On page 44865 of Federal Register document 2011-14060, published July 27, 2011 (76 FR 44865), in the third column, under the section titled DATES , second paragraph, “August 7, 2011” is corrected to read “August 17, 2011.” Also, on page 44866 of the same document, in the first column, the last bulleted item before the section titled FOR FURTHER INFORMATION CONTACT is removed and the following bulleted item is added in its place:

• Federal Rulemaking Web site: Public comments and supporting materials related to the proposed rule and proposed draft guidance document can be found at http://www.regulations.gov by searching on Docket ID NRC-2009-0079 for the proposed rule and Docket ID NRC-2011-0080 for the proposed draft guidance document.

The Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the Medical Device Amendments of 1976 (the 1976 amendments) (Pub. L. 94-295), the Safe Medical Devices Act of 1990 (the SMDA) (Pub. L. 101-629), and the Food and Drug Administration Modernization Act of 1997 (FDAMA) (Pub. L. 105-115), the Medical Device User Fee and Modernization Act of 2002 (Pub. L. 107-250), the Medical Devices Technical Corrections Act (Pub. L. 108-214), and the Food and Drug Administration Amendments Act of 2007 (Pub. L. 110-85), establish a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

Under section 513 of the FD&C Act, devices that were in commercial distribution before the enactment of the 1976 amendments, May 28, 1976 (generally referred to as preamendments devices), are classified after FDA has: (1) Received a recommendation from a device classification panel (an FDA advisory committee); (2) published the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.

Devices that were not in commercial distribution prior to May 28, 1976 (generally referred to as postamendments devices) are automatically classified by section 513(f) of the FD&C Act into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and 21 CFR part 807.

A preamendments device that has been classified into class III may be marketed by means of premarket notification procedures (510(k) process) without submission of a PMA until FDA issues a final regulation under section 515(b) of the FD&C Act (21 U.S.C. 360e(b)) requiring premarket approval. Section 515(b)(1) of the FD&C Act (21 U.S.C. 360e(b)(1)) establishes the requirement that a preamendments device that FDA has classified into class III is subject to premarket approval. A preamendments class III device may be commercially distributed without an approved PMA or a notice of completion of a PDP until 90 days after FDA issues a final rule requiring premarket approval for the device, or 30 months after final classification of the device under section 513 of the FD&C Act, whichever is later. Also, a preamendments device subject to the rulemaking procedure under section 515(b) of the FD&C Act is not required to have an approved investigational device exemption (IDE) (see 21 CFR part 812) contemporaneous with its interstate distribution until the date identified by FDA in the final rule requiring the submission of a PMA for the device. At that time, an IDE is required only if a PMA has not been submitted or a PDP completed.

Section 515(b)(2)(A) of the FD&C Act provides that a proceeding to issue a final rule to require premarket approval shall be initiated by publication of a notice of proposed rulemaking containing: (1) The regulation; (2) proposed findings with respect to the degree of risk of illness or injury designed to be eliminated or reduced by requiring the device to have an approved PMA or a declared completed PDP and the benefit to the public from the use of the device; (3) an opportunity for the submission of comments on the proposed rule and the proposed findings; and (4) an opportunity to request a change in the classification of the device based on new information relevant to the classification of the device.

Section 515(b)(2)(B) of the FD&C Act provides that if FDA receives a request for a change in the classification of the device within 15 days of the publication of the notice, FDA shall, within 60 days of the publication of the notice, consult with the appropriate FDA advisory committee and publish a notice denying the request for change in reclassification or announcing its intent to initiate a proceeding to reclassify the device under section 513(e) of the FD&C Act. Section 515(b)(3) of the FD&C Act provides that FDA shall, after the close of the comment period on the proposed rule and consideration of any comments received, issue a final rule to require premarket approval or publish a document terminating the proceeding together with the reasons for such termination. If FDA terminates the proceeding, FDA is required to initiate reclassification of the device under section 513(e) of the FD&C Act, unless the reason for termination is that the device is a banned device under section 516 of the FD&C Act (21 U.S.C. 360f).

If a proposed rule to require premarket approval for a preamendments device is finalized, section 501(f)(2)(B) of the FD&C Act (21 U.S.C. 351(f)(2)(B)) requires that a PMA or notice of completion of a PDP for any such device be filed within 90 days of the date of issuance of the final rule or 30 months after the final classification of the device under section 513 of the FD&C Act, whichever is later. If a PMA or notice of completion of a PDP is not filed by the later of the two dates, commercial distribution of the device is required to cease since the device would be deemed adulterated under section 501(f) of the FD&C Act.

The device may, however, be distributed for investigational use if the manufacturer, importer, or other sponsor of the device complies with the IDE regulations. If a PMA or notice of completion of a PDP is not filed by the later of the two dates, and the device does not comply with IDE regulations, the device is deemed to be adulterated within the meaning of section 501(f)(1)(A) of the FD&C Act, and subject to seizure and condemnation under section 304 of the FD&C Act (21 U.S.C. 334) if its distribution continues. Shipment of devices in interstate commerce will be subject to injunction under section 302 of the FD&C Act (21 U.S.C. 332), and the individuals responsible for such shipment will be subject to prosecution under section 303 of the FD&C Act (21 U.S.C. 333). In the past, FDA has requested that manufacturers take action to prevent the further use of devices for which no PMA or PDP has been filed and may determine that such a request is appropriate for the class III devices that are the subjects of this regulation.

The FD&C Act does not permit an extension of the 90-day period after issuance of a final rule within which an application or a notice is required to be filed. The House Report on the 1976 amendments states that:“[t]he thirty month grace period afforded after classification of a device into class III * * * is sufficient time for manufacturers and importers to develop the data and conduct the investigations necessary to support an application for premarket approval (H. Rept. 94-853, 94th Cong., 2d sess. 42 (1976)).”

The SMDA added section 515(i) to the FD&C Act requiring FDA to review the classification of preamendments class III devices for which no final rule requiring the submission of PMAs has been issued, and to determine whether or not each device should be reclassified into class I or class II or remain in class III. For devices remaining in class III, the SMDA directed FDA to develop a schedule for issuing regulations to require premarket approval. The SMDA does not, however, prevent FDA from proceeding immediately to rulemaking under section 515(b) of the FD&C Act on specific devices, in the interest of public health, independent of the procedures of section 515(i). Proceeding directly to rulemaking under section 515(b) of the FD&C Act is consistent with Congress' objective in enacting section 515(i), i.e., that preamendments class III devices for which PMAs have not been previously required either be reclassified to class I or class II or be subject to the requirements of premarket approval. Moreover, in this proposal, interested persons are being offered the opportunity to request reclassification of any of the devices.

In accordance with section 515(b) of the FD&C Act, FDA is proposing to require that a PMA or a notice of completion of a PDP be filed with the agency for class III devices within 90 days after issuance of any final rule based on this proposal. An applicant whose device was legally in commercial distribution before May 28, 1976, or whose device has been found to be substantially equivalent to such a device, will be permitted to continue marketing such class III devices during FDA's review of the PMA or notice of completion of the PDP. FDA intends to review any PMA for the device within 180 days, and any notice of completion of a PDP for the device within 90 days of the date of filing. FDA cautions that under section 515(d)(1)(B)(i) of the FD&C Act, the agency may not enter into an agreement to extend the review period for a PMA beyond 180 days unless the agency finds that “the continued availability of the device is necessary for the public health.”

FDA intends that under 21 CFR 812.2(d), the preamble to any final rule based on this proposal will state that, as of the date on which the filing of a PMA or a notice of completion of a PDP is required to be filed, the exemptions from the requirements of the IDE regulations for preamendments class III devices in 21 CFR 812.2(c)(1) and (c)(2) will cease to apply to any device that is: (1) Not legally on the market on or before that date, or (2) legally on the market on or before that date but for which a PMA or notice of completion of a PDP is not filed by that date, or for which PMA approval has been denied or withdrawn.

If a PMA or notice of completion of a PDP for a class III device is not filed with FDA within 90 days after the date of issuance of any final rule requiring premarket approval for the device, commercial distribution of the device must cease. The device may be distributed for investigational use only if the requirements of the IDE regulations are met. The requirements for significant risk devices include submitting an IDE application to FDA for its review and approval. An approved IDE is required to be in effect before an investigation of the device may be initiated or continued under 21 CFR 812.30. FDA, therefore, cautions that IDE applications should be submitted to FDA at least 30 days before the end of the 90-day period after the issuance of the final rule to avoid interrupting investigations.

As required by section 515(b) of the FD&C Act, FDA is publishing its proposed findings regarding: (1) The degree of risk of illness or injury designed to be eliminated or reduced by requiring that this device have an approved PMA or a declared completed PDP, and (2) the benefits to the public from the use of the device.

These findings are based on the reports and recommendations of the advisory committee (panel) for the classification of this device along with information submitted in response to the 515(i) Order (74 FR 16214, April 9, 2009), and any additional information that FDA has encountered. Additional information regarding the risks as well as classification associated with this device type can be found in the following proposed and final rules and notices published in the Federal Register : 44 FR 13382, March 9, 1979; 45 FR 7907-7971, February 5, 1980; and 52 FR 17736, May 11, 1987.

A pacemaker programmer is a device used to change noninvasively one or more of the electrical operating characteristics of a pacemaker.

The Cardiovascular Device Classification Panel recommended that this device be classified as class III because the panel also recommended that pacemakers be classified into class III. The panel believed that premarket approval was necessary to assure the safety and effectiveness of pacemakers, which are life-supporting devices, and that the same level of control was necessary for both devices because pacemaker programmers must be designed to operate with a specific pacemaker as a system. The panel believed that general controls alone would not provide sufficient control over the performance characteristics of this device, that a performance standard would not provide reasonable assurance of the safety and effectiveness of the device, and, moreover, that there are insufficient data to establish a standard to provide such assurance. Consequently, the panel believed that premarket approval was necessary to assure the safety and effectiveness of the device. FDA continues to agree with the panel's recommendation.

1. Cardiac arrhythmias or electrical shock: Excessive electrical leakage current can disturb the normal electrophysiology of the heart, leading to the onset of cardiac arrhythmias.

2. Improper pacemaker operation: Inadequate design of the device's programming function can cause the pacemaker to lose its sensing or pacing ability, or to pace at an improper rate.

3. Misdiagnosis: Inadequate design of the device's ability to sense pacemaker function can lead to the generation of inaccurate diagnostic data. If inaccurate diagnostic data are used in managing the patient, the physician may prescribe a course of treatment that places the patient at risk unnecessarily.

4. Inability to change pacing therapy: Inadequate matching of the programmer to the pacemaker could lead to a situation where the pacemaker could not be programmed, thereby preventing a needed change in pacing therapy and placing the patient at risk unnecessarily.

A PMA for this device must include the information required by section 515(c)(1) of the FD&C Act. Such a PMA should also include a detailed discussion of the risks identified previously, as well as a discussion of the effectiveness of the device for which premarket approval is sought. In addition, a PMA must include all data and information on: (1) Any risks known, or that should be reasonably known, to the applicant that have not been identified in this document; (2) the effectiveness of the device that is the subject of the application; and (3) full reports of all preclinical and clinical information from investigations on the safety and effectiveness of the device for which premarket approval is sought.

