A pretrial conference offers the opportunity to appropriately control the extent and timing of discovery. At a conference the parties and judge may consider ways to avoid unnecessary proof and cumulative evidence at trial (including expert testimony) under what is now Fed. R. Civ. P. 16(c)(2)(D). Determining whether a motion for summary adjudication is even appropriate, and setting the time to file it, may be discussed under Fed. R. Civ. P. 16(b)(3)(A), (c)(2)(E).
Discovery practice in federal court litigation has been altered since 1983 in a number of ways. The amendments were not meant to block needed discovery, but to provide judicial supervision to curtail excessive discovery. Advisory Committee Note to the 1993 Amendments to Fed. R. Civ. P. 33(a). The FRCP now presumptively limit the number of interrogatories a party may serve, including “all discrete subparts;” the number of depositions taken by oral examination or on written questions; taking the deposition of a
These presumptive limitations are adjusted as a case requires, often through the scheduling order the judge enters on the discovery plan the parties propose after their initial conference. Fed. R. Civ. P. 26(b)(2)(A), (f)(3)(E);
Parties also must seek to resolve discovery disputes informally before filing a motion. Fed. R. Civ. P. 26(c)(1);
E-discovery provisions that recognize how pervasive digital information has become were incorporated into the FRCP in 2006. Richard L. Marcus,
Digital information is so omnipresent that federal courts now deride as “frankly ludicrous” arguments that a trial lawyer who claims to be “computer illiterate” should be excused from fulfilling the rules' e-discovery obligations.
In addition, the parties should discuss and agree at the initial conference on how to handle inadvertent disclosure of digital information that otherwise would enjoy attorney-client privilege or work product protection. Fed. R. Civ. P. 26(f)(3)(D). Their agreement plays a pivotal role under recently enacted Fed. R. Evid. 502(b), (d), and (e). They avoid a waiver of privilege or work product protection when their agreement is incorporated into a scheduling order or another order.
The current FRCP not only guide the resolution of discovery disputes, but also set standards for allocating the potentially high cost of discovery among the parties when the sources of digital data are not readily accessible. Advisory Committee Notes to 2006 Amendments to Fed. R. Civ. P. 26(b)(2) (“The conditions [the judge imposes] may also include payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible.”)
A motion for summary adjudication carries the potential to dispose of an entire claim or portions of it with finality but without a trial, so it plays a key role in litigation. The procedure ought to be the same at the OALJ as in U.S. district courts; any divergence creates an incentive for a party to prefer the forum with the summary decision régime most favorable to its position. This matters because under many statutes whistleblower litigation begins at OALJ, but the complainant may proceed in U.S. district court if a final order has not been entered within a relatively short time after the claim is first brought to the attention of the Department.
Federal Rule of Civil Procedure 56 was recently revised effective December 1, 2010. It now instructs the judge to state a reason for granting or denying the motion, usually by identifying the central issues, which can help the parties focus any further proceedings. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(a). The judge is not obliged to search the record independently to determine whether there is a factual dispute for trial, but nonetheless may consider record materials the parties never called to the judge's attention. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(c)(3). A formal affidavit is not required to support the motion; an unsworn declaration signed under penalty of perjury suffices, recognizing the status 28 U.S.C. 1746 gives to those statements. Fed. R. Civ. P. 56(c)(4). Even if the motion is not granted, or granted only in part, the judge may find that certain facts are undisputed and treat them as established. Fed. R. Civ. P. 56(g). Invoking this authority demands care, however. To limit litigation expenses, a nonmovant who feels confident a genuine dispute as to one or a few facts will defeat the motion may choose not to file a detailed response to all facts the movant stated. That choice should not expose the party to the risk that the additional facts will be treated as established under subdivision (g). Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(h).
The judge may sanction a party who submits an affidavit or declaration with its motion papers in bad faith or solely for delay. Fed. R. Civ. P. 56(h).
Other portions of the FRCP have also undergone significant changes, including rules on the subjects of:
• Sanctions under Fed. R. Civ. P. 11 in 1993,
• Subpoenas under Fed. R. Civ. P. 45 in 1991,
The proposed revisions to Part 18, Subpart A reflect the general tenor of these amendments.
Congress has vested the Department (and therefore OALJ) with the responsibility to conduct formal hearings pursuant to more than 60 laws, including at least 19 that protect employees from retaliation for whistleblowing.
The bulk of hearings conducted by OALJ involve longshore workers' compensation and black lung benefits claims. This was true when OALJ's rules of practice were published in 1983 and is still true today.
Moreover, intensive litigation is typical in cases arising under the Defense Base Act. Although the Defense Base Act has been in existence since World War II, increasing use of contract services by the military and other parts of the federal government has resulted in significantly more hearings conducted by OALJ under that law in recent years. These cases tend not to settle, and therefore require more case management by judges as compared with other workers' compensation cases adjudicated by OALJ. OALJ also now conducts hearings involving labor condition applications of employers who employ H-1B nonimmigrant workers. OALJ's experience is that many of these cases do not settle; they also involve extensive procedural motions and multi-day hearings.
Thus, the change in the case mix before OALJ has heightened the need for procedural rules that are clearly written, permit improved and more consistent case management by judges, and are familiar to the national legal community under current federal court practice.
Notwithstanding the variety of statutes and regulations that generate disputes at OALJ, the provisions of the Administrative Procedure Act at 5 U.S.C. 556 offer broad guidance to administrative law judges about how to conduct proceedings. Flexibility in applying procedural rules is desirable, so that judges manage litigation according to the needs of an individual case. The Department's opportunity to review the decision of its administrative law judges under 5 U.S.C. 557(b) safeguards a party from an abuse of that discretion.
Some cases by their nature need special management. For example, applying a general rule that sets the time to respond to formal discovery demands may be inappropriate in a case that demands expedited handling. A striking illustration of an expedited proceeding is one to review a denial of an employer's application to the Office of Foreign Labor Certification under 20 CFR 655.103 to certify the use of non-immigrant workers in temporary agricultural employment under the H-2A visa program of the Immigration & Nationality Act, 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1188(e). In such cases, the employer only has five business days to seek review of an application's denial under 20 CFR 655.141(b)(4) and 655.142(c). Where the employer requests administrative review, the judge has only five business days after receipt of the administrative file from the Office of Foreign Labor Certification to render a decision. 20 CFR 655.171(a) (2011). Where the employer requests de novo review, the Part 18, Subpart A rules apply, but the hearing must be convened within five business days after the administrative law judge receives the administrative file, and the decision must follow within ten calendar days. 20 CFR 655.171(b). Additionally, for some types of cases—for example, those adjudicated under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901
The proposed rules have been drafted to authorize a judge to tailor procedures to the case, through a prehearing order. A judge may take a broad range of actions under proposed § 18.50(b)(2) and (3). Parties may be ordered to confer about settlement early in the case, required to make prehearing disclosures without any formal discovery demand from the other party, and directed to draft a discovery plan. Yet the judge also may relieve the parties from the obligation to make initial disclosures, and alter the general limitations on the number of interrogatories and the number and length of depositions. This flexibility permits a judge to address, in an individualized way, the needs of any specific case. The judge also may address any regional differences in litigation practices that may require direction or clarification.
The FRCP underwent a complete revision that culminated in 2007 to improve their style and clarity. Restyled Federal Rules of Appellate Procedure took effect in 1998, as the restyled Federal Rules of Criminal Procedure did in 2002. Sources that guided drafting, usage, and style for all three revisions included the
The drafting guidelines the authors of the 2007 style amendments used to
• Executive Order 12866 (1993), which requires that regulations be “simple and easy to understand, with the goal of minimizing uncertainty and litigation * * * ” 58 FR 51735, sec. 1(b)(12), Sept. 30, 1993 (amended 2002 & 2007); and
• Executive Order 12988 (1996), which requires that regulations be written in “clear language.” 61 FR 4729, sec. 3(b)(2) (Feb. 5, 1996).
The Plain Writing Act of 2010, 5 U.S.C. 301, Public Law 111-274, 124 Stat. 2861 (2010), while not directly applicable to regulations, recognizes the value of plain writing in government documents by requiring clear, concise, and well-organized publications. The Office of Management and Budget has published a “Best Practices Guide for Regulations” available on the internet.
Section 6(a) of Executive Order 13,563 (dated January 18, 2011), states: “To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” 76 FR at 3821. The Executive Order also requires each agency to prepare a plan for reviewing its regulations. Although the revision of Part 18, Subpart A began well before this recent Executive Order, the proposed revisions meet the Order's requirements, by replacing outmoded rules with a more-readily understandable version.
This proposed rule has been drafted and reviewed in accordance with Executive Order 12866. The Department of Labor, in coordination with the Office of Management and Budget (OMB), has determined that this proposed rule is not a “significant regulatory action” under Executive Order 12866, section 3(f) because rule because the rule will not have an annual effect on the economy of $100 million or more; nor create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; nor materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities or the principles set forth in this Executive Order. Accordingly, the proposed rule has not been reviewed by OMB.
The Department concludes that the Regulatory Flexibility Act, 5 U.S.C. 601
The Department has reviewed this rule in accordance with Executive Order 12291 and determined it is not a “major rule” under Executive Order 12291 because it is not likely to result in (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. Accordingly, no regulatory impact analysis is required.
The Department has reviewed this proposed rule in accordance with the requirements of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531
The Department certifies that this proposed rule has been assessed in accordance with the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501
The Department has reviewed the proposed rule in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
The Department has reviewed this proposed rule in accordance with the Privacy Act of 1974, as amended (5 U.S.C. 552a). This rulemaking would not require any new process, filing or collection of any new information in the proceedings before the Office of
The Department has reviewed this proposed rule in accordance with the requirements of the Federal Regulations and Policies on Families, Section 654 of the Treasury and General Government Appropriations Act of 1999. These proposed regulations were not found to have a potential negative effect on family well-being as it is defined there under.
The Department certifies that this proposed rule has been assessed regarding environmental health risks and safety risks that may disproportionately affect children. These proposed regulations were not found to have a potential negative effect on the health or safety of children.
The Department has reviewed this proposed rule in accordance with E.O. 12630 and has determined that it does not contain any “policies that have takings implications” in regard to the “licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property.”
The Department has reviewed this proposed rule in accordance with E.O. 13175 and has determined that it does not have “tribal implications.” The proposed rule does not “have substantial direct effects 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.”
This regulation has been drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform, and will not unduly burden the Federal court system. The regulation has been written so as to minimize litigation and provide a clear legal standard for affected conduct, and has been reviewed carefully to eliminate drafting errors and ambiguities.
The Department has reviewed this proposed regulation in accordance with Executive Order 13211 and determined that the proposed rule is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866, will not have a significant adverse effect on the supply, distribution, or use of energy, and has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.
The changes proposed here consist of amendments to rules of agency organization, procedure and practice, and consequently are exempt from the notice and public comment requirements of the Administrative Procedure Act,
Please be advised that the Department will post all comments without making any change to the comments, including any personal information provided. The
In addition to all comments received by the Department being accessible on
The Department proposes to remove the current § 18.1 and add § 18.10. The proposed § 18.10 is modeled after Fed. R. Civ. P. 1.
As in the current rule, the proposed rule states that in the event the procedures in Part 18, Subpart A are inconsistent with a governing statute, regulation, or executive order, the latter controls. The Department recognizes that specific procedural regulations have already been promulgated for some statutes under which administrative law judges adjudicate cases, and that these regulations may prescribe procedures inconsistent with these proposed rules. The Department has found that the phrase “rule of special application” has not clearly conveyed the intent of this sentence. Thus, proposed § 18.10 rephrases this sentence as follows: “To the extent that these rules may be inconsistent with a governing statute, regulation, or executive order, the latter controls. If a specific Department of Labor regulation governs a proceeding, the provisions of that regulation apply, and these rules apply to situations not addressed in the governing regulation.”
Subdivision (a) recognizes that some of the Department's regulations involving proceedings before OALJ include extremely detailed procedures and requirements. These rules do not address requirements that are specific to certain types of cases. For example, the regulations for Black Lung compensation benefits proceedings, at 20 CFR parts 718 and 725, include specific evidentiary limitations (
Additionally, the Department recognizes that the provisions of a specific regulation may be inconsistent with these rules. In such event, the specific regulation—and not these rules—applies. For example, in a case arising under the Black Lung Benefits Act, there is inconsistency between the regulation at proposed § 18.93,
The Department proposes to relocate the language from current § 18.26 to proposed § 18.10 because it is more properly located with the other general guiding principles. The Department proposes to clarify the meaning of
The current § 18.1(b)—renumbered as § 18.10(c)—is revised to improve the clarity of the rule. The Department does not propose changes to the judge's ability to waive, modify, or suspend the rules by these revisions.
The Department proposes to revise the current § 18.2 and renumber it as § 18.11. The definitions in § 18.2 supplement the definitions stated in sec. 551 of the Administrative Procedure Act. The Department proposes to amend the opening sentence of this section by referencing the definitions provided in sec. 551 of the Administrative Procedure Act. The definitions in sec. 551 apply to OALJ proceedings.
The Department proposes to delete the following terms from the current § 18.2: (a),
The Department proposes to define the following terms that are not defined by the APA: (a),
The Department proposes to amend the definitions of the following terms to improve clarity and specificity: (d),
The Department proposes to revise the definition of “order” and delete the reference in the current rule to rulemaking. The Part 18, Subpart A rules and these proposed revisions apply to the adjudication of cases and not rulemaking. This reference is therefore superfluous. The Department proposes to revise the definition of “proceeding” to avoid defining a term using the term itself; the proposed definition provides a more accurate definition, one that includes the creation of a record leading to an adjudication or order.
The Department proposes to revise the current §§ 18.25 and 18.29(a) and combine the content into proposed § 18.12.
The proposed § 18.12 is divided into two subdivisions: designation and authority. The Department proposes to relocate the content of current § 18.25 to proposed § 18.12(a). This section incorporates the revised definition of “judge” and “Chief Judge” from proposed § 18.11.
The Department proposes to relocate the content of current § 18.29(a) to proposed § 18.12(b). The enumerated powers of the judge in the proposed subdivision (b) are similar to those listed in sec. 556 of the APA (5. U.S.C. 556) and those listed in the current § 18.29(a), except for stylistic changes. For example, proposed subparagraphs (b)(4), (b)(5) and part of (b)(2) are taken directly from sec. 556. Under subdivision (b), the Department clarifies that OALJ may conduct hearings as determined by the Secretary of Labor when no statute entitles a person to an “on the record” hearing. The proposed subparagraph (b)(1) is meant to clarify the administrative law judge's powers to regulate both formal and informal proceedings, including setting prehearing conferences, and when appointed as a settlement judge, to conduct settlement conferences. The current § 18.29 (a)(1) only addresses formal hearings. The current § 18.29(a)(6) and (a)(9) has been deleted because these provisions are redundant of the proposed introductory statement.
The difference between paragraph (b)(3) and (b)(4) is that the former applies to parties to the cause of action whereas the later applies to non-parties. Under (b)(3) judges have the authority to grant motions to compel a party to respond to a request for the production of documents, requests for written responses to interrogatories, requests for admission, and attendance at a proceeding. Issuing subpoenas authorized by law is the only way a judge can exercise control over non-parties.
The Department proposes to delete current § 18.29(b), because its content is addressed in the applicable statutes (e.g., 33 U.S.C. 927(b)(Longshore and Harbor Workers' Compensation Act).
The Department proposes to revise the current § 18.9 and renumber it as proposed § 18.13.
There are three topics addressed in the current § 18.9: (1) Motions for consent findings and order; (2) approval of settlement agreements; and (3) the settlement judge procedure. Motions for approval of a settlement agreement and for a consent finding and order (current § 18.9 (a)-(d)) are now addressed in the proposed § 18.71,
Under proposed subdivision (c) the Department proposes to extend the number of days for the settlement proceeding from 30 to 60 days. Based on OALJ's experience related to Longshore and Harbor Worker's Compensation Act cases, 30 calendar days is not enough time to complete a settlement agreement. For example, parties may need more than 30 days in cases dealing with location issues, or Medicare set asides, or in international negotiations under the Defense Base Act.
