[Federal Register Volume 75, Number 119 (Tuesday, June 22, 2010)]
[Proposed Rules]
[Pages 35424-35432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14708]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R4-ES-2008-0119; 92220-1113-0000-C6]
RIN 1018-AX01


Endangered and Threatened Wildlife and Plants; Proposed 
Reclassification of the Tulotoma Snail From Endangered to Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
reclassify the tulotoma snail (Tulotoma magnifica) from endangered to 
threatened, under the authority of the Endangered Species Act of 1973, 
as amended (Act). This proposed action is based on a review of the best 
available scientific and commercial data, which indicate that the 
endangered designation no longer correctly reflects the status of this 
snail. We have documented a substantial improvement in the species' 
distribution and numbers over the past 15 years, including the 
discovery of several populations that were unknown when the species was 
listed. Minimum flows and other conservation measures have been 
implemented below two dams in the Coosa River, improving habitat and 
resulting in the expansion of tulotoma snail numbers and range in the 
Coosa River. The Alabama Clean Water Partnership has also developed the 
Lower Coosa River Basin Management Plan to address nonpoint source 
pollution and watershed management issues in most Coosa River 
tributaries occupied by the tulotoma snail. While great strides have 
been made to improve the species status, additional efforts are 
required to address the remaining threats to the species. We are 
seeking comments from the public on this proposal.

DATES: We will accept comments received or postmarked on or before 
August 23, 2010. We must receive requests for public hearings, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section by August 6, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R4-
ES-2008-0119.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AW08; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Drive, Suite 222; Arlington, VA 
22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally

[[Page 35425]]

means that we will post any personal information you provide us (see 
the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Ray Aycock, Field Supervisor, Jackson 
Ecological Services Field Office, 6578 Dogwood View Parkway, Suite A 
Jackson, MS 39213-7856 (telephone 601/321-1122; facsimile 601/965-
4340). Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 800/877-8339, 
24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal be as 
accurate and effective as possible. Therefore, we are requesting 
comments from other concerned government agencies, the scientific 
community, industry, Tribes, or any other interested party concerning 
this proposed rule. We particularly seek comments concerning:
    (1) Biological, commercial, trade, or other relevant data 
concerning any threat (or lack thereof) to the tulotoma snail;
    (2) Additional information on the range, distribution, and 
population size of the tulotoma snail and its habitat;
    (3) The location of any additional populations of the tulotoma 
snail;
    (4) Data on tulotoma snail population trends; and
    (5) Current or planned activities within the geographic range of 
the tulotoma snail that may impact or benefit the species.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours at the Jackson Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT section).

Public Hearing

    The Act provides for one or more public hearings on this proposal, 
if we receive any requests for hearings. We must receive your request 
for a public hearing within 45 days after the date of this Federal 
Register publication (see DATES). Such requests must be made in writing 
and addressed to the Field Supervisor (see FOR FURTHER INFORMATION 
CONTACT section above).

Background

    The tulotoma snail (Tulotoma magnifica) is a gill-breathing, 
operculate snail in the family Viviparidae. Operculate means that the 
snail has a rounded plate that seals the mouth of the shell while the 
snail is inside. The shell is globular, reaching a size somewhat larger 
than a golf ball, and typically ornamented with spiral lines of knob-
like structures (Herschler et al. 1990, p. 815). Its adult size and 
ornamentation distinguish it from all other freshwater snails in the 
Coosa-Alabama River system. The tulotoma snail is normally referred to 
as simply the tulotoma in literature so from this point forward in this 
rule we will use this approach.
    The tulotoma was described from the Alabama River in 1834 by T.A. 
Conrad, and collection records indicate a historical range of around 
563 kilometers (km) (350 miles (mi)) in the Coosa and Alabama River 
drainages of Alabama (Herschler et al. 1990, pp. 815-817). Historical 
collection localities in the Coosa River System included numerous sites 
on the river itself as well as the lower reaches of several of its 
large tributaries in St. Clair, Calhoun, Talladega, Shelby, Chilto, 
Coosa, and Elmore Counties, Alabama (Herschler et al. 1990, pp. 815-
817). The tulotoma was only recorded from two collection localities in 
the Alabama River System, the type locality near Claiborne, Monroe 
County, Alabama, and Chilachee Creek southwest of Selma, Dallas County, 
Alabama (Herschler et al. 1990, p. 815).
    Tulotoma occur in cool, well-oxygenated, clean, free-flowing rivers 
and the lower portions of the rivers' larger tributaries (Herschler et 
al. 1990, p. 822). This species is generally found in riffles and 
shoals with moderate to strong currents, and has been collected at 
depths over 5 meters (m) (15 feet (ft)) (Hartfield 1991, p. 7). The 
species is strongly associated with boulder, cobble, and bedrock stream 
bottoms and is generally found clinging tightly to the underside of 
large rocks or between cracks in bedrock (Christman et al. 1996, p. 
28).
    Christman et al. (1996, pp. 45-59) studied the life history of 
tulotoma in the Coosa River below Jordan Dam, Elmore County, Alabama. 
Tulotoma produce live born offspring year round, but reproduction peaks 
during the months of May to July, and at sizes of about 3 to 5 
millimeters (mm) (0.1 to 0.2 inches (in)) height of last whorl (HLW) or 
coil in a tulotoma shell. They grow rapidly during their first year 
reaching sizes of 11 to 14 mm (0.4 to 0.5 in), with females producing 
an average of 16 offspring. Females that live beyond their second year 
grow more slowly, and produce an average 28 juveniles per year. 
Christman et al. (1996, p. 61) found that few tulotoma survived longer 
than 2 years of life in the lower Coosa River.
    At the time of listing in 1991, the tulotoma was known from five 
localized areas in the lower Coosa River drainage (56 FR 797; January 
9, 1991). These included approximately a 3-km (1.8-mi) reach of the 
lower Coosa River between Jordan Dam and the City of Wetumpka (Elmore 
County, Alabama), and short reaches of four tributaries: 2 km (1.2 mi) 
of Kelly Creek (St. Clair and Shelby Counties, Alabama), 4 km (2.4 mi) 
of Weogufka Creek, and 3 km (1.8 mi) of Hatchet Creek (Coosa County, 
Alabama), and from a single shoal on Ohatchee Creek (Calhoun County, 
Alabama) (Herschler et al. 1990, p. 819). Each river reach is 
considered a population. A population can contain one or more colonies. 
A colony is defined as the tulotoma found under one rock or several 
rocks in close proximity to each other. A site is considered a specific 
location within the river reach, where specific colonies are located.
    Spatial distribution and trends of these five tulotoma populations 
have been monitored for periods of 9 to 12 years (depending on the 
population) since 1991 (DeVries 2005, p. 3). The lower Coosa River 
population has expanded throughout a 10-km (6-mi) reach (Christman et 
al. 1996, pp. 23-25; DeVries 2005, p. 14; Hartfield 1991), and the 
species' numbers in this reach are estimated at over 100 million 
tulotoma (Christman et al. 1996, p. 59). Habitat in the Coosa River 
below Jordan Dam has improved and expanded due to implementation of a 
minimum flow regime below the dam and installation of an aeration 
system (Christman et al. 1996, p. 59, Grogan 2005, p. 3).
    The overall density of tributary populations has not been 
estimated; however, colony size and distribution of tulotoma within the 
tributaries has been monitored and appear to be stable within a 13.7-km 
(8.5-mi) reach of Weogufka Creek, a 14-km (8.8-mi) reach of Hatchet 
Creek, and a 5.8-km (3.6-mi) reach of Kelly Creek (DeVries 2005, pp.11-
13). Habitat conditions within these three tributaries appear to have 
remained stable since listing (DeVries