A PMA must include valid scientific evidence to demonstrate reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 CFR 860.7(c)(2)). Valid scientific evidence is “evidence from well-controlled investigations, partially controlled studies, studies and objective trials without matched controls, well-documented case histories conducted by qualified experts, and reports of significant human experience with a marketed device, from which it can fairly and responsibly be concluded by qualified experts that there is reasonable assurance of the safety and effectiveness of a device under its conditions of use. * * * Isolated case reports, random experience, reports lacking sufficient details to permit scientific evaluation, and unsubstantiated opinions are not regarded as valid scientific evidence to show safety or effectiveness.” (21 CFR 860.7(c)(2))

A PDP for this device may be submitted in lieu of a PMA, and must follow the procedures outlined in section 515(f) of the FD&C Act. A PDP must provide: (1) A description of the device, (2) preclinical trial information (if any), (3) clinical trial information (if any), (4) a description of the manufacturing and processing of the device, (5) the labeling of the device, and (6) all other relevant information about the device. In addition, the PDP must include progress reports and records of the trials conducted under the protocol on the safety and effectiveness of the device for which the completed PDP is sought.

Before requiring the filing of a PMA or notice of completion of a PDP for a device, FDA is required by section 515(b)(2)(A)(i) through (b)(2)(A)(iv) of the FD&C Act and 21 CFR 860.132 to provide an opportunity for interested persons to request a change in the classification of the device based on new information relevant to the classification. Any proceeding to reclassify the device will be under the authority of section 513(e) of the FD&C Act.

A request for a change in the classification of this device is to be in the form of a reclassification petition containing the information required by § 860.123, including new information relevant to the classification of the device.

The agency advises that to ensure timely filing of any such petition, any request should be submitted to the Division of Dockets Management (see ADDRESSES ) and not to the address provided in § 860.123(b)(1). If a timely request for a change in the classification of these devices is submitted, the agency will, within 60 days after receipt of the petition, and after consultation with the appropriate FDA resources, publish an order in the Federal Register that either denies the request or gives notice of its intent to initiate a change in the classification of the device in accordance with section 513(e) of the FD&C Act and 21 CFR 860.130 of the regulations.

The agency has determined under 21 CFR 25.30(h) 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.

FDA has examined the impacts of the proposed rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 12866 directs 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). The agency believes that this proposed rule is not a significant regulatory action as defined by the Executive order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. There has been only one 510(k) submission assigned to this product code within the past 15 years. Upon review of this record, the agency determined that this was done in error, which has been corrected. Accordingly, since it has been determined that all of the affected devices have fallen into disuse; FDA has concluded that there is little or no interest in marketing these devices in the future. Therefore, the agency proposes to certify that the proposed rule, if issued as a final rule, would not have a significant economic impact on a substantial number of small entities. We specifically request detailed comment regarding the appropriateness of our assumptions regarding the potential economic impact of this proposed rule.

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 $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this proposed rule to result in any 1-year expenditure that would meet or exceed this amount.

FDA proposes to certify that this proposed rule, if issued as a final rule, would not have a significant economic impact. We base this determination on an analysis of registration and listing and other data for the device. There have been no 510(k) submissions for pacemaker programmers since 1995 with the exception of one 510(k) submission cleared in 2009 for a Pacing System Analyzer cleared for use with a PMA approved programmer. This device was inappropriately reviewed as a 510(k) submission, because this device should have been regulated under PMA. Programmers currently marketed are capable of programming all implantable cardiac devices including pacemakers and defibrillators. Because these programmers interact with products covered under several class III product codes including adaptive rate pacemakers (LWP); implantable defibrillators (LWS); cardiac resynchronization pacemakers (CRT-P, NKE) and implantable defibrillators (CRT-D, NIK) they have been entirely reviewed within the PMA program for more than a decade.

This information is summarized in table 1 below as follows:

Based on our review of electronic product registration and listing and other data, FDA concludes that there is currently little or no interest in marketing the affected devices and that the proposed rule would not have a significant economic impact. We specifically request detailed comment regarding the appropriateness of our assumptions regarding the potential economic impact of this proposed rule.

FDA has analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the proposed rule, if finalized, would not contain policies that would 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. Accordingly, the agency tentatively concludes that the proposed rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

This proposed rule 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 812 have been approved under OMB Control No. 0910-0078; the collections of information in 21 CFR part 807 subpart E have been approved under OMB Control No. 0910-0120; the collections of information in 21 CFR 814 subpart B have been approved under OMB Control No. 0910-0231; and the collections of information under 21 CFR 801 have been approved under OMB Control No. 0910-0485.

FDA is proposing that any final rule based on this proposal become effective on the date of its publication in the Federal Register or at a later date if stated in the final rule.

Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) either electronic or written comments regarding this document. It is only necessary to send one set of comments. It is no longer necessary to send two copies of mailed comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR part 870 be amended as follows:

On November 18, 2010, the National Indian Gaming Commission (NIGC) issued a Notice of Inquiry and Notice of Consultation advising the public that it was conducting a review of its regulations promulgated to implement 25 U.S.C. 2701-2721 of the Indian Gaming Regulatory Act (IGRA) and requesting public comment on the process for conducting the regulatory review. On April 4, 2011, after holding eight consultations and reviewing all comments, NIGC published a Notice of Regulatory Review Schedule in the Federal Register setting out consultation schedules and review processes. (76 FR 18457, April 4, 2011).

The Commission's regulatory review process establishes a tribal consultation schedule with a description of the regulation groups to be covered at each consultation. This document advises the public that the following tribal consultations have been cancelled.

For additional information on consultation locations and times, please refer to the Web site of the National Indian Gaming Commission, http://www.nigc.gov.

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. EPA is proposing approval of this SIP revision because it corrects the deficiencies in the Maryland SIP and eliminates inconsistencies between State statutory and regulatory requirements for preconstruction permitting for electric generating stations in Maryland. It will also ensure that the SIP is adequate to prevent significant deterioration of air quality in areas designated as attainment or unclassifiable as required by Sections 110(a) and 161 of the CAA and 40 CFR 51.166, and will ensure that the SIP provides for the attainment and maintenance of the National Ambient Air Quality Standards (NAAQS).

On May 13, 2011, MDE submitted a SIP revision request (#11-01) to EPA. The MDE is the State agency designated by the Governor of the State of Maryland as the official State agency responsible for implementing the CAA. The Maryland PSC is an agent of the State of Maryland and is an independent unit in the Executive Branch of the government of the State of Maryland. The PSC regulates public utilities including generating stations owned by electric companies doing business in Maryland and is empowered by the State of Maryland to issue Certificates of Public Convenience and Necessity (CPCN) for the construction and modification of electric generating stations.

Section 110(a)(2)(C) of the CAA requires the State's SIP to have a program for regulation of construction and modification of sources. This includes the Prevention of Significant Deterioration (PSD) and nonattainment New Source Review (NSR) programs as required by Parts C and D of Title I of the CAA to assure that the NAAQS are protected. Electric generating stations in Maryland are required to obtain a CPCN from the PSC prior to construction or modification. We are proposing to approve the May 13, 2011 SIP revision that requires electric generating stations to obtain a CPCN prior to construction. This SIP revision also requires that all of the air quality provisions that would otherwise be incorporated into a permit to construct or an approval issued by MDE must be contained in a CPCN issued by the PSC.

As provided in Environment Article 2, 2-402(3), Annotated Code of Maryland, electric generating stations that are not required to obtain a CPCN from the PSC for any reason remain subject to MDE's preconstruction permitting requirements. However, the current SIP-approved regulations at COMAR 26.11.02.09 and .10 exempt all electric generating stations constructed or modified by electric generating companies from MDE's permitting regulations. These regulations are inconsistent with the statutory provision in that they do not preserve MDE's permitting authority for electric generating stations that are not required to obtain a CPCN. We are proposing to approve the SIP revision submitted by MDE on May 13, 2011 to include updated provisions at COMAR 26.11.02.09 and .10.

For the first time, MDE is also submitting for the approval into its SIP, Public Utility Companies Article, 7-205, 7-207, 7-207.1 and 7-208, Annotated Code of Maryland as well as the PSC regulations at COMAR 20.79.01.01, .02, .06 and .07, COMAR 20.79.02.01, .02, and .03, and COMAR 20.79.03.01 and .02. The Public Utility Companies Article's provisions and the associated PSC regulations govern more than CAA requirements and air quality issues. Therefore, we are proposing to approve into the SIP only those regulatory and statutory provisions that govern the PSC process which are necessary to implement CAA requirements, and are taking no action on those portions of Maryland's May 13, 2001 submittal which are unrelated to requirements of the CAA The technical support document (TSD) included in the docket for this proposed rulemaking action specifies those provisions of the May 13, 2011 SIP revision request that are being proposed for approval into the SIP. The TSD also specifies those provisions upon which EPA is taking no action.

This SIP revision, when approved, will correct deficiencies within the current Maryland SIP and will allow Maryland's programs for the permitting of electric generating stations to meet the applicable requirements of the CAA and Federal regulations.

As previously stated, the May 13, 2011 SIP revision request includes (among other requirements) Title 20, Subtitle 79, Chapter 01, paragraph .07 Waivers and Modifications and Title 20, Subtitle 79, Chapter 02 paragraph .03 Proceedings on the Application, specifically subparagraph C. Phased Proceedings Requests. On July 15, 2011, Secretary Robert M. Summers of MDE submitted a letter to Shawn M. Garvin, Regional Administrator of EPA Region III to supplement the May 13, 2011 SIP revision request. The July 15, 2011 letter provides assurances that when the PSC implements these regulatory provisions, MDE, pursuant to its authority under the Public Utility Companies Article, Subsection 7-208, paragraph (f), will ensure that no waivers, modifications or phased applications are issued or accepted by the PSC that do not comply with all applicable requirements of the Federal Clean Air Act and Federal regulations. We are proposing to make this letter part of the Maryland SIP.

EPA is proposing to approve the SIP revision request submitted by MDE on May 13, 2011 as supplemented on July 15, 2011, regarding the preconstruction permitting requirements for electric generating stations because it satisfies the applicable provisions of the CAA and associated Federal regulations. We are soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

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

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

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

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

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

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

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

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

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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 proposed rule for clarifying the statutes and regulations in the Maryland State Implementation Plan for the preconstruction permitting requirements for electric generating stations in Maryland 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.

Table of Contents I. EPA's Proposed Action A. What action is EPA proposing today? B. Why is EPA proposing this action? C. What are the Clean Air Act requirements for NO X RACT? D. What is EPA's evaluation of New Jersey's SIP revision? II. New Jersey's SIP Revision A. What are New Jersey's NO X RACT requirements? B. What are New Jersey's facility specific NO X RACT requirements? C. When was New Jersey's RACT determination proposed and adopted? D. When was New Jersey's proposed SIP revision submitted to EPA? III. Conclusion VI. Statutory and Executive Order Reviews I. EPA's Proposed Action A. What action is EPA proposing today?

EPA is proposing to approve New Jersey's revision to the ozone State Implementation Plan (SIP) submitted on May 14, 2009. This SIP revision relates to New Jersey's NO X RACT determination for the Naval Weapons Station Earle (NWSE) facility located in Colts Neck, New Jersey, Monmouth County. The facility contains two stationary reciprocating, diesel fuel fired, internal combustion engines—one existing and one new engine.

EPA is proposing this action to:

• Give the public the opportunity to submit comments on EPA's proposed action, as discussed in the DATES and ADDRESSES sections.

• Fulfill New Jersey's and EPA's requirements under the Clean Air Act (Act).

• Make New Jersey's RACT determination federally enforceable.