The Department proposes to delete the cross-referencing clause in current subdivision (d) because it is inherent within the rule that a settlement judge's powers terminate immediately if settlement negotiations are terminated.
Under proposed subdivision (f) the Department proposes to provide the settlement judge the option of conducting the settlement conference in the manner he or she considers most appropriate, giving the settlement judge wider discretion over the mode of the settlement conference. The current § 18.9 requires the settlement judge to conduct the settlement conference by telephone, except in specific situations. The Department determined that telephone conferences have not been the most expedient way to conduct settlement conferences; therefore the proposed change expands the judge's authority to determine what process the parties want to use and to best utilize changing technology.
Under the proposed subdivision (g) the Department proposes to delete the language in current § 18.9(e)(8) regarding the inadmissibility of settlement statements and conduct because the confidentiality of dispute resolution communications is now extensively addressed by the Administrative Dispute Resolution Act.
The Department proposes to delete the current § 18.9(e)(9) because the requirements for a consent order or settlement agreement are generally covered by the governing statute or implementing regulation. This language is possibly misleading because it implies that all settlements must have the elements of consent findings. There are also additional requirements found in specific regulations.
The language from the current § 18.9(e)(10) is relocated to proposed subdivision (h). The Department is extending the period of time parties have to submit the required settlement documents to the presiding judge from 7 days to 14 days. This will allow parties additional time to draft the settlement documents and will decrease the number of requests for an extension of time.
The Department proposes to revise the current § 18.38 and renumber it as proposed § 18.14.
The Department proposes stylistic changes to the current § 18.38, specifically subdivision (a). The language in the proposed rule clarifies that the prohibition against ex parte communication applies to the parties, their representatives, and other interested persons, as well as the judge. The Department proposes to change “any person” to “interested persons” to be consisted with the Administrative Procedure Act.
The Department proposes to delete the description of ex parte communication; however, this change is not intended to change the definition of ex parte communication. The notification of procedural request requirement is now covered by proposed §§ 18.33,
The Department deleted the current subdivision (b),
The Department proposes to revise the current § 18.30 and renumber it as proposed § 18.15.
The Department proposes to change the title of this section to “Substitution of administrative law judge” to more accurately reflect the procedure provided by the rule—how a substitute judge is appointed when the presiding judge becomes unavailable.
The Department proposes a revision to the current subdivision (a) modeled after Fed. R. Civ. P. 63. The Department proposes to require the successor judge to certify that he or she is familiar with the record before continuing with the presentation of the evidence. Included in this subpart is a reference to proposed § 18.12, the section that defines the procedure for appointing a judge to a case.
Under the proposed subdivision (b), the Department proposes to codify the longstanding Department of Labor policy, based on
Finally, administrative need within OALJ routinely requires that cases be reassigned among judges prior to the submission of evidence, such as where a case is continued prior to a scheduled docket. The proposed § 18.15 does not affect those reassignments.
The Department proposes to revise the current § 18.31 and renumber it as proposed § 18.16. The proposed revisions are largely stylistic.
Under subdivision (a), the Department proposes to delete the current notice requirement; however, this is not a procedural change. Parties will be notified when a presiding judge has disqualified himself or herself in due course with the appointment of a new judge.
The current § 18.31 requires a motion to disqualify to be accompanied by a supporting affidavit. The Department proposes to clarify in § 18.16(b) that as an alternative or addition to a supporting affidavit a motion to disqualify may be accompanied by supporting declarations or other documents. A presiding judge who receives a motion to disqualify must rule on the motion in a written order that states the grounds for the ruling.
The Department proposes to delete the current subdivision (c), which provides that the Chief Judge will appoint a new presiding judge if a judge recuses himself or herself. This procedure is covered by the substitution provisions of proposed § 18.15 and, therefore, is superfluous here.
The Department proposes to revise the current § 18.35 and renumber it as proposed § 18.17. The Department proposes largely stylistic revisions to this section. The rule continues to be that OALJ does not appoint representatives or refer parties to representatives. In addition, the Department proposes to revise this section to expressly state that OALJ does not provide legal assistance to parties. The Department proposes to change the reference to “counsel” to “representative” because the former is too narrow and does not include non-attorney representatives.
The Department proposes to revise the current § 18.10 and renumber it as proposed § 18.20.
The Department proposes to delete the definition of “party” in the current subdivision (a) because this definition is provided in the APA.
The current § 18.10 includes provisions regarding how a party may intervene in a case. The Department proposes to delete subdivisions (b)-(d) because impleading and intervention are rare circumstances before OALJ. If circumstances require, then the parties or judge may refer to the Fed. R. Civ. P. 19,
The Department proposes to revise and combine the current §§ 18.34(a) and 18.39 into proposed § 18.21,
The Department proposes to relocate the content from the current § 18.34(a) to proposed § 18.21(a). This subpart states that a party has a right to appear and participate in a proceeding in person or through a representative. The enumeration of the rights currently included in § 18.34(a) is summarized by the words “appear and participate in the proceeding.” The current § 18.34(a) addresses the possible actions a party may take during the course of a proceeding as provided by the rules. The Department proposes to delete this language because these actions are covered by other sections within the Rules, most specifically within Title III: Filings, Title V: Discovery, and Title VIII: Hearings.
The proposed subdivisions (b) and (c) are based on the current § 18.39(a) and (b), respectively. The Department has removed the 10-day timeframe with the intention that the presiding judge will set an appropriate time for response.
The Department proposes to revise the current § 18.34 and renumber it as proposed § 18.22.
The Department proposes to narrow the scope of proposed § 18.22 so that it functions as a list of qualifications and duties for attorneys and non-attorney representatives who represent parties before OALJ. The content from the current subdivision (a) is not included in proposed § 18.22, as explained in the note to the proposed § 18.21,
The Department proposes not to include the content from current subdivisions (c) through (f) in proposed § 18.22 because the substantive rights of parties and subpoenaed witnesses are delineated by other regulations under Part 18, Subpart A.
The Department proposes to relocate the current subdivision (b) to subdivision (a),
The Department proposes to relocate the current subdivision (g) to proposed subdivision (b), Categories of representation; admission standard. Under proposed paragraph (b)(1), the Department defines the terms “attorney” and “attorney representative” under the proposed rules. The current § 18.34(g) uses the phrase “attorney at law” to describe whose appearance is governed by current subsections (g)(1) and (g)(2); however, the Department proposes to delete this phrase from the proposed rules because it is ambiguous. As in the current § 18.34, an attorney who is in good standing in his or her licensing jurisdiction may represent a party or subpoenaed witness. An attorney's own representation of good standing is sufficient proof thereof, unless otherwise directed by the judge. Under new subparagraph (b)(1)(B), an attorney who is not in good standing in his or her licensing jurisdiction will not be permitted to appear before OALJ unless that attorney establishes in writing why the failure to maintain good standing is not disqualifying.
The Department proposes to add a new provision under subparagraph, (b)(1)(C)
Under the proposed paragraph (b)(2), the Department clarifies that an individual who is not an attorney may represent a party or a subpoenaed witness upon the judge's approval. The Department proposes to clarify what information must be included in a written request to serve as a non-attorney representative and provides the standard the judge will use to determine whether the non-attorney representative has the qualifications or ability to render assistance. The judge may deny a person's request to serve as a non-attorney representative only after providing the party or subpoenaed witness with notice and an opportunity to be heard.
The Department proposes to add subdivisions (c),
The Department determined that a separate rule identifying the grounds and creating procedures for disqualification of a representative was appropriate. The proposed § 18.22,
The proposed § 18.23 deals with both the disqualification of lawyers from practicing before the Department because professional discipline has been imposed on them in other jurisdictions, and discipline the Department itself may impose on lawyers or other representatives who misbehave during administrative litigation.
Lawyers traditionally have been regulated under a state-centered regime of professional self-regulation, in which federal administrative agencies played no role. State supreme courts, the admitting and disciplinary authority for their states' lawyers, often delegate to the state bar association the regulatory task of writing advisory ethics opinions; they also rely heavily on the American Bar Association to develop model ethics
Administrative agencies may discipline lawyers who represent clients before them. Before the advent of the Administrative Procedure Act, the U.S. Supreme Court recognized that quasi-judicial agencies empowered to adopt rules of procedure could set admission requirements.
Congress later abolished nearly all agency requirements for admission to practice with the Agency Practice Act of 1965. 5 U.S.C. 500(b), first enacted in Public Law 89332, 79 Stat. 1281, later incorporated into the U.S. Code by Public Law 9083, 81 Stat. 195 (Sept. 11, 1967) (with minor stylistic changes).
According to the Reporter for the American Bar Association Special Committee on Evaluation of Ethical Standards, who drafted the Model Code of Professional Responsibility a generation ago, the ABA has long stated that its ethical standards apply to the conduct of lawyers before all adjudicatory entities. Michael P. Cox, Regulation of Attorneys Practicing Before Federal Agencies, 34 Case W. Res. L. Rev 173, 202 & n. 132 (1982). The ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983, and have been amended several times thereafter. They serve as models for the legal ethics rules of most states. The current ABA Model Code of Professional Conduct (2010) imposes many obligations on trial lawyers. Among them are duties to exhibit candor; to follow procedural rules; to deal fairly with opposing parties and their lawyers, including the obligation to turn over evidence in discovery and refrain from altering evidence; and to avoid disruptive behavior.
The Department proposes to divide § 18.23 into four subdivisions: (a),
A lawyer may also become disqualified under subparts (a)(1)(C) and (D), as reciprocal discipline when another jurisdiction finds the lawyer guilty of professional misconduct, or the lawyer consents to disbarment, suspension, or resigns while an investigation into allegations of misconduct is pending. Federal courts routinely enforce reciprocally any limitations on practice state courts have imposed, after satisfying themselves that those disciplinary proceedings met the substantive requirements the U.S. Supreme Court set nearly a century ago in
Lawyers who litigate before the Department are expected to adhere to the rules of conduct promulgated by the jurisdiction(s) where they are admitted to practice, which typically are founded on the American Bar Association's Model Rules of Professional Conduct. Contumacious behavior, the violation of the rules of practice the Department has adopted, or failure to follow the procedural dictates of a governing statute, program regulation or of a judge's order also opens the lawyer to discipline by the Department.
Under paragraph (a)(2), the Chief Judge must provide notice and an opportunity to be heard as to why the representative should not be disqualified from practice before the Office of Administrative Law Judges. The Chief Judge's determination must be based on the “reliable, probative and substantial evidence of record, including the notice and response.”
Under subdivision (b), the Department proposes the procedure for disciplinary proceedings initiated because of a representative's conduct before OALJ. The disciplinary procedure is structured so that the representative's conduct and defense will be reviewed by a presiding judge, who applies the APA's review standard of reliable, probative, and substantial evidence of record. The representative may appeal the presiding judge's decision to the Chief Judge who reviews the decision under the substantial evidence standard. The Chief Judge's decision is not subject to review within the Department of Labor. The proposed § 18.95,
Under subdivision (c), the Department proposes to provide notice that when an attorney representative is suspended or disqualified by OALJ, the Chief Judge will alert the attorney's licensing jurisdiction(s) and the National Lawyer Regulatory Data Bank by providing a copy of the decision and order. The National Lawyer Regulatory Data Bank is the national clearing house of
Under subdivision (d), the Department proposes the procedure a representative suspended or disqualified under this section must follow to request reinstatement to practice before OALJ.
The Department proposes to delete the current § 18.12 and replace it with proposed § 18.24.
The title of § 18.24 was drafted to emphasize that an amicus curiae may participate in a proceeding only by filing a brief. The final statement that an amicus curiae brief must be filed by the close of the hearing was added to provide a timeframe for filing. If an amicus curiae wishes to participate in the formal hearing, then the person or organization must petition the judge to participate as an intervenor.
The Department proposes to revise the current § 18.3 and renumber it as proposed § 18.30. The proposed § 18.30 is modeled after Fed. R. Civ. P. 5. In the current Part 18, Subpart A rules service and filing requirements are listed under several sections. The Department proposes to delete those references and have this section address all the general service and filing procedures.
Similar to Fed. R. Civ. P. 5, the Department proposes to restructure the current § 18.3 into two subparts: (a),
The Department proposes to incorporate the content from the current subdivision (d) into proposed subdivision (a) because the service process is the same for all papers, including complaints.
Under subdivision (a), the Department proposes to provide general guidance on how parties are served. The Department proposes to add a certificate of service requirement under subparagraph (a)(3). The current Part 18, Subpart A does not define a certificate of service, so including the definition in the service and filing section clarifies the requirements of certifying that a paper was served on another party. In the past, pro se parties before OALJ have failed to provide certificates of service, requiring judges to follow up with the other parties to the case to verify that a paper was served.
In order to distinguish between a clerk employed at a party's place of business and the OALJ clerk who receives documents for the Office, the Department proposes to amend item (a)(2)(B)(iv) and paragraph (b)(2) by adding the term “docket clerk.” Docket clerk is defined in proposed § 18.2,
Under proposed subdivision (b), the Department specifies the procedure for filing papers with OALJ. Under subparagraph (b)(1), parties are required to file within a reasonable time papers served on other parties or participants. However, like the current rule, parties are not required to file discovery documents, unless the judge orders or the party uses them in the proceeding. The required filing provision also extends to any required disclosures ordered by the judge under § 18.50,
The Department proposes to provide the procedure for filing by facsimile in proposed subparagraph (b)(3)(A)—currently subdivision (f). In recognition of OALJ's nationwide jurisdiction and circumstances requiring last-minute filings, the Department proposes to clarify that parties may file by facsimile only as directed or permitted by the judge.
The Department proposes to relocate the content from the current subdivisions (f)(6) and (g) to proposed subdivision (b) because theses subdivisions address those parts of the filing process.
The Department proposes to delete the current (f)(3) because paragraph (a)(3) will apply in all cases. The proposed section adds a specific mechanism by which the parties can establish that the fax was sent and received and puts the burden on the party to maintain the original document.
The Department proposes to delete the current (f)(7) to limit the use of fax submissions to times when ordered by the Judge.
Proceedings before OALJ are open to the public. The current Part 18, Subpart A does not include a privacy requirement that parties redact personal data identifiers from filings. OALJ has a policy statement encouraging such redaction, but the notice is advisory, not mandatory.
The 2007 revision of the FRCP included the addition of Fed. R. Civ. P. 5.2 in response to the E-Government Act of 2002, 44 U.S.C. 3501. The Advisory Committee Note addressing Fed. R. Civ. P. 5.2 states that the privacy and security concern addressed by this rule is the electronic availability of filed documents. The scope of Fed. R. Civ. P. 5.2 is limited to filings with the court, and extends to trial exhibits when they are filed with the court.
The Department proposes a privacy protection rule based on Fed. R. Civ. P. 5.2 which will serve two agency-specific purposes. Like Fed. R. Civ. P. 5.2, proposed § 18.31 will reach any electronic filings with OALJ. In addition, § 18.31 will clarify the job of the Freedom of Information Act officer who reviews files in the case of a FOIA request. As a result of the broader purpose of OALJ's privacy protection rule, the § 18.31 extends to filings and exhibits. The majority of personal information to be redacted by the FOIA officer is contained in the exhibits, not the filings.
The proposed subdivision (a) lists the personal data identifiers that parties must redact from filings submitted to OALJ, unless the judge orders otherwise. The Department also lists filings that are exempted from the redaction requirement under proposed subdivision (b). Under subdivision (b), OALJ has exempted the record of administrative proceedings and exhibits filed within the Department of Labor and submitted to OALJ.
Under subdivision (c), the Department proposes to provide parties with the option to file a reference list of redacted information. The term “redacted” is intended to govern a filing that is prepared with abbreviated or blocked-out identifiers in the first instance, as well as a filing in which a personal identifier is edited after its preparation.
Under subdivision (d), the Department proposes to allow a person to waive the protections of the rule as to that person's own personal
The proposed subdivision (d) provides that a judge may, for good cause, require more extensive protection of material than otherwise required by this section. The Department does not intend for this subdivision to affect the limitations on sealing that are otherwise applicable to the judge.