[[Page 35426]]

2005, p. 4; 2008, pp. 5-9). The Kelly Creek tulotoma population has 
expanded into an approximately 8-km (5-mi) reach of the middle Coosa 
River above and below the confluence of Kelly Creek (Garner 2003, 
Powell 2005, Lochamy 2005), apparently as a result of implementation of 
pulsing flows below Logan Martin Dam to improve dissolved oxygen levels 
(Krotzer 2008).
    No tulotoma have been rediscovered from the Ohatchee Creek shoal 
population for 15 years, and it is now believed to be extirpated 
(DeVries 2005, pp.10). Impacts of nonpoint source pollution at the 
Ohatchee shoal, including excessive sedimentation and algal growth, 
have been observed (Hartfield 1992).
    Since 1991, tulotoma populations have also been located at six 
additional locations, three in the Coosa River drainage, and three in 
the Alabama River. (DeVries 2005, p. 7; Garner 2003, 2006, 2008; 
Johnson 2008). In the lower Coosa River drainage the tulotoma has been 
discovered surviving in a 0.8-km (0.5-mi) reach of Choccolocco Creek, a 
0.4-km (0.25-mi) reach of Yellowleaf Creek, and about 2 km (1.2 mi) of 
Weoka Creek (DeVries 2005, pp. 10-13). The tulotoma population's range, 
colony size, and habitat in Choccolocco Creek have remained relatively 
stable since monitoring began in 1995 (DeVries 2005, p. 4). Tulotoma 
colony sizes in Weoka Creek have reached higher densities than any 
other tributary population; however, population trends have been 
monitored for only 3 years (DeVries 2005, p. 5). The Yellowleaf Creek 
tulotoma population is extremely localized and has not been monitored; 
however, occasional spot checks show the species continues to persist 
(Johnson 2006).
    The additional three new populations were discovered in the Alabama 
River. A single localized colony was discovered near the type locality 
in the lower Alabama River below Claiborne Lock and Dam, Monroe County, 
Alabama (Garner 2006). Additionally, dead tulotoma shells were found in 
appropriate habitat over a 1.6-km (1.0-mi) reach (Garner 2006). During 
the summer of 2008, two colonies were located near Selma, Dallas 
County, Alabama (Johnson 2008), and a single robust colony containing 
approximately 150 tulotoma was discovered below R.F. Henry Lock and 
Dam, Autauga-Lowndes Counties, Alabama (Garner 2008). Both juvenile and 
adult tulotoma were present at the three sites. A single localized 
colony was also discovered below Millers Ferry Lock and Dam, Wilcox 
County, Alabama (Powell 2008). For additional details of the expansion 
of the tulotoma range, see the ``Summary of Factors Affecting the 
Species'' discussion below.

Previous Federal Actions

    The proposed rule to list the tulotoma as an endangered species was 
published on July 11, 1990 (55 FR 28573). The final rule listing the 
tulotoma as an endangered species was published on January 9, 1991 (56 
FR 797). Recovery criteria for the tulotoma were outlined in the Mobile 
River Basin Aquatic Ecosystem Recovery Plan (U.S. Fish and Wildlife 
Service 2000). A 5-year review on the status of the tulotoma was 
completed on February 29, 2008, and can be found at: http://www.fws.gov/southeast/5yearReviews/5yearreviews/TulotomaSnail.pdf. 
Additional information regarding these previous Federal actions for the 
tulotoma can be obtained by consulting the species' regulatory profile 
found at: http://ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=G04X.