The Act requires certain states to develop RACT regulations for stationary sources of NO X and to provide for the implementation of the required measures as soon as practicable. Under the Act, the definition of a major stationary source is based on the tons per year (tpy) of air pollution a source emits and the quality of the air in the area of a source. In ozone transport regions, attainment/unclassified areas as well as marginal and moderate ozone attainment areas, a major stationary source for NO X is considered to be one which emits or has the potential to emit 100 tpy or more of NO X and is subject to the requirements of a moderate nonattainment area. New Jersey is within the Northeast ozone transport region, established by section 184(a) of the Act, and has defined a major stationary source of NO X as a source which has the potential to emit 25 tpy, the level set for severe nonattainment areas. For detailed information on the Act requirements for NO X RACT, see the Technical Support Document (TSD) prepared in support of this proposed action. A copy of the TSD is available upon request from the EPA Regional Office listed in the ADDRESSES section or it can be viewed at http://www.regulations.gov.

EPA has determined that New Jersey's proposed SIP revision for the NO X RACT determination for NWSE's engines is consistent with New Jersey's NO X RACT regulation and EPA's guidance. EPA's basis for evaluating New Jersey's proposed SIP revision is whether it meets the SIP requirements described in section 110 of the Act. EPA has determined that New Jersey's proposed SIP revision will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act.

After reviewing New Jersey's SIP revision submittal, EPA found it administratively and technically complete. EPA has determined that the NO X emission limits identified in New Jersey's Conditions of Approval document represent RACT for NWSE's engines. The conditions contained in the Conditions of Approval document currently specify emissions limits, work practice standards, testing, monitoring, and recordkeeping/reporting requirements. These conditions are consistent with the NO X RACT requirements specified in Subchapter 19 of Chapter 27, Title 7 of the New Jersey Administrative Code and conform to EPA NO X RACT guidance. More specifically, EPA proposes to approve the current Conditions of Approval document which includes the following, to limit the:

1. NO X emissions rate from each engine to 11.3 g/bhp-hr,

2. Total NO X emissions rate while combusting 100% distillate oil to 4.67 tons per year for both engines combined,

3. Combined hours of operation for both engines to less than 675 hours per year,

4. Operation of each engine to 75% load or less, and

5. Annual fuel usage to 20,047.50 gallons per year combined for both engines.

In addition, the Conditions of Approval specify the NO X emissions limits, combustion process adjustments mentioned above, emission testing, monitoring, recordkeeping and reporting requirements, which States and sources will need to provide for through the Title V permitting process.

New Jersey's NO X RACT requirements are contained in Subchapter 19 entitled “Control of Oxides of Nitrogen”, of Chapter 27, Title 7 of the New Jersey Administrative Code. New Jersey has made numerous revisions to Subchapter 19 since the original SIP submission. The current SIP approved version of Subchapter 19 was approved by EPA on August 3, 2010 (75 FR 45483).

Section 19.13 of New Jersey's regulation establishes a procedure for a case-by-case determination of what represents RACT for a major NO X facility, item of equipment, or source operation. This procedure applies to facilities considered major for NO X , which are in one of the following two situations: (1) If the NO X facility contains any source operation or item of equipment of a category not listed in section 19.2(b) or (c) which has the potential to emit more than 10 tons of NO X per year, or (2) if the owner or operator of a source operation or item of equipment of a category listed in section 19.2(b) or (c) seeks approval of an alternative maximum allowable emission rate. This proposal relates to a facility in the second situation listed above.

New Jersey's procedure requires either submission of a NO X control plan, if specific emission limitations do not apply to the specific source, or submission of a request for an alternative maximum allowable emission rate if specific emission limitations do apply to the specific source. In either case, the owners/operators must include a technical and economic feasibility analysis of the possible alternative control measures. Also, in either case, Subchapter 19 requires that New Jersey establish emission limits which rely on a RACT determination specific to the facility. The resulting NO X control plan or alternative maximum allowable emission rate must be submitted to EPA for approval as a SIP revision.

New Jersey's RACT determination was proposed on January 16, 2009, with the public comment period ending February 16, 2009. New Jersey adopted the RACT determination on May 12, 2009 and supplemented this information on May 21, 2009.

New Jersey's SIP revision was submitted to EPA on May 14, 2009 and supplementary information was provided on May 21, 2009. EPA determined that the submittal was administratively and technically complete on July 13, 2009.

EPA is proposing to approve the New Jersey SIP revision for an alternative RACT emission limit determination for the NWSE's engines which includes source-specific NOx emissions limits for the engines, combustion process adjustments, emission testing, monitoring, recordkeeping and reporting requirements. EPA will consider all comments submitted prior to any final rulemaking action.

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

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

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

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

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

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

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

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

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

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

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

This proposal addresses the following local rule: South Coast Air Quality Management District Rule 1175, Control of Emissions from the Manufacturing of Polymeric Cellular (Foam) Products. In the Rules and Regulations section of this Federal Register , we are approving this local rule in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

Table of Contents for Preamble I. Public Participation and Request for Comments A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act D. Public Meeting II. Abbreviations III. Basis and Purpose IV. Background V. Discussion of Proposed Rule A. Summary B. Discussion of Methodology VI. Regulatory Analyses A. Executive Order 12866 and Executive Order 13563 B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Public Participation and Request for Comments

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

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0328), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2011-0328” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8½ by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0328” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

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

The basis of this rulemaking is the Great Lakes Pilotage Act of 1960 (“the Act”) (46 U.S.C. Chapter 93), which requires U.S. vessels operating “on register” 1 and foreign vessels to use U.S. registered pilots while transiting the U.S. waters of the St. Lawrence Seaway and the Great Lakes system. 46 U.S.C. 9302(a)(1). The Act requires the Secretary of Homeland Security to “prescribe by regulation rates and charges for pilotage services, giving consideration to the public interest and the costs of providing the services.” Rates must be established or reviewed and adjusted each year, not later than March 1. Base rates must be established by a full ratemaking at least once every 5 years, and in years when base rates are not established they must be reviewed and adjusted if necessary. 46 U.S.C. 9303(f). The Secretary's duties and authority under the Act have been delegated to the Coast Guard. Department of Homeland Security Delegation No. 0170.1, paragraph (92)(f). Coast Guard regulations implementing the Act appear in parts 401 through 404 of Title 46, Code of Federal Regulations (CFR). Procedures for use in establishing base rates appear in 46 CFR part 404, Appendix A, and procedures for annual review and adjustment of existing base rates appear in 46 CFR part 404, Appendix C.

The purpose of this rulemaking is to establish new base pilotage rates, using the 46 CFR part 404, Appendix A, methodology.

The vessels affected by this rulemaking are engaged in foreign trade upon the U.S. waters of the Great Lakes. U.S. and Canadian “Lakers,”  2 which account for most commercial shipping on the Great Lakes, are not affected. 46 U.S.C. 9302.

The U.S. waters of the Great Lakes and the St. Lawrence Seaway are divided into three pilotage districts. Pilotage in each district is provided by an association certified by the Coast Guard Director of Great Lakes Pilotage to operate a pilotage pool. It is important to note that, while we set rates, we do not control the actual number of pilots an association maintains, so long as the association is able to provide safe, efficient, and reliable pilotage service. We also do not control the actual compensation that pilots receive. The actual compensation is determined by each of the three district associations, which use different compensation practices.

District One, consisting of Areas 1 and 2, includes all U.S. waters of the St. Lawrence River and Lake Ontario. District Two, consisting of Areas 4 and 5, includes all U.S. waters of Lake Erie, the Detroit River, Lake St. Clair, and the St. Clair River. District Three, consisting of Areas 6, 7, and 8, includes all U.S. waters of the St. Mary's River, Sault Ste. Marie Locks, and Lakes Michigan, Huron, and Superior. Area 3 is the Welland Canal, which is serviced exclusively by the Canadian Great Lakes Pilotage Authority and, accordingly, is not included in the U.S. rate structure. Areas 1, 5, and 7 have been designated by Presidential Proclamation, pursuant to the Act, to be waters in which pilots must at all times be fully engaged in the navigation of vessels in their charge. Areas 2, 4, 6, and 8 have not been so designated because they are open bodies of water. While working in those undesignated areas, pilots must only “be on board and available to direct the navigation of the vessel at the discretion of and subject to the customary authority of the master.” 46 U.S.C. 9302(a)(1)(B).

This rulemaking is a full ratemaking to establish new base pilotage rates, using the 46 CFR part 404, Appendix A, methodology. Among other things, the Appendix A methodology requires us to review detailed pilot association financial information, and we contract with independent accountants to assist in that review. The last full ratemaking established the current base rates in 2006 (final rule, 71 FR 16501, April 3, 2006). Following the 2006 full ratemaking, and for the first time since 1996 when the 46 CFR part 404 Appendix A and Appendix C methodologies were established, we began a series of five annual Appendix C rate reviews and adjustments, each of which produced overall rate increases. The most recent Appendix C annual review was concluded on February 4, 2011 (76 FR 6351) and adjusts pilotage rates effective August 1, 2011.

We intended to establish new base rates within 5 years of the 2006 full ratemaking, or by March 1, 2011. However, an initial independent accountant's report on pilot association financial information was incomplete and inadequate, and could not be used for ratemaking. The resulting need to contract with a new independent accountant pushed this Appendix A ratemaking back a year, as we previously informed the public in 2009 and 2010 annual review rulemaking documents. 74 FR 56153 at 56154 (October 30, 2009), 75 FR 51191 at 51192 (August 19, 2010). We have now completed our review of the second independent accountant's 2009 pilot financial report. The comments by the pilot associations on that report and the independent accountant's final findings are discussed in our document entitled “Summary—Independent Accountant's Report on Pilot Association Expenses, with Pilot Association Comments and Accountant's Responses,” which appears in the docket.

We propose establishing new base pilotage rates in accordance with the methodology outlined in Appendix A to 46 CFR Part 404. The proposed new rates would be established by March 1, 2012 and effective August 1, 2012. They would average approximately 4 percent less, overall, than the February 2011 rate adjustments. Table 1 shows the proposed percent change for the new rates for each area. Rates for cancellation, delay, or interruption in rendering services (46 CFR 401.420) and basic rates and charges for carrying a U.S. pilot beyond the normal change point, or for boarding at other than the normal boarding point (46 CFR 401.428), would also decrease by 4 percent in all areas.

Appendix A provides seven steps, with sub-steps, for calculating rate adjustments. The following discussion describes those steps and sub-steps and includes tables showing how we have applied them to the 2009 detailed pilot financial information.

Step 1: Projection of Operating Expenses. In this step, we project the amount of vessel traffic annually. Based upon that projection, we forecast the amount of fair and reasonable operating expenses that pilotage rates should recover.

Step 1.A: Submission of Financial Information. This sub-step requires each pilot association to provide us with detailed financial information in accordance with 46 CFR part 403. The associations complied with this requirement, supplying 2009 financial information in 2010.

Step 1.B: Determination of Recognizable Expenses. This sub-step requires us to determine which reported association expenses will be recognized for ratemaking purposes, using the guidelines shown in 46 CFR 404.5. We contracted with an independent accountant to review the reported expenses and submit findings recommending which reported expenses should be recognized. The accountant also reviewed which reported expenses should be adjusted prior to recognition, or if they should be denied for ratemaking purposes. The independent accountant made preliminary findings; they were sent to the pilot associations, and the pilot associations reviewed and commented on the preliminary findings. Then, the independent accountant made final findings. The Coast Guard Director of Great Lakes Pilotage reviewed and accepted those final findings, resulting in the determination of recognizable expenses. The preliminary findings, the associations' comments on those findings, and the final findings are all discussed in the “Summary—Independent Accountant's Report on Pilot Association Expenses, with Pilot Association Comments and Accountant's Responses,” which appears in the docket. Tables 2 through 4 show each association's recognized expenses.