The Department proposes to delete the current § 18.4 and replace it with proposed § 18.32. The proposed § 18.32 is modeled after Fed. R. Civ. P. 6. References to service and filing in the current § 18.4 are now addressed in proposed § 18.30,
The Department proposes to increase the scope of the computation provisions in current § 18.4(a) to apply to time periods set out in “these rules, [the] judge's order, or in any statute, regulation, or executive order that does not specify a method for computing time.” The expanded scope creates consistency in cases that fall under statutes and regulations that do not have time computation provisions. The revisions do not supplant a computation scheme from another agency or rule.
Under proposed subdivision (a), the Department proposes to add the definitions of “last day,” “next day,” and “legal holiday.” The current subdivision (a) includes a sentence explaining the computation of time for periods less than 7 days. The Department proposes to delete this sentence from the proposed rule to be consistent with the Department's general revision to provide at least 14 days to respond or file.
Subdivision (b) provides the criteria judges will use when responding to a request for an extension of time. The Department proposes this subdivision to provide litigants with fair notice as to the applicable standard of review.
The Department proposes to delete the current § 18.4(c)(1) and (3), which permit the addition of 5 days for filing by mail and when a party is served by mail. Some litigants have found this time-calculation provision confusing. To replace these provisions, the Department proposes to add subdivision (c) to function like Fed. R. Civ. P. 6(d). Three days are added after particular types of service listed in proposed § 18.30(a)(2)(B)(iii) or (iv). The decrease in the number of days for responding is offset by the extension of time to respond from 10 days to 14 days. Days are no longer added to the date of filing when filing by mail. The Department proposes this change to make the practice before OALJ more uniform and consistent with the procedure in the district courts.
The Department proposes to revise current § 18.6 and renumber it as proposed § 18.33. Proposed § 18.33 is modeled after Fed. R. Civ. P. 7(b) and Fed. R. Civ. P. 43(c).
Under § 18.33, the Department proposes to clarify the filing requirements for motions and other papers and add the language from Fed. R. Civ. P. 7(b) to proposed § 18.33 (a) and (b). Under proposed subdivision (a) “[a] request for an order must be made by motion.” This applies to any requests made to a judge. A motion must: (1) Be in writing, unless made during a hearing; (2) state with particularity the grounds for seeking the order; (3) state the relief sought; and (4) unless the relief sought has been agreed to by all parties, be accompanied by affidavits, declarations, or other evidence, and (5) if required by subsection (C)(4), include a memorandum of the points and authorities supporting the movant's position.
The proposed subdivision (b) provides that “the rules governing captions and other matters of form apply to motions and other requests.”
Under subdivision (c), the Department proposes to add that written motions before a hearing must be served with supporting papers at least 21 days prior to hearing. A written motion served within 21 days before the hearing must state why the motion was not made earlier. The current version of this section does not set a timeframe for serving and filing motions prior to the hearing. The Department proposes to add this timeframe to provide judges sufficient time to rule on pre-hearing motions. This may narrow the issues for the hearing and save witness travel time and expenses. The exceptions to this regulation include: (A) When the motion may be heard ex parte; (B) when these rules or an appropriate statute, regulation, or executive order set a different time; or (C) when an order sets a different time.
The proposed subdivision (d) requires that a response to a motion be filed within 14 days after the motion is served. The Department proposes to increase the amount of time a party has to respond from the 10 days in the current version of the rule to 14 days. The change to 14 days comports with the general revision to set time periods based on multiples of 7.
Under paragraph (c)(3), the Department proposes to add the requirement that counsel for the moving party confer or attempt to confer with opposing counsel in a good faith effort to resolve the subject matter of the motion, except when a party is unrepresented or for particular types of motions listed under subparagraphs (c)(3)(A) through (c)(3)(C). This provision is consistent with the FRCP and the Department anticipates that this will reduce the number of motions by encouraging the parties to resolve issues amongst themselves. Paragraph (c)(4) clarifies that unless the motion is unopposed, the supporting papers for the motion must include affidavits, declarations or other proof to establish the factual basis for the relief. For a dispositive motion and a motion relating to discovery, a memorandum of points and authorities must also be submitted. A judge may direct the parties file additional documents in support of any motion.
The Department proposes to delete the language in current § 18.6(d) from this section and address motions to compel in §§ 18.35,
Cases may be reassigned to different judges based on the administrative needs of the Office of Administrative Law Judges. Therefore, the Department proposes to add subdivision (f) to address renewed or repeated motions made to a different judge than the judge who previously ruled on the motion.
The Department proposes to add a new § 18.34,
The current caption requirements are located under current § 18.3(e). Under proposed § 18.34, the Department clarifies that filed papers must begin with a caption that includes: (a) the parties' names, (b) a title that describes the paper's purpose, and (c) the docket number assigned by the Office of Administrative Law Judges. If the case number is an individual's Social Security number then only the last four digits may be used.
The Department proposes to add a new § 18.35 modeled after Fed. R. Civ. P. 11. This section establishes the standards attorneys and parties must meet when filing motions or other documents with OALJ. It also regulates the circumstances in which sanctions may be imposed if the standards of § 18.35 are not met.
Under subdivision (a), every written motion and other paper filed with OALJ must be dated and signed by a representative of record or by a party personally if the party is unrepresented. The paper must state the signer's address, telephone number, facsimile number and email address, if any. If a document subject to § 18.35 is not signed, the judge has the power to strike the document unless the proponent signs it promptly upon notification of the missing signature.
Under subdivision (b), the Department sets the standards that motions and other papers regulated by § 18.35 must meet. It also specifically provides that the standards are applicable to later advocacy of such documents, as well as to the initial submission of the documents.
The Department proposes to regulate who may be sanctioned for violations of § 18.35(b), as well as how the sanctions process may be initiated under subdivision (a). This subdivision also governs the extent and limitations of the judge's sanctioning power.
Sections 18.50 through 18.65, governing the discovery process, control the circumstances when sanctions may be imposed for inappropriate behavior in discovery. For that reason, § 18.35(d) clarifies that § 18.35(a), (b) and (c) have no applicability to discovery issues.
The Department proposes to revise the current § 18.5 and renumber it as proposed § 18.36.
Proceedings before the Office of Administrative Law Judges are rarely initiated by a complaint and answer. Accordingly, the Department proposes to delete subdivisions (a)-(d) in current § 18.5. However, a judge may still require the parties to file a complaint and answer in certain cases for the purpose of clarifying the issues in the proceeding.
Amendments and supplemental pleadings are an infrequent occurrence because proceedings are rarely initiated before OALJ with a complaint and answer. If amended or supplemental complaints and answers are required, then the judge may apply Fed. R. Civ. P. 15. Accordingly, current § 18.5(e) is deleted and the proposed § 18.36 provides the judge discretion to allow parties to amend and supplement their filings.
The Department proposes to revise the current § 18.27 and renumber it as proposed § 18.40.
The current subdivision (a) makes reference to notice of prehearing conferences. Notice of prehearing conferences is controlled by proposed § 18.44,
The current subdivision (b) addresses the judge's ability to change the date, time, or place for a hearing and the number of days notice required for a change. The Department determined that this provision is appropriately grouped with continuances, instead of with the notice of hearing requirements. The Department proposes to relocate a revised version of this subpart to proposed § 18.41(a),
The current subdivision (c)—now proposed subdivision (b)—is edited to not only address how the judge will determine the location for the hearing, but also the date and time of the hearing. This proposed subdivision also includes a consideration of the “necessity of the parties and witnesses in selecting the date, time and place of the hearing.” This requirement is expressed in sec. 554 of the APA and more accurately reflects the considerations a judge must make when determining the date, time, and place for the hearing.
The Department proposes to revise the current § 18.28 and renumber it as proposed § 18.41.
The Department proposes to clarify in this section when a judge may continue a hearing. This procedure in part is located under current § 18.27(b); however, the Department determined that the procedure of a judge continuing a case is more appropriately grouped in this continuance rule. Under § 18.41(a), the Department proposes to require that the judge provide reasonable notice to the parties of a change in date, time or place of the hearing. The proposed change permits the judge to inform the parties of the changes within a reasonable time based on the circumstances of the continuance. This flexibility permits the judge to adjust the hearing schedule as needed without having to comport with a 14-day notice requirement. However, the reasonable notice still protects a party's due process rights to have notice of the hearing.
The Department proposes to revise the current subdivision (b) to address a party's request to continue or change the place of a hearing. The current regulation requires a party to file a motion for a continuance at least 14 days before the date set for hearing. The Department proposes to eliminate the 14-day filing requirement. Instead, the proposed regulation requires that a party “promptly” file a motion after becoming aware of the circumstances supporting a continuance. If a party is immediately aware of the conflict upon receipt of the notice of hearing, the party should file a motion to continue at once.
Under subdivision (b), the Department proposes to permit a party to orally move to continue a hearing, but only in exceptional circumstances. The proposed § 18.33,
The final sentence of the current subdivision (b) addresses oral motions for a continuance at a calendar call or hearing. The Department proposes to
The Department proposes to add a regulation under § 18.41 (b)(2). Under this paragraph, a party may move to change the location of the hearing. This proposed provision permits the parties to inform the judge when a more suitable hearing location is available.
The Department proposes to delete the current § 18.42 and replace it with proposed § 18.42.
The Department proposes to delete the references to expedited proceedings that are required by statute or regulation in current subdivisions (a)-(d) and (f). Expedited hearings are controlled by the statute or regulation requiring the accelerated proceedings and do not require either party to file a motion requesting an expediting proceeding. The timing of the hearing and decision in cases expedited by statute or regulation is determined by the governing statute or law. For example, under 20 CFR 655.171(a),
The proposed § 18.33,
The Department proposes not to include the current subdivision (c) because service is addressed by proposed § 18.30,
The Department proposes to omit the provision in current subdivision (e) that provides for advanced pleading schedules, prehearing conferences, and hearings. The Department proposes to delete this regulation because setting the date for conferences is within the judge's general powers set forth in proposed §§ 18.44,
The Department proposes to delete the current § 18.11 and replace it with the proposed § 18.43. The proposed § 18.43 is modeled after Fed. R. Civ. P. 42,
The Department proposes to revise this section to more accurately reflect the practice before OALJ. The current § 18.11 describes the process of consolidating hearings, whereas the proposed § 18.43 addresses the judge's power to order consolidated and separate hearings. The proposed subdivision (a) clarifies that an administrative law judge may join for hearing any or all matters at issue in the proceedings or may issue any other order to avoid unnecessary cost or delay. The proposed subdivision (b) clarifies that for convenience, to avoid prejudice, or to expedite and economize, the judge may order a separate hearing on one or more issues.
The Department proposes to delete the current § 18.8 and replace it with proposed § 18.44. The proposed § 18.44 is modeled in part after Fed. R. Civ. P. 16.
The current § 18.8 states that the purpose of a prehearing conference is to “expedite” the proceedings. The Department proposes to expand the purpose for a prehearing conference in proposed subdivision (a) to include: establishing early and continuing control so that the case will not be protracted because of lack of management; discouraging wasteful prehearing activities; improving the quality of the hearing through more thorough preparation; and facilitating settlement. This revision more accurately reflects the purpose of prehearing conferences before OALJ.
The Department proposes subdivision (b) to provide guidance on the scheduling and notice of the prehearing conference. This procedure is currently located in § 18.8(a).
The Department proposes subdivision (c) to require parties to participate in the conference as directed by the judge. This requirement is currently located in § 18.8(a). In this subpart, the Department proposes to clarify that if a party is represented by an attorney or non-attorney representative, the representative must have authority to make stipulations and admissions and, to settle.
The Department proposes subdivision (d) to expand the current subparagraph (a)(2) to include additional matters for consideration that the judge can take action on during prehearing conferences. This revision is modeled after Fed. R. Civ. P. 16(c)(2) and accurately reflects the breadth of issues addressed in prehearing conferences before OALJ.
The Department proposes to combine the current subdivisions (b) and (c) into subdivision (e). Under this subdivision, the Department proposes to change the default by stating that judges may direct that the prehearing conference be recorded and transcribed. The current § 18.8 requires stenographic recording and transcription, unless otherwise directed by the judge. This change reflects the routine practice of unrecorded prehearing conferences. Typically there is no testimony taken during prehearing conferences so unrecorded conferences are more cost-efficient. In certain cases, such as those involving unrepresented parties, judges may continue to order recorded prehearing conferences.
The Department proposes to adopt a new section to govern discovery and disclosure, incorporating portions of Fed. R. Civ. P. 26 not already addressed by specific Part 18, Subpart A regulations. The current Part18A provides limited guidance regarding discovery and disclosure. The Department, therefore, is establishing better guidance in proposed § 18.50. The proposed subdivisions (a), (c), and (d) apply to all cases, except as specified, while subdivision (b) is invoked by a judge's order.
Under subdivision (a), a party may seek discovery at any time after a judge issues an initial notice or order. The rule creates a possibility that a party may seek discovery prior to the judge issuing an order requiring the parties to confer under § 18.50(b). Instead of providing for that situation in this section, the Department anticipates that the judge's initial notice or order would address discovery sought before the conference, or that a party may file an appropriate motion requesting relief or instruction.
Unless, on motion, the judge orders otherwise for the parties' and witnesses' convenience and in the interests of
Under subdivision (b), a judge may order parties to confer and develop a proposed discovery plan, to be submitted in writing, addressing the discovery schedule and any modifications to the limits or scope of discovery. The discovery plan should indicate the parties' positions or proposals concerning: Automatic discovery; discovery scope and schedule; electronic information; privilege issues; discovery limits; and other discovery orders. Section 18.50(b) places a joint obligation on the representatives (and on unrepresented parties) to schedule the discovery conference and to attempt in good faith to agree on a proposed discovery plan and a report outlining the plan.
The results of the discovery conference may be reported to the judge using Form 52 of the Appendix of Forms that is incorporated into the FRCP through Fed. R. Civ. P. 84. The judge uses that information to craft a scheduling order that controls the development of the case.
Under subdivision (c), parties are required to disclose certain information automatically, without the need for discovery requests, at two points during the litigation. First, at the commencement of a proceeding before OALJ, each party must automatically provide to the other parties the identity of individuals (including experts) likely to have discoverable information, a description of documents by category and location, and a computation of each category of damages. Under proposed subparagraph (c)(1)(B), five categories of proceedings are excluded from this initial disclosure, because in these proceedings discovery is generally not applicable, or is limited due to the nature of the proceeding. Second, later in the case litigants must serve written reports of experts they retained to testify; an expert not retained or specially employed to provide expert testimony—a treating physician often falls into this category—need not write a report, but the party must serve an equivalent disclosure about that expert's opinions and their bases.
Under proposed subparagraph (c)(1)(C), representatives of the Department's Office of Workers' Compensation Programs are exempted from the requirement to provide initial disclosure, except under specified circumstances. Under the governing regulation for Black Lung cases, the District Director is required to provide a complete copy of the administrative record to all parties. 20 CFR 725.421(b). In Longshore cases, the District Director provides a copy of the pre-hearing statements to the Office of Administrative Law Judges, but under the regulation is prohibited from transmitting the administrative record. 20 CFR 702.319. The proposed subparagraph also recognizes that under certain situations the Department's representative actively litigates (e.g., when representing the Black Lung Disability Trust Fund in a case in which no responsible operator has been identified,
Expert opinions ultimately are disclosed in one of two ways. Each witness retained to provide expert testimony must produce a report. Each expert report must be in writing, signed by the expert, and must contain the specific information listed under subparagraph (c)(2)(B). Under subparagraph (c)(2)(A), judges have the discretion to set the time for this disclosure by prehearing order. For witnesses who are not required to provide a written report, under subparagraph (c)(2)(C) a party must state the subject matter on which the witness is expected to present expert opinion evidence and provide a summary of the facts and opinions to which the witness is expected to testify. For example, under 20 CFR 725.414(c) in Black Lung cases an expert may testify in lieu of a report and is not required to submit a written report. Such expert witnesses in Black Lung cases are commonly treating physicians who do not prepare written expert reports in the course of business. This provision drawn from Fed. R. Civ. P. 26(a)(2)(C) provides the mechanism to get the equivalent information. Under subparagraph (c)(2)(D), parties must supplement expert disclosures when required under proposed § 18.53,
Under paragraph (c)(3), in addition to required disclosures, a party must provide to the other parties and promptly file the prehearing disclosures described in proposed § 18.80,
Under paragraph (c)(4) unless the judge orders otherwise, all disclosures under this section must be in writing, signed, and served.