Recovery Achieved

    Recovery plans are not regulatory documents and are instead 
intended to provide guidance to the Service, States, and other partners 
on methods of minimizing threats to a listed species and improving its 
status, and on criteria that may be used to determine when recovery is 
achieved. In 1994, the recovery goal, criteria, and tasks for the 
tulotoma were first proposed in the Technical Draft Mobile River Basin 
Aquatic Ecosystem Recovery Plan (U.S. Fish and Wildlife Service 1994, 
p. 21). The Technical Draft Recovery Plan stated that the tulotoma 
could be reclassified to threatened status when an in-progress study 
documented a stable or increasing population size due to flow and 
habitat improvements in the Coosa River below Jordan Dam.
    The 1994 draft plan received wide review and interest, which 
resulted in the formation of the Mobile River Aquatic Ecosystem 
Coalition (Ecosystem Coalition), formed by representatives of State and 
Federal agencies, and business and citizen groups from throughout the 
Mobile River Basin (Basin). The first task of the Ecosystem Coalition 
was to produce a draft of an ecosystem plan addressing all listed 
aquatic species in the Basin. By the time the final Mobile River Basin 
Aquatic Ecosystem Recovery Plan (Ecosystem Plan) was published (U.S. 
Fish and Wildlife Service 2000) studies had been completed showing that 
status of tulotoma in the Coosa River had improved considerably due to 
habitat improvements. Therefore, the recovery criteria for 
reclassification of tulotoma to threatened status were modified to 
recommend reclassification to threatened status upon completion of a 
status review confirming a stable or increasing population of tulotoma 
in the Coosa River below Jordan Dam (U.S. Fish and Wildlife Service 
2000, p. 21).
    Our recent 5-year review of the tulotoma has documented an increase 
in extent and size of tulotoma populations in the Coosa River below 
Jordan Dam, an increase in range of 3 of 4 tributary populations known 
at the time of listing, and discovery of 6 previously unknown extant 
populations (U.S. Fish and Wildlife Service 2008).
    The 2000 Ecosystem Plan addressed protecting habitat integrity and 
improving habitat quality, reducing impacts from permitted activities, 
promoting watershed stewardship, conducting basic research, 
establishing propagation programs if necessary, and monitoring species 
population size and distribution. Some recovery actions accomplished in 
the Coosa River under this plan include the establishment of minimum 
flows below Jordan Dam to improve habitat conditions in that reach, and 
the implementation of pulsing flows below Logan Martin Dam to improve 
dissolved oxygen in that reach. Watershed management plans have also 
been developed to address nonpoint source pollution in the lower Coosa 
Basin and the Alabama River Basin. These and other recovery 
accomplishments addressing threats to the tulotoma are presented in 
more detail in the ``Summary of Factors Affecting the Species,'' below.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing, reclassifying, or removing 
species from listed status.
    Under section 3 of the Act, a species is ``endangered'' if it is in 
danger of extinction throughout all or a significant portion of its 
range and is ``threatened'' if it is likely to become endangered within 
the foreseeable future throughout all or a significant portion of its 
range. ``Range'' refers to the range in which the species currently 
exists and is discussed further in the Conclusion section of this 
proposal below.
    ``Foreseeable future'' is determined by the Service on a case-by-
case basis, taking into consideration a variety of species-specific 
factors such as lifespan, genetics, breeding behavior, demography, 
threat projection timeframes, and environmental variability. The 
average lifespan of a tulotoma is about two years, with

[[Page 35427]]