Step 1.C: Adjustment for Inflation or Deflation. In this sub-step we project rates of inflation or deflation for the succeeding navigation season. Because we used 2009 financial information, the “succeeding navigation season” for this ratemaking is 2010. We based our inflation adjustment of 2 percent on the 2010 change in the Consumer Price Index (CPI) for the North Central Region of the United States, which can be found at: http://www.bls.gov/xg_shells/ro5xg01.htm. This adjustment appears in Tables 5 through 7.

Step 1.D: Projection of Operating Expenses. The final sub-step of Step 1 is to project the operating expenses for each pilotage area, on the basis of the preceding sub-steps and any other foreseeable circumstances that could affect the accuracy of the projection. Because we are not now aware of any such circumstances, the projected operating expenses are based exclusively on the calculations from sub-steps 1.A through 1.C. Tables 8 through 10 show these projections.

Step 2: Projection of Target Pilot Compensation. In Step 2, we project the annual amount of target pilot compensation that pilotage rates should provide in each area. These projections are based on our latest information on the conditions that will prevail in 2012.

Step 2.A: Determination of Target Rate of Compensation. We first explained the methodology we have consistently used for this step in the interim rule for our last Appendix A ratemaking (68 FR 69564 at 69571 col. 3; December 12, 2003), and most recently restated this explanation in our 2011 Appendix C final rule (76 FR 6351 at 6354 col. 3; February 4, 2011). Target pilot compensation for pilots in undesignated waters approximates the average annual compensation for first mates on U.S. Great Lakes vessels. Compensation is determined based on the most current union contracts and includes wages and benefits received by first mates. We calculate target pilot compensation for pilots on designated waters by multiplying the average first mates' wages by 150 percent and then adding the average first mates' benefits.

The most current union contracts available to us are American Maritime Officers Union (AMOU) contracts with three U.S. companies engaged in Great Lakes shipping. There are two separate AMOU contracts available—we refer to them as Agreements A and B and apportion the compensation provided by each agreement according to the percentage of tonnage represented by companies under each agreement. Agreement A applies to vessels operated by Key Lakes, Inc., and Agreement B applies to all vessels operated by American Steamship Co. and Mittal Steel USA, Inc.

Agreements A and B both expire on July 31, 2011 and AMOU does not expect to conclude an agreement on new contracts in time for us to incorporate them in this ratemaking. However, we can project based on past contract increases and on the current contracts that any new contracts would provide for annual 3 percent wage increases. Under Agreement A, we project that the daily wage rate would increase from $278.73 to $287.09. Under Agreement B, the daily wage rate would increase from $343.59 to $353.90.

Because we are interested in annual compensation, we must convert these daily rates. Agreements A and B both use monthly multipliers to convert daily rates into monthly figures that represent actual working days and vacation, holiday, weekend, or bonus days. The monthly multiplier for Agreement A is 54.5 days and the monthly multiplier for Agreement B is 49.5 days. We multiply the monthly figures by 9, which represents the average length (in months) of the Great Lakes shipping season. Table 11 shows our calculations.

Based on increases over the 5-year history of the current contracts, we project that both Agreements A and B will increase their health benefits contributions and leave 401K-plan and pension contributions unchanged. On average, health benefits contribution rates have increased 10 percent annually. Thus, we project that both Agreements A and B will increase this benefit from $97.64 to $107.40 per day. The multiplier that both agreements use to calculate monthly benefits from daily rates, is currently 45.5 days, and we project that will remain unchanged. We use a 9-month multiplier to calculate the annual value of these benefits. Table 12 shows our calculations.

Table 13 combines our projected wage and benefit components of annual target pilot compensation.

This is a summary of the Commission's Second Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking in PS Docket No. 07-114, GN Docket No. 11-117, WC Docket No. 05-196, FCC 11-107, released on July 13, 2011. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554, or online at http://transition.fcc.gov/pshs/services/911-services/ .

1. Background. In 2005, the Commission first asserted regulatory authority over interconnected VoIP service providers for 911 purposes. In the VoIP 911 Order, the Commission defined interconnected VoIP service as a service that (1) enables real-time, two-way voice communications; (2) requires a broadband connection from the user's location; (3) requires Internet protocol-compatible customer premises equipment (CPE); and (4) permits users generally to receive calls that originate on the PSTN and to terminate calls to the PSTN. The Commission established requirements for these providers to provide 911 services to their customers. Since the Commission's adoption of these requirements, Congress has codified them and has also given the Commission the discretion to modify them “from time to time.”

2. In the Location Accuracy NOI, the Commission noted that the Commission's VoIP 911 rules have thus far been limited to providers of interconnected VoIP services as defined above. The Commission also noted, however, that since these rules were adopted, there has been a significant increase in the availability and use of portable VoIP services and applications that do not meet one or more prongs of the interconnected VoIP service definition. In light of the increase in use of these services, the Commission sought comment on several alternatives for expanding the scope of the VoIP 911 rules, including whether 911/E911 obligations should apply to (1) VoIP services that enable users to place outbound calls that terminate on the PSTN but not to receive inbound calls from the PSTN, and (2) VoIP services that enable users to receive inbound calls from the PSTN but not to make outbound calls to the PSTN.

3. Comments. In response to the Location Accuracy NOI, a number of public safety entities argue that the Commission should impose 911 obligations on VoIP services that do not meet the current definition of interconnected VoIP service. NENA contends that consumers expect that they will be able to reach 911 from a VoIP telephone. NENA submits that it is “reasonable for consumers to expect that services which allow outbound calling to the PSTN will properly route calls to 9-1-1.” Further, Texas 9-1-1 Agencies contends that “vendors of these services should be required to provide public education materials related to 9-1-1 limitations and work diligently with public safety and access network provider[s] * * * to minimize confusion and potential adverse consequences to their end users.”

4. Some commercial commenters also support the view that changing consumer expectations support extending 911 requirements beyond the scope of VoIP providers covered by the existing rules. AT&T highlights that “the record suggests that consumers expect that outbound, residential VoIP services that provide local calling capability will support E911.” Sprint Nextel notes that “[m]any * * * new services can be viewed as a form of mobile phone service and, as such, should be treated in a similar way for purposes of 911.” TCS states that “[s]ome VoIP services that otherwise fully comply with [the interconnected VoIP service] definition are configured so as to offer only “one-way” ( i.e., either in-bound or out-bound calling, but not both) voice services to the PSTN.” TCS characterizes this as a “loophole” that encourages “product definition arbitrage” and urges “either Congressional action * * * or clarification from the FCC that such services are included in § 9.3,” of the Commission's rules. MobileTREC states that “since a consumer's expectation is that all devices that have dial tone would have 911 service, then any device with dial tone should have a 911 solution, including nomadic or mobile VoIP services such as MagicJack, Skype, Vonage, and Google Voice.” DASH believes that “the primary criteria the Commission should apply in determining whether to impose 9-1-1 requirements on new products and services is the reasonable expectations of the subscriber.”

5. The VON Coalition, on the other hand, argues that “there is a real risk to innovation if the Commission begins to blur the previously established clear lines and expectations created in the definition of interconnected VoIP * * * to trigger 911 obligations on these innovative applications, products and services.” The VON Coalition also notes that “certain IP-enabled services and devices, including non-interconnected VoIP services, may not be technically capable of providing E911, because of the difficulties in identifying the locations of users.” In addition, the VON Coalition argues that “to the extent E911 or next generation 911 obligations are extended, it should be considered only for those voice applications or offerings that are designed to provide the essential qualities of a telephone service which is the ability to call anyone and receive a call from anyone in the world.”

6. Discussion. When the Commission adopted VoIP 911 requirements in 2005, it recognized that the definition of interconnected VoIP service might “need to expand as new VoIP services increasingly substitute for traditional phone service.” Since 2005, there has been a dramatic increase in the number and popularity of VoIP services. For example, Skype reported to the Securities and Exchange Commission in 2010 that it had 20 million users in the United States. Skype also stated that it had over 8 million paying users worldwide for its SkypeIn and SkypeOut services and had domestic revenues of over $100 million in 2009. A number of companies, such as Skype and Google Voice offer a variety of “one-way” interconnected VoIP services that enable inbound calls from the PSTN or outbound calls to the PSTN, but not both.

7. There are now well over 4.2 million subscribers to one-way interconnected VoIP services, which was the number of two-way interconnected VoIP subscribers in 2005 when the FCC adopted the original interconnected VoIP 911 rules. Moreover, since 2005, a number of hardware products have been introduced that support outbound-only interconnected VoIP service and are indistinguishable from traditional landline or cordless phones in their ability to place outbound calls.

8. Outbound-only interconnected VoIP service providers have also been marketing their services to businesses, which generally require a higher grade of quality and reliability than residential-based voice services. For example, since late 2008, Skype has been marketing several versions of its service to small, medium, and large businesses that use Session Initiation Protocol-based PBX systems. In addition to offering low cost rates for outbound calls, the service allows customers to purchase online numbers to receive inbound calls.

9. Outbound-Only Interconnected VoIP Service . In light of increased consumer access to and use of outbound-only interconnected VoIP services, we seek comment on whether to extend our 911 obligations to outbound-only interconnected VoIP service providers to further the achievement of long-established regulatory goals to promote the safety of life and property. We invite comment regarding consumers' expectations for being able to contact emergency personnel when using outbound-only interconnected VoIP services. What is the likelihood that a consumer who needs to place an emergency call and is unfamiliar with an outbound-only interconnected VoIP phone would expect it to have the ability to transmit a 911 call? Are warnings at the point of sale regarding a consumer's inability to reach 911 using a particular outbound-only interconnected VoIP service effective? Is there a consumer expectation with respect to being able to contact emergency personnel when using an inbound-only interconnected VoIP service?

10. If we were to extend 911 obligations to outbound-only interconnected VoIP service providers, should we also revise our definition of interconnected VoIP service? As an initial matter, we seek comment on two potential technical modifications to the definition of interconnected VoIP service. First, we seek comment on whether we should modify the second prong of the existing definition, which requires a broadband voice connection from the user's location. Some interconnected VoIP service providers have asserted that VoIP services that are capable of functioning over a dial-up connection as well as a broadband connection fall outside this definition. Since these services provide virtually the same user experience, regardless of the fact that they are in dial-up mode, we seek comment on whether the second prong should specify an “Internet connection,” rather than a broadband connection, as the defining feature.

11. Second, we seek comment on whether we should modify the fourth prong of the existing definition to define connectivity in terms of the ability to connect calls to United States E.164 telephone numbers rather than the PSTN. Such a change could reflect the fact that interconnected VoIP service providers are not limited to using the circuit-switched PSTN to connect or receive telephone calls. Indeed, as networks evolve away from circuit-switched technology, VoIP users are increasingly likely to place and receive telephone calls in which the end-to-end transmission is entirely over IP-based networks. By referencing E.164 telephone numbers and eliminating reference to the PSTN, the definition of interconnected VoIP service might be technically more accurate and avoid potential technical obsolescence.

12. Thus, we seek comment on whether to extend 911 requirements to any service that (1) Enables real-time, two-way voice communications; (2) requires an Internet connection from the user's location; (3) requires Internet protocol-compatible customer premises equipment; and (4) permits users to terminate calls to all or substantially all United States E.164 telephone numbers. Would such a new definition accurately reflect current and evolving consumer expectations and the needs of PSAPs and first responders? In the companion Notice of Proposed Rulemaking, we seek comment on whether a new definition, were we to adopt one, should be used for any regulatory purpose other than 911 and on issues related to the changing the definition for 911 purposes only.