Under subdivision (d), every disclosure under § 18.50(c) and every discovery request, response, or objection must be signed by at least one of the party's representatives in the representative's own name, or by the party personally if unrepresented. The document must also contain the signer's address and telephone number. The signature constitutes a certification that the document is complete and correct to the best of the signer's knowledge, information, and belief, and it is being served for proper purposes within the rules. Under paragraph (d)(2), parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed and the judge must strike it unless a signature is promptly supplied after the omission is called to the representative's or party's attention. If a certification violates this regulation without substantial justification, judges have the authority to impose an appropriate sanction, either on motion or on his or her own, under paragraph (d)(3).
The Department proposes to delete the current § 18.14 and replace it with proposed § 18.51. The proposed § 18.51 is modeled after Fed. R. Civ. P. 26(b),
The Department proposes to revise the scope of discovery in current § 18.14(a) based on a 2000 amendment to Fed. R. Civ. P. 26(b)(1) which narrowed the scope of discovery. The current subdivision (a) permits parties to seek “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding * * *” In the proposed § 18.51, the parties are instructed to confine requests to “any nonprivileged matter that is relevant to any party's claim or defense * * *” The Department proposes to incorporate this amendment to control discovery costs without interfering with the fair resolution of the case. The parties are permitted to seek discovery related to the claims or defenses and, if needed, the judge may permit a party to seek discovery of any matter related to the case's subject matter.
The Department proposes to relocate the limitations in current § 18.14(b) regarding objections to discovery to the third sentence of proposed § 18.51(a). The Department proposes to clarify that a party may seek discovery of relevant information, even if the information would not be admissible at the hearing, as long as the discovery “appears
In § 18.51(b), the Department proposes additional limitations on the frequency and extent of discovery not contained in the current § 18.14. The limitations imposed by the current § 18.14 are limited to relevant information and information that is protected by a privilege. The Department proposes limitations on discovery that are designed to control the costs and burdens of discovery, as appropriate.
The Department proposes to provide limitations on the frequency of using discovery tools in §§ 18.64,
The Department proposes paragraph (b)(2) to limit the discovery of electronically stored information (ESI). The existing Part 18, Subpart A rules, promulgated in 1983, do not mention ESI; the proposed changes governing ESI reflect the contemporary nature of document management and discovery methods. In order to control the costs and burdens of producing documents, proposed paragraph (b)(2) establishes a requirement that a party need not provide discovery of ESI if the information is not reasonably accessible because of undue burden or cost. If the party requesting the information files a motion to compel or the party holding the information seeks a protective order, the judge must consider the items in proposed paragraph (b)(4).
Under paragraph (b)(3), the Department states that by requesting electronically stored information, a party consents to the application of Federal Rule of Evidence 502 with regard to inadvertently disclosed privileged or protected information. Because there is currently no equivalent to Fed. R. Evid. 502 in OALJ's rules of evidence, 29 CFR part 18, subpart B, the Department proposes this regulation to inform parties that Fed. R. Evid. 502 is applicable to inadvertently disclosed privileged or protected ESI.
The factors a judge must consider when determining whether to limit the frequency or extent of discovery under proposed paragraph (b)(4) involve balancing the need for the information and the costs and burdens of producing the information. The limitations in paragraph (b)(4) apply to all motions to limit the frequency and extent of discovery under subdivision (b).
The Department proposes subdivisions (c) and (d) to elaborate the limitations on discovery of hearing preparation materials and experts, respectively. The proposed subdivision (c) contains the same limitations as the current § 18.14(c). A party may not discover documents and tangible things prepared in anticipation of litigation or the hearing unless the information is discoverable as relevant under subdivision (a) and the party requesting the information can show that there is a substantial need for the information and the party cannot obtain substantially equivalent information without undue hardship. Although enumerated differently in proposed subdivision (c), the requirements remain the same. Like the current subdivision (c), proposed paragraph (c)(2) instructs the judge to protect against disclosure of an attorney's or other representative's mental impressions, conclusion, opinions, or legal theories when ordering the production of hearing preparation material.
Proposed paragraph (c)(3) permits a party or witness access to the person's own previous statement by request. A party or witness may have provided a statement prior to retaining legal counsel or understanding the consequences of the statement regarding the subject matter of the litigation. The party or witness may obtain a copy of the statement by request without making an additional showing.
Proposed subdivision (d) is modeled after Fed. R. Civ. P. 26(b)(4) and addresses requests for hearing preparation information prepared by experts who may testify at the hearing. Effective cross-examination of an expert requires advance preparation and effective rebuttal requires knowledge of the line of testimony of the other side. This regulation helps the parties narrow the issues and eliminates surprises through prehearing disclosure of expert opinions.
As is the current practice before OALJ, proposed paragraph (d)(1) provides that a party may depose an expert whose opinions may be presented at the hearing. The proposed subpart is modeled after Fed. R. Civ. P. 26(b)(4)(A), which requires the expert's report to be provided prior to the deposition. However, the exchange of a physician's report prior to the deposition has not been a common practice before OALJ, mostly based on time constraints of the testifying experts. Paragraph (d)(1), therefore, permits the parties to stipulate to taking a deposition before reviewing the expert's report and then produce the report when it is available.
Proposed paragraph (d)(2) applies if a judge orders the parties to exchange required disclosures under proposed § 18.50(c)(2)(B). If the judge orders the disclosure of expert opinions under § 18.50(c)(2)(B), then § 18.51(d)(1) provides that the protections in paragraphs (c)(1) and(c)(2) will apply.
Proposed subdivision (e) creates a procedure a party must follow to claim a privilege or to protect hearing preparation materials. Paragraph (e)(1) explains that a party must expressly claim a privilege or state that the information is subject to hearing preparation protection and describe the material well enough that the opponent can adequately assess the protection claim.
Proposed paragraph (e)(2) provides the steps a party must take if it wishes to claim a privilege or other protection for discovery already produced. This regulation is modeled after Fed. R. Civ. P. 26(b)(5)(B). The proposed subpart provides for
The Department proposes to delete the current § 18.15 and replace it with proposed § 18.52. The proposed § 18.52 is modeled after Fed. R. Civ. P. 26(c),
Similar to the current § 18.15, the Department proposes § 18.52(a) to provide that a party, or any person from whom discovery is sought, may file a motion for a protective order to protect the party from annoyance, embarrassment, oppression, or undue burden or expense. The motion can only be brought by the individual whose interests are affected. Normally, the motion must be filed before the discovery is to occur, unless there is no opportunity to do so. The proposed regulation requires that the motion include a certification that the movant conferred or attempted to confer with the other affected parties to resolve the dispute before filing the motion. This requirement encourages the parties to work together to resolve discovery disputes, without involving the judge.
The Department continues to require that the judge find good cause for issuing a protective order regarding the discovery sought. The judge has broad discretion in determining what constitutes good cause. Proposed paragraphs (a)(1) through (8) provide examples of orders the judge may enter. The proposed paragraphs (a)(1) through (5) provide the same remedies as the current paragraphs (a)(1) through (5); however, each paragraph is revised for
The Department proposes to clarify under subdivision (b) that when a judge denies a motion for a protective order in whole or in part, the judge may order that the party or person provide or permit discovery. This provision clarifies the control the judge exercises in resolving discovery disputes, as there is currently no regulatory guidance on this issue.
The Department proposes to delete the current § 18.16 and replace it with proposed § 18.53. The proposed § 18.53 is modeled after Fed. R. Civ. P. 26(e),
The Department proposes to delete the current § 18.17 and replace it with proposed § 18.54. The proposed § 18.54 is modeled after Fed. R. Civ. P. 29,
The revision improves the clarity of the section while retaining the same procedural requirements. The Department proposes to clarify in subdivision (b) that “a stipulation extending the time for any form of discovery must have the judge's approval if it would interfere with the time set for completing discovery, for hearing a motion, or for a hearing.”
The Department proposes to delete the current § 18.23 and replace it with the proposed § 18.55. The proposed § 18.55 is modeled after Fed. R. Civ. P. 32.
The Department states a new procedure in proposed § 18.55(a) modeled after Fed. R. Civ. P. 32(a)(5),
The Department proposes to add subdivision (c) to clarify that a party must provide a transcript of any deposition testimony the party offers. The judge may receive testimony in non-transcript form as well. This addition codifies a current common procedure within OALJ.
The Department proposes to add subdivision (d),
Third, under subparagraph (d)(3)(C),
Lastly, the Department proposes to add paragraph (d)(4),
The Department proposes to delete the current subdivision (c) because it does not align with the federal rule and is substantive rather than procedural.
The Department proposes to delete the current § 18.24 and replace it with proposed § 18.56. The proposed § 18.56 is modeled after Fed. R. Civ. P 45,
The Department proposes to add form and content requirements for subpoenas under paragraph (a)(2). Under this new provision, every subpoena must state the title of the matter and, where applicable, show the case number assigned by OALJ or the Office of Worker's Compensation Programs (OWCP). In the event that the case number is an individual's Social Security number only the last four numbers may be used.
The Department proposes to add the following provisions under paragraph (a)(2). The proposed subparagraph (a)(2)(B) provides that a subpoena commanding attendance at a deposition must state the method for recording the testimony. The proposed subparagraph (a)(2)(C) provides that a command to produce documents or to inspect premises may be issued separately or joined with a command to appear to testify. Under subparagraph (a)(2)(D), the Department proposes to clarify that a subpoena can be used to obtain inspections, testing or samplings of the property, documents, or electronic data of a non-party.
Under paragraph (a)(3), the Department proposes to permit subpoenas to be issued by an attorney representative only when authorized by the presiding judge. This provision applies only to representatives who are attorneys. In the authorizing document, the presiding judge may limit the parameters under which the authorized attorney may issue subpoenas.
Under subdivision (b), the Department proposes to clarify the process of serving subpoenas. Under paragraph (b)(1), if the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before the formal hearing, then before it is served, a notice must be served on each party. The purpose of such notice is to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents or things. In current practice, this notice requirement from Fed. R. Civ. P. 45(b)(1) is stated on subpoenas to produce documents, information or objects, or to permit inspection of premises. Additionally, the proposed § 18.56(b)(1) retains the provision in the current § 18.24(a) which allows parties to serve subpoenas by certified mail.
Under paragraph (b)(1), if the subpoena requires a person's attendance, the fees for 1 day's attendance and the mileage allowed by law must be tendered with the subpoena. This is a procedural change as the current § 18.24(a) requires that fees to be paid “in advance of the date of the proceeding.”
Under paragraph (b)(2), the Department clarifies that subject to proposed § 18.56(c)(3)(A)(ii), a subpoena may be served at any place within a State, Commonwealth, or Territory of the United States, or the District of Columbia. Paragraph (b)(3) provides that 28 U.S.C. 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country. Under paragraph (b)(4), if necessary, service can be proved by the person making service by filing with the judge a statement showing the date and manner of service and the names of the persons served. This statement must be certified by the server. This regulation does not establish any cutoff or deadline for serving subpoenas. However, a subpoena for a deposition or for the production of documents may be governed by the discovery deadline.
The Department proposes to delete the current § 18.24(b) because under the proposed paragraph (c)(3) the presiding judge, rather than the chief judge, has the power to quash or modify a subpoena if it fails to allow a reasonable time to comply.
The Department proposes to expand the current subdivision (c) to include other provisions that protect a person subject to a subpoena. The core concept of the proposed subdivision is that an attorney or representative responsible for requesting, issuing, or serving a subpoena has a duty not to issue a subpoena for improper purposes or to impose undue burden on the recipient of the subpoena. The proposed subdivision (c) continues to provide the mechanisms for recipients of subpoenas to challenge subpoenas. The cautionary language in § 18.56(c)
The Department proposes to clarify under paragraph (c)(1) that a party or representative responsible for requesting, issuing, or serving a subpoena must take reasonable steps to avoid imposing undue burden on a person subject to the subpoena. The judge must enforce this duty and may impose an appropriate sanction.
Under subparagraph (c)(2)(A), the Department proposes a new regulation that a person subpoenaed to produce documents or things or to permit an inspection need not actually appear at the designated time, as long as the person complies with the subpoena, unless also commanded to appear for the deposition or hearing. A person subpoenaed to produce documents or things or to permit an inspection may serve an objection to all or part of the subpoena within 14 days after service of the subpoena (or before the time designated in the subpoena, if sooner).
Once an objection has been served on the party issuing the subpoena, the subpoena recipient is not obligated to comply with the subpoena. Failure to serve timely objections may constitute a waiver of objections to the subpoena other than objections relating to service. Only non-parties may serve objections; parties must contest a subpoena by a motion to quash or modify. If the subpoena recipient timely serves an objection to the subpoena under § 18.56(c)(2)(B), the serving party may file a motion to compel production or inspection under § 18.56(c)(2)(B)(i). This motion must be served on the subpoena recipient as well. Under § 18.56(c)(2)(B)(ii), the presiding judge may issue an order compelling the subpoena recipient to comply with the subpoena but the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
Under the proposed § 18.56, a subpoena recipient may still move to quash a subpoena under paragraph (c)(3). If the judge finds the subpoena objectionable he or she may quash it altogether or modify it to cure the objection. The Department proposes to delete the 10-day time period for filing and answering a motion and instead use Fed. R. Civ. P. 45(c)(3) as a model. Thus, under the proposed § 18.56 a motion to quash must be “timely” filed, and should certainly be filed before the subpoena's return date. Failure to file a motion to quash may constitute a waiver of objections to the subpoena. In subparagraph (c)(3)(A) the Department proposes to list situations in which a subpoena will be quashed or modified. These situations include: (i) Failing to allow a reasonable time to reply; (ii) requiring a non-party to travel too far; (iii) requiring disclosure of privileged or protected information; and (iv) subjecting a person to undue burden.
Under subparagraph (c)(3)(B), the Department proposes to list circumstances in which a subpoena will be quashed or modified unless the serving party shows a “substantial need” for the testimony, documents, or inspection. In such cases the judge will condition compliance on the serving party compensating the recipient. This subparagraph provides limited protection for trade secrets or other confidential research, development, or commercial information. It provides limited protection for unretained experts, so that parties cannot obtain their testimony without paying their fees. It also provides limited protection to nonparties who would incur substantial expenses to travel more than 100 miles to attend a hearing.
The Department proposes to add a new regulation under subdivision (d)—the current subdivision (d) is relocated to subdivision (e)—that provides that documents may be produced as they are normally kept or may be separated and
The Department proposes that the scope of production under a subpoena be the same as the scope of discovery generally under proposed § 18.51,
Under subparagraph (d)(1)(B), the Department proposes to allow, but not require, the requesting party to specify the form in which it is requesting electronic data (i.e., hard copy or electronic; if electronic, the precise manner of production). If the requesting party does not specify the form, then the responding person must produce it in the form in which it is ordinarily maintained in or in a form that is reasonably usable. In any event, under proposed subparagraph (d)(1)(C) a party need not produce electronic data in more than one form.
Under subparagraph (d)(1)(D), the Department proposes that if the responding party believes that the production of electronic data from certain sources will cause undue burden or cost, the person can, in lieu of producing the documents, identify those sources. If a motion to compel or quash is filed, the responding party will have the burden of showing that production would cause undue burden or cost. The burden then shifts to the requesting party to show good cause why the data should be produced nonetheless. In such cases, the judge may specify conditions for the production.
Under paragraph (d)(2), the Department proposes that when a subpoena recipient seeks to withhold information that is privileged, the recipient must expressly claim the privilege and describe the nature of the documents, communications, or tangible things not produced in sufficient detail that the court and parties can assess the privilege. Under subparagraph (d)(2)(B), the Department proposes to establish a procedure to recall privileged information that has already been produced in response to a subpoena.