females becoming fertile at the end of their first year. Tulotoma 
produce live-born offspring year-round; however, reproduction peaks in 
late spring and early summer. In monitoring of all tulotoma 
populations, multiple cohorts have been found which suggests 
demographic stability over time. As discussed further below, the 
primary threats to the tulotoma have been the destruction, 
modification, or curtailment of its habitat or range (Factor A), the 
inadequacies of regulatory mechanisms (Factor D), and other natural or 
manmade factors (Factor E). These threats can occur during variable 
timeframes, ranging from specific activities which can arise at any 
time, to the Alabama Department of Environmental Management's 5-year 
surface water quality assessment program, to the Federal Energy 
Regulatory Commission's 50-year hydroelectric certification of dams. 
For the purposes of this proposed rule, we define foreseeable future as 
a 20-year period, which encompasses 20 generations of tulotoma.
    We evaluate whether the species must be listed as endangered or 
threatened because of one or more of the five factors described in 
section 4(a)(1) of the Act. For species that are already listed as 
endangered or threatened, we evaluate both the threats currently facing 
the species and the threats that are reasonably likely to affect the 
species in the foreseeable future following the delisting or 
downlisting and the removal or reduction of the Act's protections. The 
following analysis examines all five factors currently affecting or 
that are likely to affect tulotoma within the foreseeable future.
    For the purposes of this analysis, we will evaluate all five 
factors currently affecting, or that are likely to affect, the tulotoma 
to determine whether the currently listed species is threatened or 
endangered. The five factors listed under section 4(a)(1) of the Act 
and their application to the tulotoma are:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. When listed in 1991, the tulotoma 
was believed to inhabit less than 2 percent of its 563-km (350-mi) 
historical range. A Coosa River population of tulotoma was known to 
survive below Jordan Dam. Populations were also known from four Coosa 
River tributaries: Kelly, Weogufka, Hatchet, and Ohatchee Creeks. All 
of these populations were isolated by dams and impounded waters and 
considered to be vulnerable to nonpoint source pollution. Population 
trends were unknown, but were believed to be possibly declining.
    At the time of listing, hydropower discharges were limiting the 
range and abundance of tulotoma to only a 3-km (1.8-mi) reach of the 
Coosa River below Jordan Dam. Water discharges for hydropower purposes 
were released from Jordan Dam for only 2.25 hours per day, and flow 
consisted of only dam seepage at other times. As a result of the low 
water quantity, water quality problems, particularly low dissolved 
oxygen and elevated temperatures, were a significant limiting factor to 
tulotoma below Jordan Dam. In 1992, the Alabama Power Company (APC) 
established minimum flows in the Coosa River below Jordan Dam, and 
later installed a draft tube aeration system to ensure dissolved oxygen 
levels are maintained at or above State standards (Grogan 2005, pp. 2-
3). The APC also initiated studies to document the range, numbers, 
demographics, and life history of tulotoma in the reach of the Coosa 
River below Jordan Dam and to determine the effects of the new minimum 
flow regime (Christman et al. 1996, p. 18). Other studies were also 
conducted to monitor long-term population trends in this reach of river 
(e.g., De Vries 2005). As a result, numerous tulotoma colonies have 
been discovered or become established in the upper portion of the 
reach, and in the downstream areas the tulotoma has extended its range 
laterally within the channel in habitats made available by the constant 
minimum flows. Thousands of colonies consisting of millions of tulotoma 
now inhabit a 10-km (6-mi) reach of the Coosa River below the Jordan 
Dam (Christman et al. 1996, p. 59; DeVries 2004, pp. 8-10, 2005 p. 14).
    In 1991, tulotoma were also known to occur in 2 km (1.2 mi) of 
Kelly Creek, 4 km (2.4 mi) of Weogufka Creek, 3 km (1.8 mi) of Hatchet 
Creek, and from a single shoal on Ohatchee Creek (Herschler et al. 
1990, p. 819). These four known tributary populations of tulotoma were 
considered to be extremely localized, vulnerable to water quality or 
channel degradation, and susceptible to decline and extirpation from 
effects of nonpoint source pollution and stochastic events within their 
respective watersheds. Studies and surveys since listing have extended 
the known range of three of these populations, and tulotoma is now 
known to occur in a 13.7-km (8.5-mi) reach of Weogufka Creek, a 14-km 
(8.8-mi) reach of Hatchet Creek, and a 5.8-km (3.6-mi) reach of Kelly 
Creek (DeVries 2005 pp. 11-13). Tulotoma colony sizes within these 
three populations have remained stable over a 12-year period (DeVries 
2005, pp. 11-13). The Kelly Creek tulotoma population has expanded into 
an approximately 8-km (5-mi) reach of the middle Coosa River above and 
below the confluence of Kelly Creek (Garner 2003, Powell 2005, Lochamy 
2005), apparently as a result of implementation of pulsing flows below 
Logan Martin Dam to improve dissolved oxygen levels (Krotzer 2008). No 
tulotoma have been relocated from the Ohatchee Creek shoal population 
for 15 years, and it is now believed to be extirpated (DeVries 2005, 
p.10).
    Although the Ohatchee Creek population has apparently become 
extirpated (DeVries 2005, p. 10), other tributary stream surveys have 
located three populations in the Lower Coosa River drainage that were 
unknown at the time of listing. Tulotoma are now known from a 0.8-km 
(0.5-mi) reach of Choccolocco Creek, a 0.4-km (0.25-mi) reach of 
Yellowleaf Creek, and about 2 km (1.2 mi) of Weoka Creek (DeVries 2005, 
pp. 10-13). Although very localized, the Choccolocco Creek population 
has remained stable in colony size and numbers over the past decade 
(DeVries 2005, pp. 10-11). The Weoka Creek population has only been 
sampled twice since its discovery; however, tulotoma colonies are 
abundant in the stream reach, and average colony size is larger than 
any other tributary population (DeVries 2005, pp.13-14.) The Yellowleaf 
Creek population is localized, small, and has not been routinely 
monitored; however, occasional spot checks show the species continues 
to persist (Johnson 2006).
    Tulotoma colonies have also been discovered at three locations in 
the Alabama River: Near the type locality in Monroe County, Alabama 
(Garner 2006); a locality in Dallas County, Alabama (Johnson 2008); and 
at a location in Autauga-Lowndes Counties, Alabama (Garner 2008). The 
presence of juvenile and adult tulotoma at the three sites indicates 
that the newly discovered colonies are self-maintaining. In addition, a 
single localized colony was also recently discovered in Wilcox County, 
Alabama (Powell 2008).
    The 1991 listing rule (56 FR 797) noted the vulnerability of 
localized tributary populations to nonpoint source pollution, 
specifically siltation from construction activities. The extirpation of 
the Ohatchee Creek population is suspected due to sedimentation and 
nutrient enrichment from nonpoint sources in the watershed. Although 
other monitored tulotoma populations have remained stable or expanded 
since listing, they remain