13. We also seek comment on the cost and technical feasibility of extending the Commission's existing 911 requirements to outbound-only interconnected VoIP service providers. In this regard, we seek comment on the ability of an outbound-only interconnected VoIP service provider to support callback capability. Does the fact that outbound-only interconnected VoIP service providers have already implemented call-back mechanisms for non-emergency purposes mean that it would be feasible for an outbound-only interconnected VoIP service provider to support callback capability for emergency purposes as well? If the Commission were to extend existing 911 requirements to outbound-only interconnected VoIP service providers, what would be an appropriate timeframe for doing so?

14. Would the costs for outbound-only interconnected VoIP service providers to come into compliance with these requirements be no greater, and potentially be lower, than the costs that two-way interconnected VoIP service providers incurred when the Commission adopted its original VoIP 911 requirements in 2005? Has the development since 2005 of mechanisms to support VoIP 911 and the provision of registered location information led to efficiencies that could reduce the cost for outbound-only interconnected VoIP service providers to come into compliance? Conversely, do outbound-only interconnected VoIP services face any additional costs due to technical challenges in transmitting 911 calls, providing call-back information, or using customer-generated location information when compared to bidirectional services?

15. To establish the baseline from which to calculate benefits and costs of extending 911 service requirements to outbound-only interconnected VoIP service providers, we seek comment on the number of firms and subscribers that would be affected; the number of firms that currently provide 911 service for outbound-only interconnected VoIP calls; the number of households and businesses that use outbound-only interconnected VoIP services, including the number that use outbound-only interconnected VoIP services to the exclusion of two-way voice calling services; the projected growth in use of outbound-only interconnected VoIP services, including any growth in the use of such services to the exclusion of two-way voice calling services; and the number of outbound-only interconnected VoIP 911 calls placed annually to PSAPs.

16. We seek comment on the appropriate manner to calculate the benefits that would result from extending 911 service requirements to outbound-only interconnected VoIP services. These benefits may include decreased response times for emergencies; reductions in property damage, the severity of injuries and loss of life; and the increase in the probability of apprehending criminal suspects. We recognize that these benefits will be tempered when consumers have access to other telecommunications services that already provide 911 service and may increase when outbound-only interconnected VoIP service use grows in the future. Potential benefits may also include less tangible and quantifiable factors, such as an increased sense of security. We seek comment on how these intangibles should be accounted for in any analysis.

17. We seek comment on the costs and technical issues associated with providing 911 services. These costs may include hardware upgrades, software updates, customer service costs, the cost of sending additional 911 calls, decreased innovation and investment in services, market exit, liability concerns, as well as other potential costs not enumerated here. We seek comment on any changes to the proposed rules that could mitigate these cost factors while maintaining the goals of extending access to emergency services to users of outbound-only interconnected VoIP services. We seek comment on how any two-way or outbound-only interconnected VoIP service providers that currently offer 911 service provision these services and ask for a precise quantification of the initial and ongoing costs associated with establishing 911 calling, as well as the number of subscribers that have utilized this feature.

18. We seek further comment on any potential costs that public safety personnel may incur if the Commission were to impose 911 obligations upon outbound-only interconnected VoIP service providers. For instance, assuming that most PSAPs are already capable of receiving 911 calls from two-way VoIP providers, would they incur additional costs were they also to receive 911 calls from outbound-only interconnected VoIP providers? For example, could there be potential costs if emergency response personnel are sent to the wrong location or if PSAPs are forced to deal with an increase in the number of fraudulent 911 calls?

19. Finally, with the introduction of advanced consumer equipment and applications for use on desktop computers and mobile devices, we expect significant innovation to continue in the provision of voice services over IP networks. Thus, we also seek comment on whether there are voice services that are presently being offered that would fall outside the scope of the proposed new definition for outbound-only interconnected VoIP service for which consumers may have a reasonable expectation of being able to contact 911.

20. Background. The Commission's rules currently do not require providers of portable interconnected VoIP service to automatically provide location information to PSAPs without the customer's active cooperation. In the Location Accuracy NPRM, the Commission tentatively concluded that “to the extent that an interconnected VoIP service may be used in more than one location, providers must employ an automatic location technology that meets the same accuracy standards that apply to those CMRS services.” The Location Accuracy NOI sought to refresh the record on this tentative conclusion.

21. Specifically, in the Location Accuracy NOI, the Commission sought comment on a range of questions related to automatic provision of location information for interconnected VoIP services. The Commission sought information on what advanced technologies, if any, permit portable interconnected VoIP service providers to provide ALI, whether portable interconnected VoIP service providers had implemented any practices or methods to provide ALI, and if not, what the Commission could do to facilitate the development of techniques for automatically identifying the geographic location of users of this service. Further, the Commission sought comment on whether interconnected VoIP service providers should incorporate the ability to automatically detect a user's Internet connectivity, identify a user's location, and prompt a user to confirm his/her location, prior to enabling calling features. The Commission also sought comment on whether CMRS operators that provide interconnected VoIP services can deliver location information to a PSAP in the same manner as for CMRS, specifically, delivering longitude and latitude coordinates to the PSAP in lieu of a street address.

22. Comments. Several commenters argue that the dramatic growth of interconnected VoIP services has created a market segment too large to remain exempt from E911 location accuracy and that interconnected VoIP service providers as well as broadband providers should work together to address technical solutions for providing automatic location information for VoIP subscribers (including wireless VoIP callers), with the goal of recommending a standard. APCO maintains that “[c]allers using IP devices expect and should receive the same E9-1-1 service as callers using other types of devices” and that “automatic location requirements should therefore be imposed on all devices that the public uses in the same * * * manner as interconnected telephones.” NENA argues that “[i]t is entirely reasonable for consumers to expect that services which allow outbound calling to the PSTN will properly route calls to 9-1-1, [and] that this is indeed the expectation held by the overwhelming majority of VoIP users.” St. Louis County believes these services must provide location and routing information similar to that provided by wireline voice providers.

23. NENA has two primary concerns about the inability of interconnected VoIP service providers to provide ALI for 911 calls. First, although NENA lacks quantitative figures, it has received a “wealth of anecdotal evidence that PSAPs frequently receive calls routed incorrectly due to a failure of nomadic VoIP systems to update user locations.” Second, according to NENA, there is evidence that callers sometimes intentionally falsify location information, which is “impossible to detect and can negatively impact * * * safety and security * * * by diverting resources away from legitimate emergency calls or directing attention away from [a crime] scene [and] when fraudulent calls are detected, it is technically * * * difficult to locate the perpetrator. St. Louis County states that “while improvements to location accuracy have been [made], there remain inaccuracies and other limiting factors requiring additional time and effort at the point of call taking to adequately determine the location of the reporting party,” a problem compounded by nomadic callers who “seldom [are] aware of their geographic location and can offer only observed landmarks thus delaying initial response.”

24. A number of commenters argue that the existing Registered Location requirement, whereby VoIP subscribers register their physical location with their provider, has worked well and should continue to serve as the basis for routing 911 calls. Vonage states that it has worked with public safety to adapt Vonage's 911 service to the equipment or infrastructure on which PSAPs rely, resulting in the delivery of more information to the PSAP than is provided by CMRS carriers. Vonage also asserts that “public safety has not requested ALI data from Vonage.”

25. While commenters differ on whether ALI requirements for interconnected VoIP service are needed, commenters generally agree that at this time there is no technological or cost-effective means to provide ALI for interconnected VoIP service providers. Commenters also state that there are no industry standards to support ALI for interconnected VoIP calls and that “the static ALI database in use today is ill-suited to provide location information for any mobile or nomadic communications service.” According to AT&T, the services encompassed within the Commission's definition of interconnected VoIP service “operate over a myriad of portable devices and technologies that permit portability, including commercial mobile smartphones running VoIP applications, Wi-Fi enabled VoIP handsets, portable terminal adapters, USB dongles, PC-based softphones [and] VoIP users might access the Internet through traditional wired broadband connections, public or private wireless access points, or commercial mobile broadband networks [such that] each permutation of device and network access may have unique technical and logistical challenges, which makes it infeasible today to rely on a single standard or technology for determining and relaying accurate ALI to PSAPs.” Likewise, Qwest states that “[w]ireline networks, e.g., the architecture defining VoIP 911, have no ability to read each other's end-user locations [and] no existing technology, let alone applicable industry-agreed standards, support the automatic delivery of user address information from a VoIP piece of equipment to a database capable of manipulating it and getting it delivered to a PSAP.” Vonage argues that “it is particularly critical that the Commission recognize the distinction between fixed, nomadic, and mobile interconnected VoIP service [because] “[f]or fixed and nomadic services, moving to CMRS location requirements would degrade, rather than improve, the accuracy and reliability of emergency caller location information [and] [f]or VoIP mobile products, moving to CMRS location requirements will introduce duplication, inefficiency and confusion.”

26. Motorola states that “[i]mplementation of this functionality * * * would require substantial standards development, investment, and infrastructure upgrades by both VoIP service providers and PSAPs.” Vonage argues that “existing and proposed automatic location identification technology is significantly less reliable than network end-point location information * * * especially * * * in dense urban environments” and therefore “the Commission should not prematurely impose technological requirements and risk likely decreases in public safety and IVS autolocation.”

27. A number of commenters recommend that the Commission encourage industry and public safety entities to work together to develop automatic location identification solutions for VoIP. NENA states that “[i]n the future, some form of Automatic Location Determination should be mandatory for all portable or nomadic VoIP devices and applications” and recommends that “the Commission consult closely with industry to begin fashioning workable 9-1-1 and E9-1-1 rules for PSTN-terminating VoIP providers.”

28. According to AT&T, one possible technological solution that warrants further consideration would be “to include integrated ALI capabilities in the design of terminal adapters or other user devices employed in the provision of portable VoIP services.” AT&T states that “these devices could include A-GPS, passive CMRS wireless receivers, or both, for use in trilateration and identification of the user's location.” Nevertheless, AT&T cautions that GPS-based automatic location information poses technical limitations, as many interconnected VoIP subscribers use their service indoors or in urban environments, making GPS less effective if satellite transmissions are reflected off buildings and other obstructions or satellite connectivity is lost when VoIP users are deeper indoors. Dash argues that a key element in an ALI solution for interconnected VoIP service is a Location Information Server (LIS) hosted by the service and/or broadband provider and therefore capable of determining, storing, updating, validating and providing location information to first responders. Motorola supports the provision of a validated Master Street Address Guide (MSAG) “where an interconnected VoIP service connects to a PSAP through an IP/wireline technology, but interconnected VoIP services that connect over wireless networks should not be held to the same location accuracy standard as CMRS networks at this time.”

29. Some commenters believe that the costs associated with the deployment of VoIP automatic location capability would be very high. In addition, commenters point out that there is no mechanism for cost recovery. Qwest states that “it is unclear whether cost recovery would come from the Federal government, or whether VoIP service providers would need to look to the states (and their funding mechanisms, such as 911 surcharges and state funds) for recovery of their significant costs * * * [a]nd it is even less clear where non-regulated entities would go for their cost recovery.” AT&T argues that any solution will require “substantial up-front investment well before any appreciable results would be seen” and “necessitate significant reengineering” as well as replacement of existing devices with “significant consumer outreach efforts and additional expense for subscribers and service providers.”