The Department proposes to relocate the content from the current subdivision (d) to subdivision (e) with no procedural changes.
The Department proposes to delete the current § 18.21 and replace it with proposed § 18.57. The proposed § 18.57 is modeled after Fed. R. Civ. P. 37 and incorporates the current § 18.6(d) and the current § 18.15(a).
The proposed § 18.57 provides the mechanisms for enforcing the provisions of the other discovery rules by imposing sanctions on parties who violate the discovery regulations. In general, sanctions are imposed in a two-step process in which a party must first obtain an order compelling discovery under proposed § 18.57(a), and then move for sanctions under proposed § 18.57(b). If, however, the responding party totally fails to respond to an entire discovery request, the sanctions may be available immediately. The Department proposes to grant judges greater discretion when imposing sanctions.
Under subdivision (a), the Department proposes to combine and expand the regulations under current §§ 18.6(d) and 18.21(a), and 18.15(a). This subdivision covers motions to compel discovery and motions to compel disclosure. A party may file a motion to compel under § 18.57(a)(2) after the opponent fails to make the automatic disclosures required by § 18.50(c), fails to respond to discovery served pursuant to the discovery rules, or makes an improper or incomplete disclosure or discovery response. When taking a deposition, the party asking a question may complete or adjourn the examination before moving for an order. Under proposed subdivision (a)(1), the motion to compel must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with the other party or person in an effort to resolve the dispute without the action of the judge. This is a procedural change proposed by the Department to encourage litigants to resolve matters amongst themselves and to help reduce litigation expenses. In current practice, many judges encourage parties to confer before filing certain motions.
The Department proposes to expand current § 18.21(c) to apply to evasive or incomplete disclosures in proposed § 18.57(a)(3). As under the current § 18.21(d), if the motion to compel is denied the judge may issue any protective order authorized under proposed § 18.52.
The Department proposes to add § 18.57(b), which sets forth the sanctions that become available if a party or deponent fails to obey a judge's order regarding discovery. Under this provision, a judge has the discretion to impose one or more of the listed sanctions or any other procedural sanction deemed appropriate, including: deeming facts established; prohibiting evidence; striking pleadings; and issuing a stay, dispositive ruling, or default judgment. The judge is not limited to the sanctions listed under § 18.57(b)(1) and may make any order that is “just.”
Under proposed § 18.57(b)(2), if a party fails to comply with an order under § 18.62 to produce another for a mental or physical examination, the party is subject to the same sanctions under § 18.57(b)(1) that would apply if the party failed to appear, unless the party can show that the party was unable to produce the individual.
The Department proposes to add § 18.57(c),
The sanctions under this provision apply to an improper statement of inability to admit or deny, as well as to improper denial. The sanctions in this subdivision do not apply to failure to respond to a request for admissions because such a failure is deemed an admission.
The Department proposes to add § 18.57(d),
The proposed subparagraph (d)(1)(B) states that a motion for sanctions under § 18.57(d), for failure to respond to interrogatories or requests for inspection, must include a certification that the movant has in good faith conferred or attempted to confer with the other party or person in an effort to obtain a response without court action. Note that this requirement does not apply to the failure to appear for a deposition.
The proposed paragraph (d)(2) states that a failure described in § 18.57(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under § 18.52(a). Under proposed paragraph (d)(3), sanctions may include any of the orders listed in § 18.57(b)(1).
The Department proposes to add subdivision (e) to prohibit the imposition of sanctions for failure to produce certain types of electronically stored information, in the absence of exceptional circumstances. The Department recognizes that certain types of electronically stored information are lost during the regular operation of a computer system and therefore parties should not be sanctioned for failing to produce such data. An example of the type of data that is contemplated by this provision is the metadata (or data about data) that computers automatically store, such as the last time a document was opened. Each time the document is opened the information that was stored in that field is deleted and replaced by new data. A party would not likely be sanctioned for the loss of the data when a document was last opened.
The protections in proposed § 18.57(e) are expressly limited to the good-faith operation of the computer system. Thus, a party cannot exploit the protections of this subdivision to deliberately delete relevant information. Under certain circumstances, a party wishing to require another party to preserve electronic data can write a letter to the party placing it on notice that the electronic data may be relevant and should be preserved, or can seek a preservation order from the judge. If either action is taken, a party must suspend those features of its computer system that result in the routine loss of information.
The Department proposes subdivision (f) to provide the procedure a judge must follow in impose sanctions under this section. A judge may impose sanctions under this section upon (1) a separately filed motion; or (2) notice from the judge followed by a reasonable opportunity to be heard.
The Department proposes to include the content from the current § 18.21(d) in the proposed § 18.33(a).
The Department proposes to revise the current § 18.18 and renumber it as proposed § 18.60. The proposed § 18.60 is modeled after Fed. R. Civ. P. 33 and should be read in conjunction with proposed § 18.51, which establishes the scope of all discovery rules.
The Department proposes to change the current subdivision (a) to state that unless otherwise stipulated or ordered by the judge, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with proposed § 18.51. The Department proposes this change to model Fed. R. Civ. P. 33 as the current § 18.18 does not set a limit on the number of written interrogatories a party may serve on another party.
The procedure for answering interrogatories is relocated from the current subdivision (a) to proposed subdivision (b). The Department proposes to delete the service and filing language from this section because the Department is proposing § 18.30,
The Department proposes to relocate the current subdivision (c) to proposed § 18.60(a)(2),
The Department proposes subdivision (b),
Failure to serve a response in a timely manner may constitute a waiver of all objections. Under subdivision (b) the Department clarifies that the time period to answer may be shortened or extended by written agreement under proposed § 18.54,
The Department proposes to add a new subdivision (c) which provides that an answer to an interrogatory may be used to the extent allowed by the applicable rules of evidence. This reflects the varying evidentiary requirements applicable to claims brought before OALJ. Interrogatory answers are not admissions, but generally may be used as though made in court by the party. Interrogatories may not be used to obtain documents. Rather, a document request must be made under proposed § 18.61,
The Department proposes to add a new subdivision (d),
The Department proposes to revise the current § 18.19 and renumber it as proposed § 18.61. The proposed § 18.61 is modeled after Fed. R. Civ. P. 34,
The Department is proposing a separate section, § 18.62, for physical and mental examinations; therefore, the language regarding physical and mental examinations is not included in this proposed section. The purpose of proposed § 18.61 is to set forth the procedures for obtaining access to documents and things within the control of other parties, and for gaining entry upon other parties' land for inspection. This proposed section should be read in conjunction with proposed § 18.51, which establishes the scope of all discovery rules.
The proposed subdivision (a), like the current subdivision (a), generally addresses the scope of document requests. This subpart states that a party may serve on any party a request within the scope of § 18.51. Generally, any relevant, non-privileged document is discoverable unless it was prepared in anticipation of litigation, pertains to expert witnesses, or would be unreasonably burdensome to produce. “Documents” is broadly defined to include all forms of recorded information. For clarity, the proposed subdivision (a) lists writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations as discoverable documents. Under the proposed regulation, a party is generally not required to create documents to meet a document request, but only to produce documents already in existence.
The Department proposes to incorporate current subdivisions (c) and (d) into proposed § 18.61(b). These subparts are revised to improve clarity but retain the same procedural requirements.
Under subdivision (b), the Department proposes to regulate the form in which electronic data must be produced (i.e. hard copy or electronic, and if electronic, the precise manner of production). This regulation is not included in the current rule. It allows, but does not require, the requesting party to specify the form in which it is requesting electronic data. The responding party can then produce it in that form or object and specify the form in which it will produce the electronic data. If the requesting party does not specify the form, then the responding party must produce it in the form in which it is ordinarily maintained or in a form that is reasonably usable. Unless the responding party is producing the data in the form specified by the requesting party, the responding party must specify the form it intends to use for production in its written response to the document request. If the responding party objects to the form stated by the requesting party, or if the requesting party is not satisfied with the form specified by the responding party, then the parties must meet and confer under § 18.57(a)(1). Under any of these scenarios, a party need not produce electronic data in more than one form.
The Department proposes to add a new regulation under subdivision (c),
The Department proposes to delete the service and filing language in the current subdivision (f) because the Department is proposing § 18.30,
The Department proposes a new § 18.62 modeled after Fed. R. Civ. P. 35 to regulate physical and mental examinations. Physical and mental examinations are currently covered by § 18.19; however, due to the high frequency of requests for physical and mental examinations the Department determined that there is a need for a separate section that sets forth the procedure for such requests.
The Department proposes to divide § 18.62 into three subparts: Examinations by motion, examinations by notice, and examiner's reports. This proposal reflects the distinction between examination by notice and examination by motion found in the federal rule.
The proposed subdivision (a) clarifies that a party may serve upon another party whose mental or physical condition is in controversy a notice to attend and submit to an examination by a suitable licensed or certified examiner. This provision notifies parties they may serve a request to attend and submit to an examination on another party only if their mental or physical condition is in controversy. The examiner must be licensed or certified to perform the examination.
The Department proposes to amend the content requirements of a notice to attend a physical or mental examination, currently located under § 18.19(c)(4). The proposed paragraph (a)(2) provides that a notice must specify: (A) The legal basis for the examination; (B) the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it; and (C) how the reasonable transportation expenses were calculated.
The Department proposes to add the requirement that “unless otherwise agreed by the parties, the notice must be served no fewer than 14 days before the examination date.” The Department determined that a 14-day notice period provides the person to be examined enough time to make arrangements to attend the physical or mental examination or file an objection. Under paragraph (a)(4), the person to be examined must serve any objection to the notice no later than 7 days after the notice is served. The objection must be stated with particularity. Under the current § 18.19, the party to be examined has 30 days to object after service of the request. The Department proposes to shorten the timeframe a party has to object in order to quickly resolve the objection and expedite the proceedings.
Under subdivision (b), the Department proposes to provide the procedure for objecting to an examination. Upon objection, the requesting party may file a motion to compel a physical or mental examination. The motion must include the elements required by § 18.62(a)(2).
The Department proposes to provide the procedure for examiner's reports under subdivision (c) in order to delete the reference to Fed. R. Civ. P. 35(b) in the current § 18.19(c)(4). The party who initiated the examination must deliver a complete copy of the examination report to the party examined, together with like reports of all earlier examinations of the same condition. The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.
The Department proposes to revise the current § 18.20 and renumber it as proposed § 18.63. The proposed § 18.63 is modeled after Fed. R. Civ. P. 36.
The Department proposes to combine the current subdivisions (b), (c), and (d) into proposed subdivision (a). Under subdivision (a), the Department proposes to establish the procedure whereby one party serves requests for admission on another party, who must investigate and either admit, deny with specificity, or object to each requested admission.
The scope of requests for admission is the broad discovery available under proposed § 18.51. The proposed subdivision (a) clarifies that a party may serve on any party a written request to admit facts relating to facts, the application of law to facts, or opinions about either.
Under paragraph (a)(2),
Proposed paragraph (a)(3),
Proposed paragraph (a)(4),
Under proposed paragraph (a)(5),
The Department proposes to combine and relocate the current subdivisions (e) and (f) to proposed subdivision (b),
The Department proposes to revise the current § 18.22 and renumber it as proposed § 18.64. The proposed § 18.64 is modeled after Fed. R. Civ. P. 30,
Under § 18.64 the Department expands the procedures for taking depositions by oral examination and this section must be considered in conjunction with the other discovery rules, in particular proposed § 18.51 governing the scope of discovery. The Department's regulations for depositions by written questions are located under proposed § 18.65.
The Department proposes to revise subdivision (a) to address when a deposition may be taken. The language regarding how and by whom a deposition may be taken in current subdivision (a) is relocated to proposed subdivision (b). The Department proposes to limit the number of depositions that parties may take to 10 depositions per side, absent leave of the judge or stipulation with the other parties. Depositions may be taken at any time after an initial notice or order is entered acknowledging that the proceeding has been docketed at OALJ. If the judge orders the parties to confer under proposed § 18.50(b), depositions must be taken within the time and sequence agreed upon by the parties. The Department proposes to limit the number of depositions to 10 to emphasize that representatives have an obligation to develop a mutually cost-effective plan for discovery in the case. Leave to take additional depositions should be granted when consistent with the principles of proposed § 18.51(b)(2), and in some cases the ten-per-side limit should be reduced in accordance with those same principles.
Under paragraph (a)(1), the Department clarifies that a deponent's attendance may be compelled by subpoena under § 18.56,
Leave of the judge is required to depose someone if the parties have not stipulated to the deposition and (i) The deposition would result in more than 10 depositions being taken under this section or § 18.65 by one of the parties; (ii) the deponent has already been deposed in the case; or (iii) the party seeks to take the deposition before the time specified in § 18.50(a), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time. Leave of the judge must be obtained in order to take the deposition of a person confined to prison.
The Department proposes to combine current subdivisions (b) and (c) into proposed subdivision (b),
The Department proposes to delete the language in current subdivision (b) requiring that the party giving notice state the name of the person before whom the deposition is to be taken. The name of the person before whom the deposition is to be taken is not relevant as long as the person meets the requirements stated in the regulation.
The Department proposes to delete the filing language in the current subdivision (c) because the Department is proposing § 18.30,
The Department proposes to add several regulations to proposed subdivision (b) that are not found in the current § 18.22. These provisions are modeled after Fed. R. Civ. P. 30(b)(2)-(b)(5) and come into current practice through the federal rule. Under proposed paragraph (b)(2), if a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. If the notice to a party-deponent is accompanied by a request for production under § 18.61, the notice must comply with the requirements of § 18.61(b).
The Department proposes to regulate the method of recording depositions under paragraph (b)(3). The notice of
Under proposed paragraph (b)(4), the Department clarifies that parties may stipulate—or the judge may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this section, the deposition takes place where the deponent answers the questions.
The Department proposes to regulate the officer's duties when taking a deposition. Under proposed subparagraph (b)(5)(A), unless the parties stipulate otherwise, a deposition must be conducted before a person having power to administer oaths. The officer must begin the deposition with an on-the-record statement that includes: (i) The officer's name and business address: (ii) the date, time, and place of the deposition; (iii) the deponent's name; (iv) the officer's administration of the oath or affirmation to the deponent; (v) the identity of all persons present; and (vi) the date and method of service of the notice of deposition. Specifically, (b)(5)(A)(vi) is in response to OALJ noticing that statements regarding notice are lacking in depositions.
The proposed subparagraph (b)(5)(B), provides that if the deposition is not recorded stenographically, the officer must repeat the items in proposed § 18.64(b)(5)(A)(i)-(iii) at the beginning of each unit of the recording medium. The deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques.
The proposed subparagraph (b)(5)(C), provides that at the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.
The proposed paragraph (b)(6) provides that in its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
The Department proposes to incorporate a revised version of current subdivision (d) into proposed subdivision (c),
Under paragraph (c)(2),
Under paragraph (c)(3),
The Department proposes to delete the language in current § 18.22(d) regarding use of depositions at hearing because the Department is proposing section § 18.55,
The Department proposes to add subdivision (d),
Under paragraph (d)(2) the judge may impose an appropriate sanction, in accordance with proposed § 18.57, on a person who impedes, delays, or frustrates the fair examination of the deponent. Under proposed subparagraph (d)(3)(A), the Department clarifies that at any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.
The Department proposes to relocate the language in the current § 18.22(e) regarding objections to the deposition conduct or proceeding to proposed § 18.55(b) and (d).
The Department proposes to add a new regulation under subdivision (e),
The Department proposes to add a new regulation under subdivision (f),
Proposed subparagraph (f)(2)(A) provides that documents and tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and attached to the deposition. Any party may inspect and copy them. However, if the person who produced them wants to keep the originals, the person may: (i) Offer copies to be marked, attached to the deposition, and then used as originals—after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or (ii) give all parties a fair opportunity to inspect and copy the originals after they are marked—in which event the originals may be used as if attached to the deposition. Any party may move for an order that the originals be attached to the deposition pending final deposition or the proceeding under proposed subparagraph (f)(2)(B).
Proposed paragraph (f)(3) provides that unless otherwise stipulated or ordered by the judge, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent. Proposed paragraph (f)(4) provides that a party who files the deposition must promptly notify all other parties of the filing. But depositions are not ordinarily filed.