[[Page 35428]]

vulnerable to water and habitat quality degradation, particularly in 
the tributaries. Lower Choccolocco Creek is on the State list of 
impaired waters for organic pollution due to contaminated sediments 
(Alabama Department of Environmental Management (ADEM) 2006 p. 5). 
Yellowleaf Creek and several other lower Coosa River watersheds have 
been identified as High Priority Watersheds (i.e., vulnerable to 
degradation) by the Alabama Clean Water Partnership (ACWP) (ACWP 2005a, 
Chapter 12) due to the high potential of nonpoint source pollution 
associated with expanding human population growth rates and 
urbanization. For example, the headwaters of Yellowleaf Creek are about 
5 km (3 mi) southeast of the greater metropolitan area surrounding 
Birmingham, Alabama, and the watershed is highly dissected by county 
roads. High sediment discharge has been identified as an issue in Kelly 
Creek (ACWP in prep., p. 43), and potential fecal coliform problems 
have been documented at several locations in Choccolocco Creek (ACWP in 
prep., p. 38). However, the ACWP has also developed locally endorsed 
and supported plans to address nonpoint source pollution and maintain 
and improve water quality in the lower Coosa River Basin (ACWP 2005a, 
pp. 3.1-3.48) and in the middle Coosa River Basin (AWCP in prep., pp. 
49-50) (see Factor D section below for further detail on monitoring 
plans). Full implementation of current programs and plans will reduce 
the vulnerability of tributary populations to nonpoint source 
pollution.
    In summary, the range of tulotoma has increased from 6 populations 
occupying 2 percent of its historical range in 1991, to 11 populations 
occupying 10 percent of the historical range. In addition, these 
populations are found in a wide range of historically occupied 
habitats, including large coastal plain river, large high-gradient 
rivers, and multiple upland tributary streams. Populations known at the 
time of listing have been monitored and, with the exception of Ohatchee 
Creek, found to be stable or increasing. Four of the six populations 
discovered since 1991 have been monitored for 2 to 12 years. The 
Choccolocco Creek population has remained stable for 12 years. The 
Yellowleaf Creek population has not been routinely monitored and we 
cannot determine a population trend beyond mere presence or absence; 
however, occasional spot checks show the species continues to persist 
(Johnson 2006). The Weoka Creek and Lower Alabama River populations 
have been observed and monitored for a period of 4 and 2 years, 
respectively; however, this is not a sufficient amount of time to be 
able to determine a population trend.
    Habitat-related threats have been addressed in the Coosa River 
through establishing minimum flows or pulsing flows below Jordan and 
Logan Martin Dam, respectively. Habitat conditions have improved; 
occupied habitat has expanded in the Coosa River below Jordan Dam; and 
tulotoma numbers are now estimated at greater than 100 million 
individuals. The ranges of tulotoma populations in Kelly, Weogufka, and 
Hatchet Creek have expanded 2 to 5 fold since listing. Tulotoma colony 
densities within these populations have remained stable or expanded.
    Tulotoma remains extirpated from approximately 90 percent of its 
historical range, and surviving populations remain isolated, localized, 
and vulnerable to nonpoint source pollution. These conditions are 
expected to continue for the foreseeable future. While monitored 
populations have persisted and expanded over the past two decades, and 
a program to address nonpoint source pollution in the Coosa and Alabama 
rivers and their tributaries has been established by ACWP and ADEM, the 
tulotoma continues to be threatened by the destruction, modification, 
or curtailment of its habitat and range such that the tulotoma is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Overutilization was not a threat when the species 
was listed in 1991 but the final listing rule noted the vulnerability 
and susceptibility of the localized populations to overcollecting 
should the tulotoma with its ornate shell become important to the 
commercial pet trade (56 FR 797; January 9, 1991). However, there has 
been no evidence to date that any commercial use in the pet trade 
industry has occurred.
    Overutilization for any purpose is not currently considered a 
threat, and is not anticipated to emerge as a threat within the 
foreseeable future.
    C. Disease or predation. The January 9, 1991, final rule (56 FR 
797) listing the tulotoma found no evidence of disease or predation as 
a threat, and we are not aware of any evidence since listing that 
suggests tulotoma is threatened by disease or predation or likely to 
become so within the foreseeable future.
    D. The inadequacy of existing regulatory mechanisms. At the time of 
the 1991 listing, existing laws were considered inadequate to protect 
the tulotoma. It was not officially recognized by Alabama as needing 
any special protection or given any special consideration under other 
environmental laws when project impacts were reviewed.
    Tulotoma are now protected under State law from take or commerce. 
The Alabama Department of Conservation and Natural Resources (ADCNR) 
recognize tulotoma as a Species of Highest Conservation Concern 
(Mirarchi et al. 2004, p. 120; ADCNR 2005, p 301). The persistence of 
tulotoma and the improvement of some populations over time is an 
indication that existing regulatory mechanisms are now providing some 
measure of consideration and protection of the species. For example, 
the Alabama Total Maximum Daily Load (TMDL) Program has been 
implemented to identify and reduce water pollution in impaired waters 
(ADEM 2007). Under this program, Choccolocco Creek has been identified 
as impaired, and plans are under development to remove contaminated 
sediments. The Alabama Clean Water Partnership (ACWP) has been 
organized to educate and coordinate public participation in water 
quality issues, particularly nonpoint source pollution and 
implementation of TMDLs (http://www.cleanwaterpartnership.org). The 
ACWP, in coordination with ADEM, has developed a Lower Coosa River 
Basin Management Plan and an Alabama River Basin Management Plan to 
address nonpoint source pollution and watershed management issues (AWCP 
2005a, p. I; AWCP 2005b, p. xv-xvii). The Lower Coosa Plan includes the 
watersheds of the Yellowleaf, Weogufka, Hatchet, and Weoka Creek 
populations, along with the Coosa River below Jordan Dam, while the 
Alabama River Basin Plan includes the watersheds of the newly 
discovered Alabama River tulotoma population. A draft Middle Coosa 
River Basin Management Plan, which includes Choccolocco and Kelly 
Creeks, is under development (AWCP in prep., pp. i, v-vi, 43). These 
plans are a mechanism to identify water quality problems in the 
drainages, educate the public, and coordinate activities to maintain 
and improve water quality in the basins; however, they have yet to be 
fully implemented.
    Federal status under the Act continues to provide additional 
protections to the tulotoma not available under State laws. For 
example, during recent water shortages due to an