30. Discussion. We agreee with commenters that, given the increasing popularity and adoption of interconnected VoIP services, the provision of accurate location information to PSAPs is becoming essential information to facilitate prompt emergency response and protect life, health and property. Although some commenters point out that the current Registered Location requirement can provide the necessary detailed location of callers, the current regime remains dependent upon subscribers manually and accurately entering their location information and updating it in a timely manner. NENA indicates that a number of VoIP 911 calls have provided erroneous or fraudulent location information to PSAPs, leading to the waste of scarce emergency resources and squandering time that could have been spent responding to other emergencies. We note that proposals related to NG911 would allow the transmission of multiple location objects for a call and thus permit the PSAP to receive the benefit of both the additional information contained in a civic address provided by a user ( e.g., an apartment number or street address) and the automatically determined location information that is less subject to data entry errors, lack of timely updates, and possible misrepresentations.

31. In light of the increasing prevalence of VoIP calling, the evolution of consumer expectations, and the limitations of the Registered Location method, we believe it is imperative to continue working towards an automatic location solution for interconnected VoIP calls to 911. At the same time, given the lack of presently available solutions, we are not proposing to adopt specific ALI requirements for interconnected VoIP services at this time but instead seek comment on a potential framework for developing solutions that would enable us to consider implementing ALI for interconnected VoIP service at a later date.

32. We agree with commenters that the provision of ALI in the interconnected VoIP context is particularly challenging because of the increasing prevalence of “over-the-top” VoIP service, where the over-the-top VoIP service provider that offers interconnected VoIP service to consumers is a different entity from the broadband provider that provides the underlying Internet connectivity. In this scenario, there will frequently be circumstances where the over-the-top VoIP service provider has a direct connection to the consumer but does not have information about the user's location, while the broadband provider may be aware of the consumer's location based on the access point he or she is using but is not aware of when the consumer is placing an emergency call. In these situations, the most efficient and accurate ALI solution may require that both the broadband provider and the over-the-top VoIP service provider play a part.

33. Given the increasing use of interconnected VoIP services, we seek comment whether the Commission should adopt proposed general location accuracy governing principles that could be applied to interconnected VoIP service providers and over-the-top VoIP service providers but that would allow both types of providers the flexibility to develop technologically efficient and cost-effective solutions. The IETF GEOPRIV working group has defined a suite of protocols that allow broadband providers to provide location information to subscribers' devices through standard protocol interfaces. One governing principle might be that when an interconnected VoIP user accesses the Internet to place an emergency call, the underlying broadband provider must be capable of providing location information regarding the access point being used by the device or application, using industry-standard protocols on commercially reasonable and non-discriminatory terms. For example, a broadband provider might be able to satisfy its obligation by providing the access point location information to: (1) the end user, (2) the over-the-top VoIP service provider, and/or (3) the PSAP. Another general principle might be that when an interconnected VoIP user places an emergency call, the over-the-top VoIP service provider must either provide ALI directly ( e.g., using geo-location information generated by the device or application) or must support the provision of access point location information by the broadband provider as described above.

34. We seek comment on whether we should adopt these or any other governing principles. The Commission asks for comment on the appropriate timeframes for their implementation should the Commission decide to adopt them, considering the technological, cost, and operational aspects of the services and devices that the Commission proposes to subject to the new requirements. We also seek comment on the potential costs and benefits of this proposal. We seek comment on the most cost effective solution for providing reasonably accurate location information for interconnected VoIP services. These comments should address both currently available solutions and solutions under development. We seek detailed comment on the relative merits of any potential solutions, including the degree of location accuracy, the cost of implementing the location solution, the degree of coordination required to implement the solution, to which types of VoIP service providers the location systems would apply ( e.g. interconnected VoIP, outbound-only interconnected VoIP, “over-the-top” VoIP, etc. ) and any other limitations that may be relevant.

35. We seek comment on the potential benefits of extending location accuracy requirements to interconnected VoIP services. Are they similar to those described above for extending 911 requirements to outbound-only interconnected VoIP service, including decreased response time to emergencies; reductions in property damage, the severity of injuries, and loss of life; and an increase in the probability of apprehending criminal suspects? We recognize that the extent of any benefits will be in part a function of the degree to which current location methodologies provide incorrect or imprecise location information and thereby delay emergency personnel from arriving at the scene. To aid in the estimation of these benefits, we seek comment on the extent to which the receipt of imprecise or incorrect location information from interconnected VoIP service providers has resulted in problems for first responders. We seek precise quantification of the extent to which emergency personnel are deployed to incorrect locations and the difference in response times for calls initiated from interconnected VoIP service providers versus wireline and wireless service providers.

36. We invite comment on the costs associated with various VoIP location accuracy technologies and how these costs and solutions vary by type of VoIP service. These costs may include hardware upgrades, software updates, liability concerns, and any transaction costs. With respect to the last component, we understand that an interconnected VoIP service provider has a relationship with the user but does not have information about the user's location, while the network provider may be aware of the device or application's location based on the access point being used but is not aware of when an emergency call is being placed. We seek comment on how a solution to this problem can be found and how transaction costs between interconnected VoIP service providers and network providers can be reduced in order to provide the most cost effective and accurate location information. Finally, to the extent that there are any other costs and benefits that we should consider, we seek comment on the nature and quantification of their magnitude.

37. Privacy Concerns. We note that section 222 of the Communications Act requires carriers (including CMRS providers) to safeguard the privacy of customer proprietary network information (CPNI), including location information. Section 222 generally permits carriers to disclose CPNI “with the approval of the customer.” The statute provides heightened protection for location information: A customer shall not be considered to have given approval with regard to “call location information concerning the user of a commercial mobile service * * * or the user of an IP-enabled voice [interconnected VoIP] service” without “express prior authorization,” except that a carrier or interconnected VoIP service provider may provide such information “to providers of emergency services, and providers of emergency support services, solely for purposes of delivering or assisting in the delivery of emergency services.” How would section 222 apply to broadband providers if we were to amend our rules to require them to assist interconnected VoIP service providers in providing ALI? Could the Commission use authority ancillary to sections 222 and 615a-1 to require broadband providers to maintain the confidentiality of location information except as consistent with section 222? Could the Commission extend the exception to the prior authorization rule for providers of emergency services to broadband providers? Are there other sources of authority that would enable the Commission to address privacy concerns in this area?

38. Liability Protection. In the larger context of our effort to transition to NG911, we have asked whether some type of liability protection might be necessary or appropriate for those involved in the provision of emergency services. Today we revisit this question in the context of interconnected VoIP service providers and our proposal to extend ALI requirements to them and to broadband providers. Would a broadband provider be considered an “other emergency communications provider” subject to the liability protections of section 615a(a)? The Commission also seeks comment on the extent to which the Commission can address the liability of device manufacturers that include software capable of supporting ALI for interconnected VoIP service. Are there other sources of authority pursuant to which the Commission could address liability issues for service and equipment providers?

39. In the Location Accuracy NOI, we observed that “many new forms of IP-based voice communications are being offered to consumers via a variety of wireless services, devices, and applications for use on a wide range of new devices.” These IP-based communications are being carried over CMRS circuit-switched and data networks, as well as on Wi-Fi and other types of wireless connectivity and these communications may not be subject to our existing interconnected VoIP service or CMRS rules and therefore would not be included within the scope of our proposed revision to the interconnected VoIP service definition for 911 purposes. The record indicates that most smartphones, and many other new broadband-enabled mobile devices, now offer one or more location capabilities, such as A-GPS, network-based location determination, and Wi-Fi based positioning. Often, these capabilities work in combination to provide fairly accurate location determination. St. Louis County reports that “with the advent of the `smart phone', it has been observed that the location reported by the device is enormously more accurate than that currently provided by Phase II wireless technologies” and such phones should use their “inherent geo-based accuracy for reporting the location of the calling party.” Some commenters argue that an industry advisory group would be able to provide an orderly and standards driven approach to leveraging commercial location-based service for use in providing location information for emergency calls.

40. The introduction of more sophisticated mobile devices has allowed service providers to offer their customers a wide range of commercial location-based services. Such services allow users to navigate by car or on foot, find nearby points of interest such as restaurants or gas stations, tag photos, share their location information with friends, track jogging mileage, obtain coupons from nearby merchants, receive reminders of errands, or play location-based games. The location-based capabilities inherent in the design of these devices and applications could perhaps be leveraged when consumers contact 911 using non-CMRS-based voice services. These location-based services could potentially permit service providers and applications developers to provide PSAPs with more accurate 911 location information. Exploiting commercially available location determination technologies already in devices may offer a more cost efficient method by which to provide critical life saving information to PSAPs. The Commission seeks comment on whether we should encourage mobile service providers to enable the use of commercial location-based services for emergency purposes. We also seek comment on developing operational benchmarks to assist consumers in evaluating the ability of carriers to provide precise location information for emergency purposes based on the location-based capabilities of devices. Should the Commission develop such benchmarks, and if so, what should they be? In addition, the CSRIC should be directed to explore and make recommendations on methodologies for leveraging commercial location-based services for 911 location determination. CSRIC should also suggest whether it is feasible or appropriate for the Commission to adopt operational benchmarks that will allow consumers to evaluate carriers' ability to provide accurate location information. We seek comment on whether the adoption of such benchmarks would be effective in enabling consumers to be better informed about the ability of wireless devices and technologies to provide a PSAP with accurate location information.

41. The Commission also seeks comment on the costs and benefits of the approaches described above. As in our discussion above regarding location accuracy in the interconnected VoIP service context, we seek to encourage the development of cost-effective solutions for location-capable broadband voice technologies to support the provision of accurate location information to PSAPs and first responders. The Commission seeks comment on both currently available solutions and solutions under development, including the degree of location accuracy provided, the cost of implementing the solution, the degree of coordination required to implement the solution, the types of service, application, and network providers that would be affected, and any other limitations that may be relevant. The Commission also seeks comment on the potential benefits for the public and for public safety in terms of improved access to 911 services, reducing response time to emergencies, and enhancing the protection of life, safety, and property.

42. Background. In the Location Accuracy FNPRM, the Commission sought comment on whether it should extend location accuracy testing to indoor environments. Noting the growing number of wireless 911 calls, the Commission asked whether the Commission should update OET Bulletin 71 to include measurements in indoor environments.

43. Comments. Some commenters support the Commission's imposing an indoor testing requirement. Polaris “strongly advocates that the Commission establish testing and reporting requirements for in-building location accuracy and yield. With better information regarding the scope and impact of the challenges associated with indoor E911 location information, the Commission will be able to properly assess the best way to improve indoor performance (and the appropriate metrics that need to be put in place).” Polaris argues that “the Commission should hold workshops and other events to get input from industry members and advisory groups regarding indoor testing. Based on this input, the Commission should also consider requiring indoor testing and establishing a testing schedule.”

44. NENA argues that the growing number of “wireless-only households * * * may prompt a need for new indoor/outdoor testing to more accurately reflect consumer trends in the use of mobile devices.” However, NENA states that it “lacks sufficient quantitative information to recommend a particular fraction of testing that should be conducted indoors.” Finally, TruePosition argues that the testing structure “should encompass those environments from which most calls are made, including indoors. [Testing] must keep pace with consumer expectations and emergency response requirements.”

45. Carriers generally oppose expanding testing to indoor environments. T-Mobile argues that unlike outdoor data collection, “which can be performed by drive testing, there is no feasible way to perform indoor testing on any large scale.” However, if indoor testing is required, “T-Mobile agrees with the ESIF recommendation that testing representative indoor environments would be far preferable to repetitive application of indoor testing at the local level.” Sprint Nextel also opposes an indoor testing standard, stating that “the proportion of calls placed to 911 from indoors varies from PSAP to PSAP, from town to town, from county to county and from state to state” and that because of these variations, “adopting a specified level of indoor testing is not reasonable without further data.” Sprint Nextel further argues that “technology for performing indoor testing is still in the process of being developed,” and therefore, “[i]t would be premature to impose specific indoor testing requirements on the carriers at this time.”