The Department proposes to add a new regulation under subdivision (g),
The Department proposes to add a new § 18.65 modeled after Fed. R. Civ. P. 31. The Department proposes a new section to provide the procedure for taking depositions by written questions because the current Part 18, Subpart A rules do not specifically mention depositions by written questions. The current § 18.19 addresses written interrogatories to a party and the current § 18.22(a) states that “[d]epositions may be taken by oral examination or upon written interrogatories before any person having power to administer oaths.” The current § 18.22(a) also provides that “[d]epositions may be taken of any witness * * * .” Since there is a specific rule addressing written interrogatories to a party, the Department determined that the current § 18.22 contemplates taking written depositions of any witness.
The proposed subdivision (a) addresses when a deposition may be taken. Any party may take depositions by serving written questions, which are asked by the deposition officer (stenographer) and answered orally by the witness. A party seeking to take a deposition by written questions must serve a notice on all other parties stating the name and address of the deponent, if known, or other general description sufficient to identify the deponent and providing the name or title and address of the stenographer or officer before whom the deposition will be taken.
The notice of written deposition may be served at any time after the parties have conducted the discovery conference under § 18.50(b), or earlier with leave of the judge. In proceedings listed in proposed § 18.51(c)(1)(B) as exempted from initial disclosures, there is no preliminary waiting period for written depositions. The latest time to conduct a deposition upon written questions will be governed by the judge's scheduling order. Subpoenas must be used to compel non-party witnesses.
The written deposition questions for direct examination are served upon all parties with the notice. Within 14 days of service of the notice and direct examination questions, any other party may serve cross-examination questions. The noticing party may then serve redirect examination questions within 7 days, and the other party may serve re-cross examination questions within 7 more days. The judge may shorten or lengthen these time periods upon motion and for cause shown. All questions must be served on all parties.
All parties, including third-party respondents, are limited to 10 depositions total, by written and/or oral examination. This number may be increased by stipulations or leave of the judge. Leave of the judge is required to depose someone a second time. If a deponent is in prison, leave of the judge is required to take a written deposition. The scope of the written questions is the same as oral questions, and is controlled by proposed § 18.50. Objections to the form of a written question must be served in writing upon the party propounding the question within the time for serving succeeding questions and within 5 days of the last questions authorized.
Under proposed subdivision (b), unless a different procedure is ordered by the judge, the party who noticed the deposition must deliver to the officer a copy of all the questions served and a copy of the notice. The officer then promptly proceeds in the manner provided in proposed § 18.64 (c), (e), and (f) to take the deponent's testimony in response to the questions; prepare and certify the deposition; and send it to the party, attaching a copy of the questions and of the notice. A transcript is then prepared and submitted to the witness as provided in § 18.64 governing oral depositions.
Under proposed subdivision (c), the party who noticed the deposition must notify all other parties when it is completed. A party who files the depositions must promptly notify all other parties of the filing. But depositions are not ordinarily filed.
The Department determined that Part 18, Subpart A does not currently address all of the potential dispositive motions available to the parties. The Department proposes to add § 18.70,
Under proposed subdivision (a), when consistent with statute, regulation or executive order, any party may move under proposed § 18.33 for disposition of the pending proceeding. If the judge determines at any time that subject-matter jurisdiction is lacking, the judge must dismiss the matter.
Under proposed subdivision (b), a party may move to remand the matter to the referring agency when not precluded by statute or regulation. A remand order must include any terms or conditions and should state the reason for the remand.
Under proposed subdivision (c), a party may move to dismiss part or all of the matter for reasons recognized under
Under the proposed subdivision (d), when the parties agree that an evidentiary hearing is not needed, they may move for a decision based on stipulations of fact or a stipulated record.
The Department proposes to revise the current § 18.9 and renumber it as proposed § 18.71.
The current § 18.9,
In subdivision (a) the Department proposes to clarify when a party must submit a settlement agreement for the judge's review and approval. The Department does not propose any procedural changes from the current § 18.9.
In subdivision (b) the Department proposes to clarify when a party may file a motion for consent findings and what the order must contain. The Department does not propose any procedural changes from the current § 18.9.
The current Part 18, Subpart A contains two sections, §§ 18.40 and 18.41, that address summary decision. The Department determined these sections are repetitive and inadequately organized and, therefore, proposes § 18.72,
In addition to the significant stylistic changes, the Department proposes several procedural changes in § 18.72. Under subdivision (b), the Department proposes to change the time requirements for filing and responding to motions for summary judgment. The current § 18.40(a) provides that a party may, at least 20 days before the date fixed for any hearing, file a motion for summary judgment. It states that any other party may within 10 days after service of the motion, serve opposing affidavits or countermove for summary judgment. The Department proposes to increase the timeframe for filing motions for summary decision to 30 days before the date fixed for the formal hearing.
Parties should refer to proposed § 18.33 for the procedure on responding to motions. Under proposed § 18.33(d), the Department proposes to increase the number of days a party has to respond to a motion from 10 days to within 14 days from the date of service. Given the increased timeframe a party has to file an opposition or other response to a motion, the time for filing a summary decision motion must be extended to allow the judge an acceptable period of time to rule on the motion. If a motion is filed 30 days prior to the hearing date and the opposing party files an opposition or other response 14 days after receiving the motion, the judge will generally have adequate time to rule on the motion before the hearing date.
The current § 18.40(a) permits a party to “move with or without supporting affidavits for a summary decision * * *.” Under paragraph (c)(1), the Department proposes to require a party to cite specific parts of the record to support or oppose the motion. This proposed change comports with the standard the judge uses to review the motion, “that there is no genuine dispute as to any material fact and the movant is entitled to decision as a matter of law.”
The last sentence of the current § 18.40(a) states that the administrative law judge may set the matter for argument and/or call for submission of briefs. The Department proposes to relocate this language to proposed § 18.33(d).
The current § 18.40(b) states the procedure for filing and serving a motion for summary judgment. This provision is not included in the proposed § 18.72 because the service and filing of papers is covered by proposed § 18.30,
Under subdivision (c), the Department proposes a revised version of the current § 18.40(c). This subdivision applies to both the moving and nonmoving party. Under paragraph (c)(4) the Department proposes to clarify that “an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Under subdivision (d), the Department proposes a revised version of current § 18.40(d). The Department proposes to provide the judge with more options when a moving party denies access to information during discovery. In addition to denying the motion for summary decision, the judge may permit more time for discovery, or issue any other appropriate order.
The Department proposes to address three new topics under subdivisions (f), (g), and (h). Under subdivision (f), the Department proposes to clarify that after giving notice and a reasonable time to respond, the judge may: (1) Grant summary decision for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary decision on the judge's own after identifying for the parties material facts that may not be genuinely disputed. Under the current regulations, a judge who considers summary decision on his or her own must reference Fed. R. Civ. P. 56 in order to order summary judgment without a motion from the parties. The addition of this power within this proposed section allows the judge to rely on the Department's regulations.
The Department does not propose to change the power a judge has to issue an order granting partial summary judgment. Under this proposed subdivision, the Department proposes a procedure that the judge and parties must follow in the hearing after the judge grants partial summary judgment. The judge may enter an order stating any material fact—including an item of damages or other relief—that is not genuinely in dispute and treat the fact as established in the case.
Under proposed subdivision (h), the Department proposes to address the actions a judge may take if an affidavit or declaration is submitted in bad faith. These remedies are part of the judge's power to regulate the hearing under the Administrative Procedure Act.
The Department proposes to delete the language in the current § 18.41(a)(2) stating what a summary judgment decision must contain. The Department proposes § 18.92,
The Department proposes to relocate the language from the current § 18.41(b) to the proposed 18.33(g)
The Department proposes to revise the current § 18.7 and renumber it as proposed § 18.80.
Under subdivision (a), the Department proposes to add the requirement that a participating party file a prehearing statement at least 21 days prior to the
The Department proposes to add a new provision under subdivision (b) that requires the parties confer in good faith to stipulate to facts to the fullest extent possible and to prepare exhibit lists prior to filing prehearing statements. The Department proposes this change to help narrow the issues to be addressed at hearing and eliminate unnecessary travel for potential witnesses.
Under subdivision (c), the Department proposes to provide a revised version of the content requirements for a prehearing statement from the current § 18.7(b). The Department proposes to add that the prehearing statement must include a statement of the relief sought, a list of the party's exhibits and the joint exhibits. Otherwise, the content requirements remain procedurally the same as those in the current § 18.7.
The Department proposes to add a new regulation under subdivision (d) that permits the judge to require a joint prehearing statement instead of individual prehearing statements by the parties.
The Department proposes to add a new regulation under subdivision (e) that requires a party to file objections to an opposing party's proposed exhibits or use of deposition testimony within 14 days of being served. A party's failure to object waives the objection unless the judge finds good cause for the failure to object.
The Department proposes to revise the current § 18.43 and renumber it as proposed § 18.81. The proposed § 18.81 is modeled after Fed. R. Civ. P. 43.
The Department proposes to revise the current subdivision (a) to more accurately address the situations when a hearing would be closed to the public. The current subdivision (a) states that hearings may be closed to the public when it is in the “best interests of the parties, a witness, the public or other affected persons.” The Department proposes to delete this language and instead state that hearings may be closed to the public “when authorized by law and only to the minimum extent necessary.” The proposed change states the standard a judge will apply when determining whether to close all or part of a hearing. The applicable law does not suggest that hearings are closed based on the “best interests” of the parties. Further, the presumption of open hearings is supported by the requirement that a judge close a hearing only to the minimum extent possible. The proposed subdivision (a) clarifies that the judge's order closing the hearing must explain why the reasons for closure outweigh the presumption of public access to the hearing. The Department proposes to clarify that the judge may also close the hearing to anticipated witnesses. Parties would not be excluded, however.
The Department proposes to delete current subdivisions (b) and (c). The judge's jurisdiction to decide all issues of fact and related issues of law is addressed by proposed § 18.12,
The Department proposes to model a new subdivision (b) after Fed. R. Civ. P. 43(a). The proposed subdivision (b) requires that a witness testify in an open hearing. However, a judge may permit testimony in an open hearing by contemporaneous transmission from a different location “for good cause and with appropriate safeguards.” The Department determined that if a witness needs to testify remotely, the witness or party must show good cause, instead of having to show compelling circumstances, which is the higher legal standard set forth in Fed. R. Civ. P. 43(a). The Department's decision to set a lesser standard is not intended to diminish the importance of presenting live testimony in hearings. The very ceremony of a hearing and the presence of the factfinder may exert a powerful force for telling the truth. However, in contrast to the federal courts, OALJ has more relaxed evidentiary standards. Hearings take place worldwide and are not constrained by the concept of “venue.” Appropriate safeguards will be addressed by the judge in the prehearing order or conference and may include the exchange of exhibits and assurances that the witness will not be coached during the testimony.
Similarly, the Department proposes a new subdivision (c) to permit a party to participate in an open hearing by contemporaneous transmission from a different location for good cause and with appropriate safeguards. This provision accounts for the fact that some cases involve parties located outside the United States or in other remote locations that are unable to attend hearings in person. Subdivisions (b) and (c) are not intended to suggest that contemporaneous transmission is routine practice. The presiding judge may require advance notice to determine whether good cause exists.
The Department proposes to revise the current §§ 18.47 through 18.50 as part of the general restyling of the Part 18, Subpart A rules of procedure. The current §§ 18.47 through 18.50 are combined into a single section covering exhibits, proposed § 18.82.
The Department proposes to relocate the language from the current § 18.47 to subdivisions (a),
The Department proposes to relocate the language from the current § 18.48 to proposed subdivision (g),
The Department proposes to relocate the language from the current § 18.49 to proposed subdivision (f),
The Department proposes to relocate the language from current § 18.50 to proposed subdivision (d),
Under subdivision (b),
The Department proposes to revise the current § 18.51, renumber it as proposed § 18.83, and include it under subdivision (a). The Department does not propose any procedural changes to this subpart.
The Department proposes to add new regulations under subdivisions (b) and (c). These provisions are based on current practice as stipulations typically result from a judge's order. The proposed subdivision (b) applies to extensions of time not covered by proposed §§ 18.33,
Under proposed subdivision (c), the Department proposes that “[a] proposed form of order may be submitted with the stipulation; it may consist of an endorsement on the stipulation of the words, `Pursuant to stipulation, it is so ordered' with spaces designated for the date and the signature of the judge.”
The Department proposes to revise the current § 18.45 and renumber it as proposed § 18.84.
Under this section, the Department proposes to clarify the procedures a judge must follow when taking official notice. The Department proposes that official notice may be taken on motion of a party or on the judge's own. The current § 18.45 states that official notice may be taken on “any material fact, not appearing in evidence in the record, which is among the traditional matters of judicial notice.” This proposed change clarifies that official notice may be taken of any “adjudicative fact or matter subject to judicial notice.”
The proposed § 18.63,
The Department proposes to revise the current §§ 18.46 and 18.56 and combine them into a single section, proposed § 18.85, covering privileged, sensitive, or classified material.
The Department proposes to relocate the content from the current § 18.46 to subdivision (a). The current § 18.46 addresses several topics: (1) Limiting discovery and the introduction of evidence based on claims of privilege; (2) limiting the introduction of evidence based on claims of classified or sensitive information; (3) providing a summary or extracted version of a document to limit disclosures of classified or sensitive material; (4) permitting access to classified or sensitive matters despite their nature; and (5) requiring a representative to seek a security clearance in order to view the information.
The proposed subdivision (a) is more limited in scope than the current § 18.46. The procedures to limit the scope of discovery based on claims of privilege or sensitive information are addressed by proposed §§ 18.51,
The references to obtaining a security clearance in current paragraph (b)(2) are also deleted. The need for a participant in a hearing to obtain a security clearance is a rare event before OALJ. The Part 18, Subpart A rules are designed to apply to the typical types of cases heard by OALJ; the rules do not address all of the exceptions or possibilities that may occur in specific cases. Further, the process for seeking a security clearance would be determined by the federal agency holding the classified or sensitive information. OALJ does not independently facilitate a security clearance process. For these reasons, the references to obtaining a security clearance are deleted from proposed § 18.85.
The Department proposes to relocate the content from the current § 18.56 to subdivision (b). The proposed rule retains the option provided in current subdivision (a) that a party or the judge may move to seal a portion of the record. This section continues to require that the sealed portion of the record be clearly marked and maintained separately from other parts of the record in the case.
The proposed subdivision (b) imposes new requirements on parties. When filing a motion to seal the record, a party must propose a redaction no broader than necessary for inclusion in the public record. If the movant finds that a redaction would be so extensive as to make the material meaningless, the movant must file a summary of the material to be included in the public record. The requirement of filing a redacted copy or summary along with the motion to seal the record ensures that the public continues to have access to as much information as possible regarding the proceedings.
Under paragraph (b)(2), if the judge issues an order sealing all or part of the record, the judge must explain why the need to seal part of the record outweighs the presumption of public access. A redacted version or summary of the material must be included in the record unless the redactions make the public version of the material meaningless, or if the redacted version or summary defeats the reason the original is sealed. Notwithstanding the judge's order, all parts of the record remain subject to statutes and regulations pertaining to public access to agency records.
The Department proposes to revise the current § 18.37 and renumber it as proposed § 18.86.
The first sentence of the current § 18.37 states that proceedings are to be conducted in an orderly manner. The Department proposes to amend this sentence to directly address how participants must conduct themselves during a hearing, instead of generally stating how the hearing should be managed. The proposed change provides direct instructions to the participants.
The Department proposes to retain the prohibition on food and beverage consumption and the rearranging of furniture in the hearing location. The Department proposes to delete the reference to smoking. Prohibitions on smoking in public places, specifically hearing locations, are more ubiquitous than in 1983 when the current Part 18, Subpart A was adopted. A specific prohibition in Part 18, Subpart A, therefore, is not required.
The Department proposes to add a prohibition on disrupting proceedings with electronic devices. This addition is a result of changing technology since the current Part 18, Subpart A was adopted. Electronic devices and their use can be distracting and disruptive during a hearing. Accordingly, limiting
The Department proposes to revise the current § 18.36 and renumber it as proposed § 18.87.