[[Page 35429]]

extended drought in the Southeast, emergency consultation under section 
7 of the Act was conducted between the U.S. Fish and Wildlife Service, 
Federal Energy Regulatory Commission (FERC), and APC representatives on 
efforts to conserve water by decreasing minimum flows below Jordan Dam. 
The consultation identified measures to be implemented to minimize 
impacts to tulotoma and monitor the effects of the reductions (e.g., 
FERC 2007, pp 1-8). Therefore, but for the protections of the Act, the 
tulotoma is still threatened by the inadequacies of existing regulatory 
mechanisms such that it is likely to become an endangered species 
within the foreseeable future throughout all or a significant portion 
of its range.
    E. Other natural or manmade factors affecting its continued 
existence. Random events such as droughts and chemical spills 
(stochastic events), and genetic drift were identified in the final 
listing rule as threats to the species due to its restricted range, 
isolation of the populations, and the inability for genetic exchange 
between populations to occur. The tulotoma's restricted range and 
isolation remain the greatest cause of concern for the species' 
continued existence, and are factors that further compound the effects 
of the other threats identified above. Each population is vulnerable to 
changes in land use within their respective watershed that might result 
in detrimental impacts (e.g., urbanization and increased nonpoint 
pollution). All populations also remain independently vulnerable to 
stochastic threats such as droughts or chemical spills. These threats, 
however, have been somewhat offset by the extension of the ranges of 
the populations known at listing, and by the discovery of additional 
populations within the historical range of the species.
    In general, larger populations are more resilient to stochastic 
events than extremely small populations. For example, due to the 
extended 2007 drought in the Southeast, minimum flows below Jordan Dam 
were ramped down in order to conserve water in upstream reservoirs for 
water supply and hydroelectric production. The reduction in flows 
resulted in the stranding and estimated mortality of more than 73,000 
tulotoma (APC 2008, 43). Although this loss was relatively 
insignificant in a population estimated at more than 100 million 
individual tulotoma, it demonstrates the vulnerability of range-
restricted populations to stochastic events. Other drought impacts 
noted below Jordan Dam included high amounts of suspended algal 
material and fine sediment deposition (Powell 2008).
    The documentation of more tulotoma populations distributed in 
different watersheds makes range-wide extinction from localized 
activities or stochastic threats less likely. In addition, although 
populations remain isolated from each other, the robust size of most 
populations reduces the threat of genetic drift and bottlenecks. 
However, each tulotoma population remains vulnerable to natural or 
human-induced stochastic events within its respective watershed, as 
demonstrated by the loss of the Ohatchee Creek population. Assessments 
of five tulotoma tributary populations following the severe 2007 
drought found little to no changes in distribution and density of the 
tulotoma in Kelly, Weogufka, Hatchet, or Choccolocco Creeks (DeVries 
2008, p. 3-15). However, tulotoma recruitment was not observed in the 
Choccolocco Creek population (DeVries 2008, pp. 9-11), and colony 
densities had declined at Weoka Creek (DeVries 2008, p. 15). The 
assessment was unable to determine if the Weoka Creek tulotoma decline 
was attributed to the drought or human impacts (DeVries 2008, p. 15). 
Therefore, Factor E is still a threat to the tulotoma such that it is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.

Conclusion

    We have carefully assessed the best scientific and commercial data 
available regarding the past, present, and future threats faced by the 
tulotoma in preparing this proposed rule. As identified above, three of 
the five listing factors continue to pose a known threat to the 
tulotoma: The present or threatened destruction, modification, or 
curtailment of its habitat or range; inadequacy of regulatory 
mechanisms; and other natural or manmade factors affecting its 
continued existence.
    The Mobile River Basin Aquatic Ecosystem Recovery Plan (U.S. Fish 
and Wildlife Service 2000) criteria state that the tulotoma should be 
considered for reclassification from endangered to threatened status 
when an updated status review of the species was completed, and 
confirmation made of a stable or increasing tulotoma population in the 
Coosa River below Jordan Dam. The 5-year review of the status of 
tulotoma has documented an increase in extent and size of tulotoma 
populations in the Coosa River, Kelly Creek, Weogufka Creek, and 
Hatchet Creek (U.S. Fish and Wildlife Service 2008). Threats to the 
species have also been reduced due to habitat improvements in the Coosa 
River, the identification of six drainage populations of the species 
that were unknown at the time of listing, development of watershed 
management plans, and protection of tulotoma under State laws. However, 
delisting criteria have not been fulfilled for the tulotoma as 
watershed plans that protect and monitor water quality and habitat 
quality in occupied watersheds have not been fully implemented.