46. AT&T also argues against an indoor testing requirement because, “[p]ractically speaking, AT&T already finds it difficult to conduct outdoor testing on private property,” and it anticipates that “gaining indoor building access for testing purposes will be even more difficult.” AT&T contends that “obtaining access to the number of indoor sites required to meet a 30% standard may be impossible.” Finally, Qualcomm argues that “[t]he FCC has no basis to use OET Bulletin No. 71 as the starting point for indoor compliance testing, and definitely should not make its `guidelines' mandatory or define a level of indoor versus outdoor testing.” Qualcomm states that “the level of 911 wireless calls made indoors versus outdoors is not only presently unquantified, but it is effectively irrelevant to the Commission's ultimate goal of improving the location accuracy of calls made from inside of buildings.”

47. Discussion. Publicly available reports, such as a March 2011 study from J. D. Power and Associates, indicate that indoor wireless calls have increased dramatically in the past few years, to an average of 56 percent of all calls, up from 40 percent in 2003. Indoor locations pose particular challenges for first responders, as the location of an emergency may not be as obvious as emergencies that occur outdoors. For example, since indoor incidents are often not visible to the first responder without entering the building, a location accuracy of 100/300 meters or cell-tower only would only identify the city block in which a building is located, which in urban environments could potentially contain thousands of apartments. Thus, we consider indoor location accuracy to be a significant public safety concern that requires development of indoor technical solutions and testing methodologies to verify the effectiveness of such solutions.

48. While we recognize the importance of indoor testing, we believe that further work is needed in this area and seek comment on whether the Commission should require indoor location accuracy testing and, if so, using what standards. Can outdoor testing methodologies be used in indoor environments, or should the standards for outdoor and indoor location accuracy testing be different? Are traditional sampling and drive testing methods used for outdoor testing appropriate for indoor testing, or do we need new testing methodologies tailored to indoor environments? What indoor location accuracy testing methodologies are available today, and what are the costs and benefits associated with each? We also seek comment on the percentage of emergency calls that are placed indoors today and a quantification of how much an indoor location accuracy testing standard could improve the ability of emergency responders to locate someone in an emergency.

49. We also refer the indoor testing issue to the CSRIC for further development of technical recommendations. We direct that the CSRIC provide initial findings and recommendations to the Commission, taking into account the cost effectiveness of any recommendations, within nine months of the referral of this issue to the CSRIC.

50. Wi-Fi Positioning. In the Location Accuracy NOI, the Commission sought comment on the potential use of Wi-Fi connections to support location accuracy determination in indoor environments, including both residential environments and public hotspots, such as coffee shops, airports, or bookstores. In the last several years, many more homes, offices, shops, and public spaces have installed Wi-Fi access points, and a growing number of mobile devices ( e.g., smartphones, laptops, and tablet PCs) use Wi-Fi positioning capability as one means of determining the device user's location. To locate a mobile device using Wi-Fi positioning, a technology vendor must first create a database of Wi-Fi access point information (a Wi-Fi Database). The caller's device must then measure information from visible Wi-Fi access points and send that information to a Wi-Fi Location Server that has access to the Wi-Fi Database. The device's location is then determined by the Wi-Fi Location Server. Since the radii for Wi-Fi access points are typically small, Wi-Fi positioning can produce reasonably accurate location information.

51. While some consumer location-based services rely on Wi-Fi positioning, Wi-Fi positioning is not currently used for emergency calls. According to the CSRIC 4C Report, Wi-Fi positioning is not being used to deliver emergency calls because: (1) Current deployments for Wi-Fi positioning are based on proprietary implementations; (2) support for transporting Wi-Fi measurements to the Wi-Fi Location Server are not available in the E911 control plane interface standards; (3) only a small fraction of mobile phones in the marketplace have Wi-Fi capability, although the penetration rate is growing rapidly with the increasing adoption of smartphones; and (4) use of Wi-Fi positioning reduces a portable device's battery life. Despite the fact that Wi-Fi positioning is not currently being used for emergency calls, the CSRIC Report states that the use of Wi-Fi positioning for emergency purposes warrants more detailed study.

52. T-Mobile has concerns about using Wi-Fi positioning for emergency calls and states that “WiFi Proximity only works in urban and dense suburban areas, and only with phones that have Wi-Fi receive capability. WiFi Proximity methods also share common weaknesses with A-GPS in many indoor environments (where access points cannot readily be located and documented) and in heavily forested rural areas (where access point densities are low).” T-Mobile also notes that “current E911 control plane interface standards do not support the use of WiFi Proximity location estimates for E911 purposes, and developing and maintaining the required database to support this method is operationally intensive and costly.” T-Mobile concludes by noting that “the WiFi Proximity method has considerable shortcomings: limited areas of applicability, potentially low reliability, only a subset of handsets that can be located, no standards support for E911, limited accuracy, and high cost. For these reasons, though the approach has found some success as a medium accuracy location method for some commercial-location-based smartphone applications, at present no vendors have even proposed using this method for E911.”

53. Network Access Devices. Many fixed broadband Internet access devices, particularly those provided to the consumer by the broadband service provider, are permanently located at a civic (street) address, which is known to the network provider. Indeed, in some access network architectures, the device is designed to cease functioning when it has been moved to a different network attachment point. Thus, when a caller uses a wireless phone that is communicating with a Wi-Fi access point or femtocell, the wireless carrier may be able to use the civic address to better locate the caller. For example, in a high- rise building, access to the civic address of the network access device could alleviate the need for vertical location information, since the civic address would include information that is capable of locating the source of the call, such as a floor or apartment number.

54. Discussion. We would not expect Wi-Fi positioning to serve as a replacement for other location technologies such as A-GPS or triangulation-based techniques, but could it complement these technologies, particularly in indoor or urban canyon settings where alternative location technologies such as A-GPS may not work reliably? Given the potential public safety benefits of using Wi-Fi positioning to locate emergency callers, we seek comment on whether, and if so, how, the Commission could encourage the use of location information that has been derived using Wi-Fi positioning for 911 purposes. How might location information derived from Wi-Fi positioning be conveyed to the PSAP, VoIP service provider, or broadband Internet access provider in both E911 and NG911 settings? Can network devices now or will they in the future be capable of providing Internet connectivity ( e.g., home gateways, hot spots, and set-top boxes)? If so, will they be able to self-locate using Wi-Fi positioning? What are the potential costs of including this capability in devices and how much time would be needed to implement it? The Commission seeks comment on the merits of these proposals.

55. We also seek comment on whether fixed broadband Internet access service providers could provision their network access devices to be capable of providing location information (civic or geospatial) to network hosts that attach to these network access devices. Further, we seek comment on the methods and technologies that would most effectively enable the provision of location information to network access devices. Because we recognize that it may be highly inefficient and burdensome for manufacturers of consumer equipment and software applications to make individual arrangements with every broadband provider to provide location information using network access devices, we seek comment on whether network access devices could provide location information using one or more recognized industry standards.

56. As in prior sections, the Commission seeks comment on the costs and benefits of the potential indoor accuracy solutions described above, including both currently available solutions and solutions under development. We recognize that the efficacy of any particular indoor solution may vary depending on the nature of the indoor environment, the broadband networks available within the environment, and the particular device, service, or application being used by the consumer to place an emergency call. We seek comment on the relative costs and benefits of each such solution and the costs and benefits of developing multiple solutions that can provide more accurate location information when combined.

57. We seek comment on our analysis that we have legal authority to adopt the proposals described herein. First, we believe that modifying the definition of interconnected VoIP service as proposed flows from the Commission's authority to regulate interconnected VoIP 911 service, which was ratified by the NET 911 Improvement Act. The NET 911 Improvement Act defines “IP-enabled voice service” as having “the meaning given the term `interconnected VoIP service' by § 9.3 of the Federal Communications Commission's regulations.” The legislative history of the NET 911 Improvement Act indicates that Congress did not intend to lock in the then-existing definition of interconnected VoIP service as a permanent definition for NET 911 Improvement Act purposes.

58. We also believe that we have authority to modify the 911 obligations of interconnected VoIP service providers. The NET 911 Improvement Act requires interconnected VoIP service providers to provide 911 service “in accordance with the requirements of the Federal Communications Commission, as in effect on July 23, 2008 and as such requirements may be modified by the Commission from time to time.” Thus, our authority to modify the manner in which interconnected VoIP service providers provide E911 service falls under Congress's explicit delegation to us to modify the requirements applying to interconnected VoIP service “from time to time.”

59. To the extent the regulation of network operators or others is reasonably ancillary to the effective performance of the Commission's statutory responsibilities to oversee the activities of interconnected VoIP service providers, and such regulation lies within our subject matter jurisdiction, as specified in Title I of the Communications Act, the Commission has authority, under section 4(i) of the Communications Act and judicial precedent regarding the Commission's ancillary jurisdiction to adopt requirements applicable to these other entities. Broadband, Internet access, and other network service providers fall within our general jurisdictional grant as providers of “interstate and foreign communication by wire or radio.” In addition, many VoIP 911 calls are carried over such networks. Accordingly, if a network used by the interconnected VoIP service provider does not accommodate the provider's efforts to comply with the 911 obligations that we establish for such provider pursuant to our express statutory obligations under the NET 911 Improvement Act, the element required for exercising ancillary jurisdiction over such networks— i.e., that the regulation is reasonably ancillary to the effective performance of our statutory duties—appears to be met, since the requirements we would impose on the network would be designed to enable the provider's compliance with the 911 obligations that we had promulgated under our express statutory mandate. To the extent the record that develops supports a conclusion that the regulation of other entities will enable interconnected VoIP service providers to fulfill their statutory duties as described herein, then we conclude that the Commission may exercise its ancillary authority to promulgate such regulations. We seek comment on this analysis.

60. We also ask commenters to address other potentially relevant sources of authority. For example, as to wireless broadband providers, does the Commission have authority, pursuant to Title III provisions, to impose license conditions in the public interest and adopt the proposals discussed herein to support the provision of 911/E911 services by interconnected VoIP service providers? How would the statutory goals of sections 1302(a) and (b) be furthered by the rules we propose?

61. In the Second Further Notice above, we seek comment on whether to include outbound-only interconnected VoIP service within the definition of interconnected VoIP service solely for purposes of our 911 rules and not for any other purpose. We note that since enactment of the NET 911 Improvement Act, Congress has passed two other statutes that refer to the definition of interconnected VoIP service in § 9.3 of the Commission's rules. In October 2010, the Twenty-First Century Communications and Video Accessibility Act (CVAA) become law. It requires, among other things, that the Commission promulgate regulations to “ensure the accessibility, usability, and compatibility of advanced communications services and the equipment used for advanced communications services by individuals with disabilities” and to do what is necessary to “achieve reliable, interoperable communication that ensures access by individuals with disabilities to an Internet protocol-enabled emergency network, where achievable and technically feasible.” The CVAA defines “advanced communications services” to include interconnected VoIP service as defined in § 9.3 of the Commission's rules “as such section may be amended from time to time,” as well as “non-interconnected VoIP” service, which is service other than interconnected VoIP service “that * * * enabled real-time voice communications that originate from or terminate to the user's location using Internet protocol or any success protocol; and * * * requires Internet protocol compatible customer premises equipment.” In December 2010, the Truth in Caller ID Act became law. It amends section 227 of the Communications Act to prohibit any person from engaging in caller ID spoofing in connection with “any telecommunications service or IP-enabled voice service.” That Act defines “IP-enabled voice service” to have “the meaning given that term by § 9.3 of the Commission's regulations (47 CFR 9.3), as those regulations may be amended by the Commission from time to time.”