The Department proposes to divide the current subdivision (b) into two subdivisions: (b),
Under subdivision (c), the Department proposes to provide the procedure a party's representative must initiate in order to be reinstated as a representative in a particular matter. The current § 18.36 does not indicate a time period in which the representative must seek reinstatement. The Department proposes a 7-day time period for a representative to request reinstatement. Seven days is proposed so as not to create too long a delay in proceeding with the claim.
The Department proposes to revise the current § 18.52 and renumber it as proposed § 18.88.
The Department proposes to limit the application of this section to hearing transcripts and corrections to the transcript. The Department, therefore, proposes to delete the second and third sentences of the current subdivision (a). The second sentence refers to the basis of the judge's decision, which is controlled by sec. 557(b) of the APA. Because this current provision is covered by a statute, it is unnecessary to include the provision in the proposed § 18.88. The Department propose to delete the references to exhibits in the third sentence because the identification, marking, and inclusion of exhibits in the record are addressed by proposed § 18.82,
The Department proposes to amend the first sentence of the current subdivision (a) to require that all hearings be recorded and transcribed. The Department proposes to delete the methods of recording and transcription in recognition of the variety of technologies used to record and transcribe proceedings. The deletion, however, does not alter the meaning or application of the rule. The rule continues to require a transcript of a hearing.
Under subdivision (b), the Department proposes to extend the time permitted to file a motion to correct a transcript to 14 days. The current subdivision (b) requires that a party file the motion within 10 days of receipt of the transcript. This change to 14 days comports with the general revision to set time periods based on multiples of 7.
The Department proposes to add a new provision under subdivision (b) to permit a judge to correct a transcript on his or her own, without a prior motion from a party, prior to issuing a decision. If a judge corrects the transcript, the judge must provide notice to the parties.
The Department proposes to revise the current §§ 18.54 and 18.55 and combine them into proposed § 18.90.
The Department proposes to combine the current § 18.54(a) and (b) into proposed subdivision (a). The Department proposes only stylistic changes to the language of these current subdivisions.
The Department proposes to incorporate the provisions contained in existing §§ 18.54(c) and 18.55 into proposed subdivision (b). The paragraph (b)(1) provides the standard the judge will apply when ruling on a motion to admit additional evidence. The proposed section retains the requirement that the additional evidence be “new and material evidence.” The proposed section requires that the party demonstrate that it could not have discovered the new evidence with reasonable diligence before the record closed.
Under paragraph (b)(1), the Department proposes to require the party offering the additional evidence to file a motion promptly after discovering the evidence. This sentence makes several changes to the existing requirement in § 18.55. First, the proposed section emphasizes that a party must file a motion asking to reopen the record for filing additional evidence. Requiring the party to file a motion incorporates the requirements of proposed § 18.33,
The Department proposes to delete the timeframe for filing and responding to additional evidence in the current § 18.55. Constraining the party to filing new evidence 20 days after the close of the hearing was an unnecessarily restrictive time limit. If a party promptly files a motion seeking to reopen the record based on new and material evidence that was not available before the hearing, the judge will consider the motion based on the requirements of the proposed (b)(1).
The Department proposes to clarify in paragraph (b)(2) that if the record is reopened, the other parties must have an opportunity to offer responsive evidence, and a new evidentiary hearing may be set.
The Department proposes to revise the final sentence of the current § 18.54(c) and relocate it to proposed subdivision (c). The Department proposes to revise this subdivision to instruct the parties that the record will remain open for additional appropriate motions; the content of the record is defined in proposed § 18.88.
The Department proposes to revise the current § 18.57 and separate the content into two separate sections: §§ 18.91,
The Department proposes to eliminate the 20-day filing period set in the current § 18.57(a). The 20-day timeframe for filing proposed findings of fact, conclusions of law, and a proposed order is rarely used by parties before OALJ. Instead, the parties follow the schedule ordered by the judge at the close of the formal hearing or the judge's order granting a hearing on the record. Accordingly, the proposed section permits the parties to file closing briefs within the time period established by the judge.
The Department determined that parties before OALJ rarely file proposed findings of facts and proposed order, as litigants file in state or federal district court. Rather, parties or their representatives typically file post-hearing briefs. Under the proposed § 19.91, the Department proposes that judges allow a party or representative to file a post-hearing brief that emphasizes the three major items parties should emphasize in closing briefs: findings of fact, conclusions of law and the specific relief sought. Like the current regulation, the proposed section requires that the post-hearing briefs refer to all portions of the record and cite authorities supporting the party's assertions.
The Department proposes to delete the provision in the current § 18.57(a) that requires parties to serve post-hearing filings on all parties. Under proposed § 18.30,
The Department proposes to revise the current § 18.57 and separate the content into separate sections: §§ 18.91,
The Department proposes to delete the reference to issuing a decision and order within 30 days of receipt of proposed consent findings and order. Instead, the proposed section states that “at the conclusion of the proceeding, the judge must issue a written decision and order.” OALJ has jurisdiction to decide claims under a variety of statutes which impose different, but specific timeframes for issuing a decision and order. When a statute or regulation does not specifically mention a timeframe for issuing a decision and order, the judge, as is current practice, will issue a decision and order within a reasonable time.
The Department proposes to delete the last three sentences of the current § 18.57. The statements repeat the requirements imposed by sec. 557(c) of the APA, therefore, the Department determined that it is unnecessary to repeat the substantive requirements of the judge's decision in OALJ's rules of procedure. These APA requirements will continue to apply to decisions and orders issued by OALJ judges.
The Department proposes to add a new § 18.93 modeled after Fed. R. Civ. P. 59(e),
Under proposed § 18.93, the Department proposes that “a motion for reconsideration of a decision and order must be filed no later than 10 days after service of the decision on the moving party.” The purpose of this section is to make clear that judges possess the power to alter or amend a judgment after its entry.
The Department proposes to set a 10-day limitation on filing a motion for reconsideration; however, it recognizes that governing statutes, regulations, and executive orders, such as the Black Lung regulations, may provide a different time for filing motions for reconsideration. In those circumstances, the rule of special application will apply.
The Department proposes to add a new § 18.94 modeled after Fed. R. Civ. P. 62.1 (December 1, 2009). The current Part 18, Subpart A does not specifically mention indicative rulings on a motion for relief that is barred by a pending appeal or petition for review. The proposed § 18.94 applies to motions made before a judge after an appeal has been docketed with an appellate board, and the judge no longer has jurisdiction over the merits of the case. At OALJ parties occasionally file post-appeal motions, so the Department determined that it is helpful to have a section that informs the judge and the appellate board how the motion should be addressed. Inclusion of this section is consistent with the Department's approach to include provisions from the FRCP unless the rule is inapplicable to OALJ proceedings.
The proposed § 18.94 does not attempt to define the circumstances in which an appeal limits or defeats the judge's authority to act in the face of a pending appeal. This section applies only when the rules that govern the relationship between the judge and appellate review boards deprive the judge of the authority to grant relief without appellate permission. If a judge concludes that he or she has authority to grant relief without appellate permission, he or she may act without falling back on the indicative ruling procedure.
Often it will be appropriate for the judge to determine whether the judge in fact would grant the motion if the appellate review board remands for that purpose. But a motion may present complex issues that require extensive litigation and that may either be mooted or be presented in a different context by decision of the issues raised on appeal. In such circumstances the judge may prefer to state that the motion raises a substantial issue, and to state the reasons why the judge prefers to decide it only if the appellate review board agrees that it would be useful to decide the motion before decision of the pending appeal. The judge is not bound to grant the motion after stating that the motion raises a substantial issue; further proceedings on remand may show that the motion ought not to be granted.
The Department proposes to revise the current § 18.58 and renumber it as proposed § 18.95. As in the current rule, the proposed rule states that the statute or regulation that conferred hearing jurisdiction provides the procedure for review of a judge's decision. If the statute or regulation does not provide a procedure, the judge's decision becomes the Secretary's final administrative decision. The Department does not propose any procedural changes to this rule.
The Department proposes to delete the current § 18.13. The first sentence of the rule lists the methods of discovery available to a party. Prior to the 2007 amendments, the FRCP included a similar provision under Fed. R. Civ. P. 26; however, the 2007 amendments to the FRCP deleted this provision. The 2007 Advisory Committee Notes to Fed. R. Civ. P. 26 state that “former Rule 26(a)(5) served as an index of the discovery methods provided by later rules. It was deleted as redundant.” Similarly, the Department proposes to delete the first sentence of the current § 18.13 just as Fed. R. Civ. P. 26(a)(5) was deleted. The second sentence to the current § 18.13 explains that, unless the judge orders otherwise, there are no limits on the frequency or sequence for use of the discovery methods. The frequency, timing, and sequence of discovery are addressed by proposed § 18.50,
The Department proposes to delete the current § 18.32. The text of current § 18.32 is based on § 554(d) of the APA. This regulation repeats the statute without adding additional procedures or guidance, therefore, the Department proposes to delete it.
The Department proposes to delete the current § 18.33. The parties' right to a hearing within a reasonable time is encompassed in proposed § 18.10,
The Department proposes to delete the current § 18.53. The proposed § 18.12,
The Department proposes to delete the current § 18.59. If OALJ receives a request for a certified copy of the record,
Administrative practice and procedure, Labor.
Signed at Washington, DC.
For the reasons set out in the Preamble, the Office of the Secretary, Labor proposes to amend 29 CFR part 18 as set forth below.
1. The authority citations for Part 18 continue to read as follows:
5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.
2. Revise Subpart A to read as follows:
(a)
(b)
(c)
For purposes of these rules, these definitions supplement the definitions in the Administrative Procedure Act, 5 U.S.C. 551.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(b)
(1) regulate the course of proceedings in accordance with applicable statute, regulation or executive order;
(2) administer oaths and affirmations and examine witnesses;
(3) compel the production of documents and appearance of witnesses within a party's control;
(4) issue subpoenas authorized by law;
(5) rule on offers of proof and receive relevant evidence;
(6) dispose of procedural requests and similar matters;
(7) terminate proceedings through dismissal or remand when not inconsistent with statute, regulation, or executive order;
(8) issue decisions and orders;
(9) exercise powers vested in the Secretary of Labor that relate to proceedings before the Office of Administrative Law Judges; and
(10) take actions authorized by the FRCP.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
The parties, their representatives, or other interested persons must not engage in ex parte communications on the merits of a case with the judge.
(a)
(b)
(a)
(b)
The Office of Administrative Law Judges does not appoint representatives, refer parties to representatives, or provide legal assistance.
A party seeking original relief or action is designated a complainant, claimant or plaintiff, as appropriate. A party against whom relief or other action is sought is designated a respondent or defendant, as appropriate. When participating in a proceeding, the applicable Department of Labor's agency is a party or party-in-interest.
(a)
(b)
(c)
(a)
(b)
(1)
(A)
(B)
(C)
(2)
(c)
(d)
(1) threaten, coerce, intimidate, deceive or knowingly mislead a party, representative, witness, potential witness, judge, or anyone participating in the proceeding regarding any matter related to the proceeding;
(2) knowingly make or present false or misleading statements, assertions or representations about a material fact or law related to the proceeding;
(3) unreasonably delay, or cause to be delayed, without good cause, any proceeding; or
(4) engage in any other action or behavior prejudicial to the fair and orderly conduct of the proceeding.
(e)
(a)
(1)
(A) conviction of a felony;
(B) conviction of a misdemeanor, a necessary element of which includes:
(i) interference with the administration of justice;
(ii) false swearing;
(iii) misrepresentation;
(iv) fraud;
(v) willful failure to file an income tax return;
(vi) deceit;
(vii) bribery;
(viii) extortion;
(ix) misappropriation;
(x) theft; or
(xi) attempt, conspiracy, or solicitation to commit a serious crime.
(C) suspension or disbarment by any court or agency of the United States, the District of Columbia, any state, territory, commonwealth or possession of the United States;
(D) disbarment on consent or resignation from the bar of a court or agency while an investigation into an allegation of misconduct is pending;
(2)
(b)
(1)
(A) an act, omission, or contumacious conduct relating to any proceeding before OALJ that violates these rules, an applicable statute, an applicable regulation, or the judge's order or instruction; or
(B) failure to adhere to the applicable rules of conduct for the jurisdiction(s) in which the attorney is admitted to practice in any proceeding before OALJ.
(2)
(A)
(B)
(C)
(D)
(c)
(d)
The United States or an officer or agency thereof, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus brief without the consent of the parties or leave of the judge. Any other amicus curiae may file a brief only by leave of the judge, upon the judge's request, or if the brief states that all parties have consented to its filing. A request for leave to file an amicus brief must be made by written motion that states the interest of the movant in the proceeding. Unless otherwise directed by the judge, an amicus brief must be filed by the close of the hearing.
(a)
(1)
(2)
(A)
(B)
(i) handing it to the person;
(ii) leaving it:
(a) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or
(b) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there;
(iii) mailing it to the person's last known address—in which event service is complete upon mailing;
(iv) leaving it with the docket clerk if the person has no known address;
(v) sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or
(vi) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery.
(3)
(A) the title of the document;
(B) the name and address of each person or representative being served;
(C) the name of the party filing the paper and the party's representative, if any;
(D) the date of service; and
(E) how the paper was served.
(b)
(1)
(A) notices of deposition,
(B) depositions,
(C) interrogatories,
(D) requests for documents or tangible things or to permit entry onto land; and
(E) requests for admission.
(2)
(3)
(A)
(i)
(ii)
(iii)
(B) Any party filing a facsimile of a document must maintain the original document and transmission record until the case is final. A transmission record is a paper printed by the transmitting facsimile machine that states the telephone number of the receiving machine, the number of pages sent, the transmission time and an indication that no error in transmission occurred.
(C) Upon a party's request or judge's order, the filing party must provide for review the original transmitted document from which the facsimile was produced.
(4)
(a)
(1) the last four digits of the Social-Security number and taxpayer-identification number;
(2) the year of the individual's birth;
(3) the minor's initials; and
(4) the last four digits of the financial-account number.
(b)
(1) the record of an administrative or agency proceeding;
(2) the official record of a state-court proceeding;
(3) the record of a court or tribunal, if that record was not subject to the
(4) a filing or exhibit covered by paragraph (c) of this section.
(c)
(d)
(e)
(a)
(1) When the period is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(2)
(3)
(4)
(b)
(1) with or without motion or notice if the judge acts, or if a request is made, before the original time or its extension expires; or
(2) on motion made after the time has expired if the party failed to act because of excusable neglect.
(c)
(a)
(1) be in writing, unless made during a hearing;
(2) state with particularity the grounds for seeking the order;
(3) state the relief sought;
(4) unless the relief sought has been agreed to by all parties, be accompanied by affidavits, declarations, or other evidence; and
(5) if required by subsection (c)(4), include a memorandum of points and authority supporting the movant's position.
(b)
(c)
(1) A written motion before a hearing must be served with supporting papers, at least 21 days before the time specified for the hearing, with the following exceptions:
(A) when the motion may be heard ex parte;
(B) when these rules or an appropriate statute, regulation, or executive order set a different time; or,
(C) when an order sets a different time.
(2) A written motion served within 21 days before the hearing must state why the motion was not made earlier.
(3) A written motion before hearing must state that counsel conferred, or attempted to confer, with opposing counsel in a good faith effort to resolve the motion's subject matter, and whether the motion is opposed or unopposed. A statement of consultation is not required with pro se litigants or with the following motions:
(A) to dismiss;
(B) for summary decision; and
(C) any motion filed as “joint,” “agreed,” or “unopposed.”
(4) Unless the motion is unopposed, the supporting papers must include affidavits, declarations or other proof to establish the factual basis for the relief. For a dispositive motion and a motion relating to discovery, a memorandum of points and authority must also be submitted. A Judge may direct the parties file additional documents in support of any motion.
(d)
(e) A
(f)
(1) the earlier motion(s);
(2) when the respective motion was made,
(3) the judge to whom the motion was made,
(4) the earlier ruling(s), and
(5) the basis for the current motion.