Significant Portion of the Range Analysis

    Having determined that the tulotoma meets the definition of 
threatened, we must next consider whether there are any significant 
portions of its range that are in danger of extinction. On March 16, 
2007, a formal opinion was issued by the Solicitor of the Department of 
the Interior, ``The Meaning of `In Danger of Extinction Throughout All 
or a Significant Portion of Its Range'' (U.S. DOI 2007). We have 
summarized our interpretation of that opinion and the underlying 
statutory language below. A portion of a species' range is significant 
if it is part of the current range of the species and is important to 
the conservation of the species because it contributes meaningfully to 
the representation, resiliency, or redundancy of the species. The 
contribution must be at a level such that its loss would result in a 
decrease in the ability to conserve the species.
    The first step in determining whether a species is threatened or 
endangered in a significant portion of its range is to identify any 
portions of the range that warrant further consideration. The range of 
a species can theoretically be divided into portions in an infinite 
number of ways. However, there is no purpose to analyzing portions of 
the range that are not reasonably likely to be significant and 
threatened or endangered. To identify only those portions that warrant 
further consideration, we determine whether there is substantial 
information indicating that (1) the portions may be significant and (2) 
the species may be in danger of extinction there or likely to become so 
within the foreseeable future. In practice, a key part of this analysis 
is whether the threats are geographically concentrated in some way. If 
the threats to the species are essentially uniform throughout its 
range, no portion is likely to warrant further consideration. If any 
concentration of threats applies only to portions of the range that are 
unimportant to the conservation of the species, such portions will not 
warrant further consideration.
    If we identify any portions that warrant further consideration, we 
then determine whether in fact the species is

[[Page 35430]]

threatened or endangered in any significant portion of its range. 
Depending on the biology of the species, its range, and the threats it 
faces, it may be more efficient in some cases for the Service to 
address the significance question first, and in others the status 
question first. Thus, if the Service determines that a portion of the 
range is not significant, the Service need not determine whether the 
species is threatened or endangered there; conversely, if the Service 
determines that the species is not threatened or endangered in a 
portion of its range, the Service need not determine if that portion is 
significant.
    The terms ``resiliency,'' ``redundancy,'' and ``representation'' 
are intended to be indicators of the conservation value of portions of 
the range. Resiliency of a species allows the species to recover from 
periodic disturbance. A species will likely be more resilient if large 
populations exist in high-quality habitat that is distributed 
throughout the range of the species in such a way as to capture the 
environmental variability within the range of the species. It is likely 
that the larger size of a population will help contribute to the 
viability of the species. Thus, a portion of the range of a species may 
make a meaningful contribution to the resiliency of the species if the 
area is relatively large and contains particularly high-quality habitat 
or if its location or characteristics make it less susceptible to 
certain threats than other portions of the range. When evaluating 
whether or how a portion of the range contributes to resiliency of the 
species, it may help to evaluate the historical value of the portion 
and how frequently the portion is used by the species. In addition, the 
portion may contribute to resiliency for other reasons--for instance, 
it may contain an important concentration of certain types of habitat 
that are necessary for the species to carry out its life-history 
functions, such as breeding, feeding, migration, dispersal, or 
wintering.
    Redundancy of populations may be needed to provide a margin of 
safety for the species to withstand catastrophic events. This does not 
mean that any portion that provides redundancy is a significant portion 
of the range of a species. The idea is to conserve enough areas of the 
range such that random perturbations in the system act on only a few 
populations. Therefore, each area must be examined based on whether 
that area provides an increment of redundancy that is important to the 
conservation of the species.
    Adequate representation insures that the species' adaptive 
capabilities are conserved. Specifically, the portion should be 
evaluated to see how it contributes to the genetic diversity of the 
species. The loss of genetically based diversity may substantially 
reduce the ability of the species to respond and adapt to future 
environmental changes. A peripheral population may contribute 
meaningfully to representation if there is evidence that it provides 
genetic diversity due to its location on the margin of the species' 
habitat requirements.
    For the tulotoma we applied the process described above to 
determine whether any portions of the range warranted further 
consideration for an endangered status. We concluded through the five-
factor analysis, in particular Factors A, D, and E that the existing or 
potential threats are consistent throughout its range, and there is no 
portion of the range where one or more threats is geographically 
concentrated. Because the low level of threats to the species is 
essentially uniform throughout its range, no portion warrants further 
consideration.
    Habitat quality is variable throughout the range of the tulotoma. 
However, the basic biological components necessary for the tulotoma to 
complete its life history are present throughout the areas currently 
occupied by each population, and there is no particular location or 
area that provides a unique or biologically significant function 
necessary for tulotoma recovery. The quantity of habitat available to 
each surviving population of tulotoma is also variable. Although the 
threats identified above are common to all areas currently occupied by 
tulotoma, the magnitude of the threats are likely higher in the stream 
reaches where tulotoma colonies are currently extremely localized, such 
as Yellowleaf and Choccolocco creeks and the Alabama River. However, 
due to habitat limitations and the resulting small range of tulotoma in 
each of these stream reaches (each less than 2 percent of currently 
occupied range) they are not significant to the species in a noticeable 
or measurable way. Therefore, we have determined that there are no 
portions of the range that qualify as a significant portion of the 
range in which the tulotoma is in danger of extinction.
    In summary, based on habitat improvements, the numbers of tulotoma 
populations now known (8 discrete drainage populations), the robust 
size of most of these populations (numbering in the thousands to tens 
of millions of individual tulotoma), the stability of monitored 
populations over the past 15 years, and current efforts toward 
watershed quality protection, planning, and monitoring, we have 
determined that none of the existing or potential threats, either alone 
or in combination with others, are likely to cause the tulotoma to 
become ``in danger of extinction in a significant portion of its 
range.'' We have determined that threats still exist to the tulotoma, 
specifically as a result of water quality and quantity issues as 
discussed in Factors A, D, and E. Due to these continued threats, we 
believe the tulotoma meets the definition of threatened, and, 
therefore, we are proposing to downlist its status from endangered to 
threatened under the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing increases public awareness of 
threats to the tulotoma, and promotes conservation actions by Federal, 
State, and local agencies, private organizations, and individuals. The 
Act provides for possible land acquisition and cooperation with the 
States, and provides for recovery planning and implementation. The 
protection required of Federal agencies and the prohibitions against 
taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to the tulotoma. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. If a Federal action may affect the 
tulotoma or its habitat, the responsible Federal agency must consult 
with the Service to ensure that any action authorized, funded, or 
carried out by such agency is not likely to jeopardize the continued 
existence of the tulotoma. Federal agency actions that may require 
consultation include, but are not limited to, the carrying out or the 
issuance of permits for reservoir construction, stream alterations, 
discharges, wastewater facility development, water withdrawal projects, 
pesticide registration, mining, and road and bridge construction.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
wildlife. These prohibitions, codified at 50 CFR 17.21 and 50 CFR 
17.31, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (includes harm, harass, and 
pursue, hunt, shoot, wound, kill, trap, capture