(g)
Every paper filed must be printed in black ink on 8.5 x 11-inch opaque white paper and begin with a caption that includes:
(a) the parties' names,
(b) a title that describes the paper's purpose, and
(c) the docket number assigned by the Office of Administrative Law Judges. If the Office has not assigned a docket number, the paper must bear the case number assigned by the Department of Labor agency where the matter originated. If the case number is an individual's Social Security number then only the last four digits may be used.
(a)
(b)
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of the proceedings;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(c)
(1)
(2)
(3)
(4)
(5)
(d)
The judge may allow parties to amend and supplement their filings.
(a)
(b)
(a)
(b)
(1)
(2)
A party may move to expedite the proceeding. The motion must demonstrate the specific harm that would result if the proceeding is not expedited. If the motion is granted, the formal hearing ordinarily will not be scheduled with less than 7 days notice to the parties, unless all parties consent to an earlier hearing.
(a)
(1) join for hearing any or all matters at issue in the proceedings;
(2) consolidate the proceedings; or
(3) issue any other orders to avoid unnecessary cost or delay.
(b)
(a)
(1) expediting disposition of the proceeding;
(2) establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) discouraging wasteful prehearing activities;
(4) improving the quality of the hearing through more thorough preparation; and
(5) facilitating settlement.
(b)
(c)
(d)
(1) formulating and simplifying the issues, and eliminating frivolous claims or defenses;
(2) amending the papers that had framed the issues before the matter was referred for hearing;
(3) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence;
(4) avoiding unnecessary proof and cumulative evidence, and limiting the number of expert or other witnesses;
(5) determining the appropriateness and timing of dispositive motions under §§ 18.70 and 18.72;
(6) controlling and scheduling discovery, including orders affecting disclosures and discovery under §§ 18.50 through 18.65;
(7) identifying witnesses and documents, scheduling the filing and exchange of any exhibits and prehearing submissions, and setting dates for further conferences and for the hearing;
(8) referring matters to a special master;
(9) settling the case and using special procedures to assist in resolving the dispute such as the settlement judge procedure under § 18.13, private mediation, and other means authorized by statute or regulation;
(10) determining the form and content of prehearing orders;
(11) disposing of pending motions;
(12) adopting special procedures for managing potentially difficult or protracted proceedings that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;
(13) consolidating or ordering separate hearings under § 18.43;
(14) ordering the presentation of evidence early in the proceeding on a manageable issue that might, on the evidence, be the basis for disposing of the proceeding;
(15) establishing a reasonable limit on the time allowed to present evidence; and
(16) facilitating in other ways the just, speedy, and inexpensive disposition of the proceeding.
(e)
(a)
(1)
(A) the time to respond to any pending discovery requests is extended until the time agreed in the discovery plan, or that the judge sets in resolving disputes about the discovery plan, and
(B) no party may seek additional discovery from any source before the parties have conferred as required by paragraph (b) of this section, except by stipulation.
(2)
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery.
(b)
(1)
(2)
(3)
(A) what changes should be made in the timing, form, or requirement for disclosures under paragraph (c) of this section, including a statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as hearing-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the judge to include their agreement in an order;
(E) what changes should be made in the limitations on discovery imposed under these rules and what other limitations should be imposed; and
(F) any other orders that the judge should issue under § 18.52 or under § 18.44.
(c)
(1)
(A)
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; and
(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under § 18.61 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.
(B)
(i) a proceeding under 29 CFR part 20 for review of an agency determination regarding the existence or amount of a debt, or the repayment schedule proposed by the agency;
(ii) a proceeding before the Board of Alien Labor Certification Appeals under the Immigration and Nationality Act; and
(iii) a proceeding under the regulations governing certification of H-2 non-immigrant temporary agricultural employment at 20 CFR part 655, subpart B;
(iv) a rulemaking proceeding under the Occupational Safety and Health Act of 1970; and
(v) a proceeding for civil penalty assessments under Employee Retirement Income Security Act of 1974, 29 U.S.C. 1132.
(C)
(i) in a Black Lung benefits proceeding under 30 U.S.C. 901
(ii) in a proceeding under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901
(D)
(E)
(F)
(2)
(A)
(B)
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial, a hearing, or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
(C)
(i) the subject matter on which the witness is expected to present expert opinion evidence; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.
(D)
(3)
(4)
(d)
(1)
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
(2)
(3)
(a)
(b)
(1)
(2)
(3) By requesting electronically stored information, a party consents to the application of Federal Rule of Evidence 502 with regard to inadvertently disclosed privileged or protected information.
(4)
(A) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(B) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(C) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
(c)
(1)
(A) they are otherwise discoverable under paragraph (a) of this section; and
(B) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(2)
(3)
(A) a written statement that the person has signed or otherwise adopted or approved; or
(B) a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement.
(d)
(1)
(2)
(3)
(A) relate to compensation for the expert's study or testimony;
(B) identify facts or data that the party's representative provided and that the expert considered in forming the opinions to be expressed; or
(C) identify assumptions that the party's representative provided and that the expert relied on in forming the opinions to be expressed.
(4)
(A) as provided in § 18.62(b); or
(B) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
(e)
(1)
(A) expressly make the claim; and
(B) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(2)
(a)
(1) forbidding the disclosure or discovery;
(2) specifying terms, including time and place, for the disclosure or discovery;
(3) prescribing a discovery method other than the one selected by the party seeking discovery;
(4) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(5) designating the persons who may be present while the discovery is conducted;
(6) requiring that a deposition be sealed and opened only on the judge's order;
(7) requiring that a trade secret or other confidential research, development, or commercial
(8) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the judge directs.
(b)
(a)
(1) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(2) as ordered by the judge.
(b)
Unless the judge orders otherwise, the parties may stipulate that:
(a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified—in which event it may be used in the same way as any other deposition; and
(b) other procedures governing or limiting discovery be modified—but a stipulation extending the time for any form of discovery must have the judge's approval if it would interfere with the time set for completing discovery, for hearing a motion, or for hearing.
(a)
(1)
(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the applicable rules of evidence if the deponent were present and testifying; and
(C) the use is allowed by paragraphs (a)(2) through (8) of this section.
(2)
(3)
(4)
(5)
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the place of hearing or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition;
(C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition could not procure the witness's attendance by subpoena; or
(E) on motion and notice, that exceptional circumstances make it desirable—in the interests of justice and with due regard to the importance of live testimony in an open hearing—to permit the deposition to be used.
(6)
(A)
(B)
(7)
(8)
(b)
(c)
(d)
(1)
(2)
(A) before the deposition begins; or
(B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.
(3)
(A)
(B)
(i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and
(ii) it is not timely made during the deposition.
(C)
(4)
(a)
(1) Upon written application of a party the judge may issue a subpoena authorized by statute or law that requires a witness to attend and to produce relevant papers, books, documents, or tangible things in the witness' possession or under the witness' control.
(2)
(A)
(i) state the title of the matter and show the case number assigned by the Office of Administrative Law Judges or the Office of Worker's Compensation Programs. In the event that the case number is an individual's Social Security number only the last four numbers may be used.
(ii) bear either the signature of the issuing judge or the signature of an attorney authorized to issue the subpoena under paragraph (a)(3) of this section;
(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and
(iv) set out the text of paragraphs (c) and (d) of this section.
(B)
(C)
(D)
(3) The judge may, by order in a specific proceeding, authorize an attorney representative to issue and sign a subpoena.
(b)
(1)
(2)
(3)
(4)
(c)
(1)
(2)
(A)
(B)
(i) At any time, on notice to the commanded person, the serving party may move the judge for an order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
(3)
(A)
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person—except that, subject to paragraph (c)(3)(B)(iii) of this section, the person may be commanded to attend the formal hearing;
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B)
(i) disclosing a trade secret or other confidential research, development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend the formal hearing.
(C)
(i) shows a substantial need for the testimony or material that cannot be
(ii) ensures that the subpoenaed person will be reasonably compensated.
(d)
(1)
(A)
(B)
(C)
(D)
(2)
(A)
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
(B)
(e)
(a)
(1)
(2)
(A)
(B)
(i) a deponent fails to answer a question asked under §§ 18.64 and 18.65;
(ii) a corporation or other entity fails to make a designation under §§ 18.64(d) and 18.65(a)(4);
(iii) a party fails to answer an interrogatory submitted under § 18.60; or
(iv) a party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under § 18.61.
(C)
(3)
(b)
(1)
(A) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the proceeding, as the prevailing party claims;
(B) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(C) striking claims or defenses in whole or in part;
(D) staying further proceedings until the order is obeyed;
(E) dismissing the proceeding in whole or in part; or
(F) rendering a default decision and order against the disobedient party;
(2)
(c)
(d)
(1)
(A)
(i) a party or a party's officer, director, or managing agent—or a person designated under §§ 18.64(b)(6) and 18.65(a)(4)—fails, after being served with proper notice, to appear for that person's deposition; or
(ii) a party, after being properly served with interrogatories under § 18.60 or a request for inspection under § 18.61, fails to serve its answers, objections, or written response.
(B)
(2)
(3)
(e)
(f)
(1) a separately filed motion; or
(2) notice from the judge followed by a reasonable opportunity to be heard.
(a)
(1)
(2)
(b)
(1)
(A) by the party to whom they are directed; or
(B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.
(2)
(3)
(4)
(5)
(c)
(d)
(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
(a)
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
(A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
(b)
(1)
(A) must describe with reasonable particularity each item or category of items to be inspected;
(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
(C) may specify the form or forms in which electronically stored information is to be produced.
(2)
(A)
(B)
(C)
(D)
(E)
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
(c)
(a)
(1)
(2)
(A) the legal basis for the examination;
(B) the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it; and
(C) how the reasonable transportation expenses were calculated.
(3)
(4)
(b)
Upon objection by the person to be examined the requesting party may file a motion to compel a physical or mental examination. The motion must include the elements required by paragraph (a)(2) of this section.
(c)
(1)
(2)
(a)
(1)
(A) facts, the application of law to fact, or opinions about either; and
(B) the genuineness of any described documents.
(2)
(3)
(4)
(5)
(6)
(b)
(a)
(1)
(2)
(A) if the parties have not stipulated to the deposition and:
(i) the deposition would result in more than 10 depositions being taken under this section or § 18.65 by one of the parties;
(ii) the deponent has already been deposed in the case; or
(iii) the party seeks to take the deposition before the time specified in § 18.50(a), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or
(B) if the deponent is confined in prison.
(b)
(1)
(2)
(3)
(A)
(B)
(4)
(5)
(A)
(i) The officer's name and business address;
(ii) the date, time, and place of the deposition;
(iii) the deponent's name;
(iv) the officer's administration of the oath or affirmation to the deponent;
(v) the identity of all persons present; and
(vi) the date and method of service of the notice of deposition.
(B)
(C)
(6)
(c)
(1)
(2)
(3)
(d)
(1)
(2)
(3)
(A)
(B)
(e)
(1)
(A) To review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
(2)
(f)
(1)
(2)
(A)
(i) Offer copies to be marked, attached to the deposition, and then used as originals—after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or
(ii) give all parties a fair opportunity to inspect and copy the originals after they are marked—in which event the originals may be used as if attached to the deposition.
(B)
(3)
(4)
(g)
(1) Attend and proceed with the deposition; or
(2) serve a subpoena on a nonparty deponent, who consequently did not attend.
(a)
(1)
(2)
(A) If the parties have not stipulated to the deposition and:
(i) The deposition would result in more than 10 depositions being taken under this section or § 18.64 by a party;
(ii) the deponent has already been deposed in the case; or
(iii) the party seeks to take a deposition before the time specified in § 18.50(a); or
(B) if the deponent is confined in prison.
(3)
(4)
(5)
(b)
(1) Take the deponent's testimony in response to the questions;
(2) prepare and certify the deposition; and
(3) send it to the party, attaching a copy of the questions and of the notice.
(c)
(1)
(2)
(a)
(b)
(c)
(d)
(a)
(b)
(1) a statement that the order has the same effect as one made after a full hearing;
(2) a statement that the order is based on a record that consists of the paper that began the proceeding (such as a complaint, order of reference, or notice of administrative determination), as it may have been amended, and the agreement;
(3) a waiver of any further procedural steps before the judge; and
(4) a waiver of any right to challenge or contest the validity of the order entered into in accordance with the agreement.
(a)
(b)
(c)
(1)
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2)
(3)
(4)
(d)
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e)
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary decision if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f)
(1) grant summary decision for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary decision on the judge's own after identifying for the parties material facts that may not be genuinely in dispute.
(g)
(h)
(a)
(b)
(1) stipulate to the facts to the fullest extent possible; and
(2) revise exhibit lists, eliminate duplicative exhibits, prepare joint exhibits, and attempt to resolve any objections to exhibits.
(c)
(1) the party's name;
(2) the issues of law to be determined with reference to the appropriate statute, regulation, or case law;
(3) a precise statement of the relief sought;
(4) the stipulated facts that require no proof;
(5) the facts disputed by the parties;
(6) a list of witnesses the party expects to call;
(7) a list of the joint exhibits;
(8) a list of the party's exhibits;
(9) an estimate of the time required for the party to present its case-in-chief; and
(10) any additional information that may aid the parties' preparation for the hearing or the disposition of the proceeding, such as the need for specialized equipment at the hearing.
(d)
(e)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a) The parties may stipulate to any facts in writing at any stage of the proceeding or orally on the record at a deposition or at a hearing. These stipulations bind the parties unless the judge disapproves them.
(b) Every stipulation that requests or requires a judge's action must be written and signed by all affected parties or their representatives. Any stipulation to extend time must state the reason for the date change.
(c) A proposed form of order may be submitted with the stipulation; it may consist of an endorsement on the stipulation of the words, “Pursuant to stipulation, it is so ordered,” with spaces designated for the date and the signature of the judge.
On motion of a party or on the judge's own, official notice may be taken of any adjudicative fact or other matter subject to judicial notice. The parties must be given an adequate opportunity to show the contrary of the matter noticed.
(a)
(b)
(1) On motion of any interested person or the judge's own, the judge may order any material that is in the record to be sealed from public access. The motion must propose the fewest redactions possible that will protect the interest offered as the basis for the motion. A redacted copy or summary of any material sealed must be made part of the public record unless the necessary redactions would be so extensive that the public version would be meaningless, or making even a redacted version or summary available would defeat the reason the original is sealed.
(2) An order that seals material must state findings and explain why the reasons to seal adjudicatory records outweigh the presumption of public access. Sealed materials must be placed in a clearly marked, separate part of the record. Notwithstanding the judge's order, all parts of the record remain subject to statutes and regulations pertaining to public access to agency records.
Participants must conduct themselves in an orderly manner. The consumption of food or beverage, and rearranging courtroom furniture are prohibited, unless specifically authorized by the judge. Electronic devices must be silenced and must not disrupt the proceedings. Parties, witnesses and spectators are prohibited from using video or audio recording devices to record hearings.
(a)
(b)
(c)
(a)
(b)
(a)
(b)
(1) A motion to reopen the record must be made promptly after the additional evidence is discovered. No additional evidence may be admitted unless the offering party shows that new and material evidence has become available that could not have been discovered with reasonable diligence before the record closed. Each new item must be designated as an exhibit under § 18.82(a) and accompanied by proof that copies have been served on all parties.
(2) If the record is reopened, the other parties must have an opportunity to offer responsive evidence, and a new evidentiary hearing may be set.
(c)
The judge may grant a party time to file a post-hearing brief with proposed findings of fact, conclusions of law, and the specific relief sought. The brief must refer to all portions of the record and authorities relied upon in support of each assertion.
At the conclusion of the proceeding, the judge must issue a written decision and order.
A motion for reconsideration of a decision and order must be filed no later than 10 days after service of the decision on the moving party.
(a)
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that the judge would grant the motion if the reviewing body remands for that purpose or that the motion raises a substantial issue.
(b)
(c)
The statute or regulation that conferred hearing jurisdiction provides the procedure for review of a judge's decision. If the statute or regulation does not provide a procedure, the judge's decision becomes the Secretary's final administrative decision.