[[Page 35431]]

or collect, or to attempt to engage in any such conduct), import or 
export, ship in interstate commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any listed species of wildlife. It is also illegal to possess, sell, 
deliver, carry, transport, or ship any such wildlife that has been 
taken illegally. Certain exceptions apply to Service agents and agents 
of State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.32. Such permits are 
available for scientific purposes, to enhance the propagation or 
survival of the species, and for incidental take in the course of 
otherwise lawful activities. For threatened species, permits are also 
available for zoological exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act.
    Questions regarding whether specific activities will constitute a 
violation of section 9 of the Act should be directed to the U.S. Fish 
and Wildlife Service, Ecological Services Office, 1208-B Main Street, 
Daphne, Alabama 36526 (telephone 251/441-5181). Requests for copies of 
the regulations regarding listed species and inquiries about 
prohibitions and permits may be addressed to the U.S. Fish and Wildlife 
Service, Ecological Services Division, 1875 Century Boulevard, Suite 
200, Atlanta, Georgia 30345 (telephone 404/679-7217, facsimile 404/679-
7081).

Effects of This Rule

    This rule, if made final, would revise 50 CFR 17.11(h) to 
reclassify the tulotoma from endangered to threatened on the List of 
Endangered and Threatened Wildlife. However, this reclassification does 
not significantly change the protection afforded this species under the 
Act. Anyone taking, attempting to take, or otherwise possessing a 
tulotoma, or parts thereof, in violation of section 9 is subject to a 
penalty under section 11 of the Act. Pursuant to section 7 of the Act, 
all Federal agencies must ensure that any actions they authorize, fund, 
or carry out are not likely to jeopardize the continued existence of 
the tulotoma.
    Should this rule become final, recovery objectives and criteria for 
tulotoma will be revised in the Recovery Plan. Recovery actions 
directed at the tulotoma will continue to be implemented as outlined in 
the current Recovery Plan (U.S. Fish and Wildlife Service 2000), 
including: (1) Protecting habitat integrity and quality; (2) informing 
the public about recovery needs of tulotoma; (3) conducting basic 
research on the tulotoma and applying the results toward management and 
protection of the species and its habitats; (4) identifying 
opportunities to extend the range of the species; and (5) monitoring 
the populations.
    Finalization of this proposed rule would not constitute an 
irreversible commitment on our part. Reclassification of the tulotoma 
to endangered status would be possible if changes occur in management, 
population status, habitat, or other actions that would detrimentally 
affect the populations or increase threats to the species.

Peer Review

    In accordance with our policy published on July 1, 1994 (50 FR 
34270), we will solicit the expert opinions of at least three 
appropriate and independent specialists for peer review of this 
proposed rule. The purpose of such review is to ensure that decisions 
are based on scientifically sound data, assumptions, and analyses. We 
will send peer reviewers copies of this proposed rule immediately 
following publication in the Federal Register. We will invite peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed downlisting. We will 
summarize the opinions of these reviewers in the final decision 
document, and we will consider their input, and any additional 
information we receive, as part of our process of making a final 
decision on the proposal. Such communication may lead to a final 
regulation that differs from this proposal.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Required Determinations

Paperwork Reduction Act of 1995

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.), require that Federal agencies obtain approval from OMB 
before collecting information from the public. This proposed rule does 
not contain any new collections of information that require approval by 
OMB under the Paperwork Reduction Act. This proposed rule will not 
impose recordkeeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment or Environmental Impact Statement, as defined in the 
National Environmental Policy Act of 1969 (42 USC 4321 et seq.), in 
connection with regulations adopted pursuant to section 4(a) of the 
Endangered Species Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244).

Government-to-Government Relationship With Tribes

    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, and the Department 
of 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. We have determined that 
there are no tribal lands affected by this proposal.

Energy Supply, Distribution or Use (E.O. 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed rule is 
not expected to significantly affect energy supplies, distribution, and 
use. Therefore, this

[[Page 35432]]

action is not a significant energy action and no Statement of Energy 
Effects is required.

References Cited

    A complete list of references cited is available upon request from 
the Jackson, Mississippi Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT section).

Author

    The primary author of this document is Paul Hartfield, Jackson, 
Mississippi Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Therefore, for the reasons stated in the preamble, we propose to 
amend part 17, subchapter B of chapter I, title 50 of the Code of 
Federal Regulations, as follows:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 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.

    2. Amend Sec.  17.11(h) by revising the entry in the List of 
Endangered and Threatened Wildlife for ``Snail, tulotoma'' under SNAILS 
to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                       When       Critical     Special
                                                           Historic  range       endangered or         Status         listed      habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              SNAILS
 
                                                                      * * * * * * *
Snail, tulotoma..................  Tulotoma magnifica..  U.S.A. (AL)........  Entire.............  T                       412           NA           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    Dated: May 13, 2010.
Daniel M. Ashe,
Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-14708 Filed 6-21-10; 8:45 am]
BILLING CODE 4310-55-P