62. We seek comment on whether, if we decide to amend the definition of interconnected VoIP service in § 9.3 of the Commission's rules, we should amend it for 911 purposes only. Would an amendment for 911 purposes only necessarily require the Commission to use the same definition when implementing the CVAA or the Truth in Caller ID Act? Would there be any necessary effect on the Commission's other rules that cross-reference § 9.3 of the Commission's rules?

63. The proceedings initiated by this Second Further Notice of Proposed Rulemaking and this Notice of Proposed Rulemaking shall be treated as a “permit-but-disclose” proceedings in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b) of the Commission's rules. In proceedings governed by § 1.49(f) of the Commission's rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

64. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments in response to this Second Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ .

• Paper Filers: Parties that choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

65. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

66. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 604, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. Written public comments are requested in the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this Second Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking as set forth on the first page of this document, and have a separate and distinct heading designating them as responses to the IRFA.

68. The Second Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking contain proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in this document, as required by PRA. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status reviews to be complete and based on the best available scientific and commercial information, we request information on the Crescent Dunes aegialian scarab, Crescent Dunes serican scarab, large aegialian scarab, and Giuliani's dune scarab from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. For each of these species, 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, delisting, or downlisting determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ), which are:

(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.

If, after the status reviews, we determine that listing any of the four sand dune beetle species 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, within the geographical range currently occupied by each of the four sand dune beetle species, we request data and information on:

(1) What may constitute “physical or biological features essential to the conservation of the species;”

(2) Where these features are currently found; and

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

In addition, we request data and information on “specific areas outside the geographical area occupied by the species” that are “essential to the conservation of the species.” Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if 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 these status reviews by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Information and supporting documentation that we received and used in preparing this finding is available for you to review at http://www.regulations.gov, or you may make an appointment during normal business hours at the U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

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

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

On February 2, 2010, we received a petition dated January 29, 2010, from WildEarth Guardians (hereinafter referred to as the petitioner), requesting that we list six species of sand dune beetles in Nevada as endangered or threatened with critical habitat under the Act. The petition clearly identified itself as a petition and included the appropriate identification information for the petitioner, as required in 50 CFR 424.14(a).

In a March 12, 2010, letter to the petitioner, we acknowledged receipt of the petition, and responded that we reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not necessary. We also stated that we anticipated making an initial finding in Fiscal Year 2010. This finding addresses the petition.

The Crescent Dunes aegialian scarab ( Aegialia crescenta ), Hardy's aegialian scarab ( A. hardyi ), large aegialian scarab ( A. magnifica ), Crescent Dunes serican scarab ( Serica ammomenisco ), Sand Mountain serican scarab ( S. psammobunus ), and Giuliani's dune scarab ( Pseudocotalpa giuliani ) were all previously designated by the Service as category 2 candidate species, then defined as taxa for which the Service had on hand information indicating that proposing to list as endangered or threatened was possibly appropriate, but for which persuasive data on biological vulnerability and threats were not available to support proposed rules (59 FR 58982; November 15, 1994). In the February 28, 1996, Candidate Notice of Review (CNOR) (61 FR 7595), we adopted a single category of candidate species defined as follows: “Those species for which the Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule to list but issuance of the proposed rule is precluded.” In previous CNORs, species matching this definition were known as category 1 candidates for listing. Thus, the Service no longer considered category 2 species as candidates and did not include them in the 1996 list or any subsequent CNORs. The decision to stop considering category 2 species as candidates was designed to reduce confusion about the status of these species and to clarify that we no longer regarded these species as candidates for listing.

The Service proposed to list Giuliani's dune scarab as endangered or threatened in 1978 (43 FR 35636; August 10, 1978), citing the effect of off-road vehicle (ORV) use. The Service stated that ORV use compacts dead organic matter accumulated on dune slopes and prevents its buildup, thereby destroying the larval habitat of the beetle. The proposal to list also found that there was a lack of State or Federal laws protecting the species. Included in the proposed rule was a proposal to designate critical habitat at Big Dune, Nye County, Nevada, at the time the only known location for the species. The Service withdrew the proposal to list Giuliani's dune scarab after a temporary 2-year period mandated by Congress for proposed rules to be finalized had expired (45 FR 65137; October 1, 1980).

The six species of sand dune beetles included in the petition and evaluated in this finding are endemic, terrestrial invertebrates of Great Basin and Mojave Desert sand dunes of Nevada (Table 1). All of the petitioned species are from the phylum Arthropoda, class Insecta, order Coleoptera, and family Scarabaeidae. Three of the species are in the genus Aegialia, two are in the genus Serica, and one is in the genus Pseudocotalpa (Table 1). There are three distinct sand dune beetle and dune system groupings (Sand Mountain/Blowsand Mountains; Crescent Dunes; and Big Dune/Lava Dune) (Table 1; WildEarth Guardians 2010, p. 5). Both in the petition and in our files, there is little to no information on population sizes or population trends for any of these sand dune beetle species.

The petition provided information regarding the six species' ranking according to NatureServe (WildEarth Guardians 2010, pp. 3-4). The petitioned sand dune beetles are all ranked as critically impaired at the global, national, or State level (WildEarth Guardians 2010, pp. 3-4). While the petition states that the “definition of `critically impaired' is at least equivalent to definitions of `endangered' or `threatened' under the ESA [Endangered Species Act],” this is not an appropriate comparison. According to its own Web site, NatureServe's assessment of any species “does not constitute a recommendation by NatureServe for listing” under the Act ( http://www.natureserve.org/explorer/ranking.htm ). In addition, NatureServe's assessment procedures include “different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” ( http://www.natureserve.org/explorer/ranking.htm ).

Hardy's aegialian scarab and the Sand Mountain serican scarab occur only at Sand Mountain and the nearby Blowsand Mountains dune systems, Churchill County, Nevada (Gordon and Cartwright 1977, p. 47; Bechtel et al. 1983, p. 476; Hardy and Andrews 1987, p. 174; The Nature Conservancy (TNC) (2004, pp. 23, 26). These two dune systems are located approximately 30 miles (mi) (48.3 kilometer (km)) east-southeast of Fallon, Churchill County, Nevada. Sand Mountain is a star dune (roughly star-shaped) and ranges from 3,895 to 4,650 feet (ft) (1,187.2 to 1,417.3 meters (m)) in elevation. It occupies approximately 12 square miles (sq. mi) (32 sq. km) on mostly Bureau of Land Management (BLM) lands, though a portion of the dune may also occur on State and private lands (Bechtel et al. 1983, p. 477; Nevada Natural Heritage Program 2006, p. 43). Blowsand Mountains is a complex of star and linear dunes occurring partially on Fallon Naval Air Station (NAS) lands and BLM lands about 15.6 mi (25 km) southwest of Sand Mountain (Bechtel et al. 1983, p. 477; Nachlinger et al. 2001, pp. A12-1, A12-11). Blowsand Mountains rise to an elevation of 4,593 ft (1,400 m) and occupy 3.6 sq. mi (9.2 sq km) (Bechtel et al. 1983, p. 477).

During a 1981 arthropod survey, Hardy's aegialian scarab was found to be common in sand around the perennial shrub vegetation at the base of Sand Mountain, but less common in similar habitat at Blowsand Mountains, which the surveyor suspected was due to the limited area to which he had access (Rust 1981, pp. 13, 29). An undescribed species of Serica, subsequently named S. psammobunus (Sand Mountain serican scarab) (Hardy and Andrews 1987, p. 174), was found to be very common on both dune systems (Rust 1981, p. 14).

The Crescent Dunes aegialian scarab and Crescent Dunes serican scarab are known to occur only at Crescent Dunes northwest of Tonopah, Nye County, Nevada (Gordon and Cartwright 1977, p. 45; Hardy and Andrews 1987, p. 173). The Crescent Dunes are a small complex of crescent-shaped dunes (WildEarth Guardians 2010, p. 8). The highest dune rises to 5,000 ft (1,524 m) in elevation (WildEarth Guardians 2010, p. 8). These dunes occur on BLM lands and are managed by the agency's Battle Mountain District, Tonopah Resource Area (BLM 1997, p. 21).

The petition provided no information, and we have no information in our files, on the population sizes or population trends of the Crescent Dunes aegialian scarab or the Crescent Dunes serican scarab.

The large aegialian scarab and Giuliani's dune scarab occur only at Big Dune and Lava Dune in the Amargosa Desert, Nye County, Nevada (Gordon and Cartwright 1977, p. 43; Rust 1985, p. 105). These dunes are located about 4 mi (6.4 km) apart (WildEarth Guardians 2010, p. 15). Big Dune is a complex star dune that reaches 2,731 ft (832.4 m) in elevation and extends across approximately 1.5 sq mi (3.9 sq km). Lava Dune is sand that is trapped at the base of a cinder cone, has an elevation of 2,800 ft (853.4 m), and covers about 1.0 sq mi (2.6 sq km) (WildEarth Guardians 2010, p. 15). Both dunes are managed by the BLM (WildEarth Guardians 2010, p. 15).

The petition provided no information on the population sizes or trends of the large aegialian scarab or the Giuliani's dune scarab. We have anecdotal information that these two beetle species occurred in “huge” numbers at Big Dune as recently as 2007 (Murphy 2007, p. 1). We have no information in our files on the population trends of either species.

There is limited life history information for the six petitioned sand dune beetle species available in the petition, references cited in the petition, and in our files. Many genera of Scarabaeidae in North American deserts, including species of the genera Aegialia and Serica, are found in sand dunes (Gordon and Cartwright 1977, p. 42; Hardy and Andrews 1987, p. 178). Sand dunes supply the necessary requirements of an easily penetrable substrate that provides ready access to higher levels of moisture and protection from temperature extremes; sand is easily penetrable by both larvae and adults, and wet sand levels are generally no more than 1.6 to 3.3 ft (0.5 to 1.0 m) beneath the surface (Hardy and Andrews 1987, p. 175). Plant roots on more stable dunes provide food for some Scarabaeidae, while detritus collected and buried in pockets by the wind provides food for detritivores (beetles and other animals that feed on decomposing organic matter) (Hardy and Andrews 1987, p. 175). Many genera of Scarabaeidae using dune areas seem to be unable to survive elsewhere in desert areas, including some species of Aegialia and Serica (Hardy and Andrews 1987, p. 175).

The six beetles vary in their dispersal abilities. The three aegialian scarabs (Crescent Dunes, Hardy's, and large) are all flightless, a characteristic that may have facilitated population isolation and resulting speciation (formation of a new species) (Rust and Hanks 1982, p. 319; Porter and Rust 1996, p. 717; Porter and Rust 1997, p. 306). Giuliani's dune scarab is capable of flight (Hardy 1976, p. 301). We have no information on the dispersal abilities of the two serican scarabs (Crescent Dunes and Sand Mountain) in our files, nor was any provided in the petition.

Hardy's aegialian scarab is a flightless detritivore that is active in winter at Sand Mountain and Blowsand Mountains; both adults and larvae are active in months having a mean monthly temperature near or below 50 °F (10 °C) (Rust 1981, pp. 13, 27; Rust and Hanks 1982, p. 324). The Sand Mountain serican scarab is active in early summer on both dune systems (Rust 1981, p. 14; Hardy and Andrews 1987, p. 174).

Giuliani's dune scarab is restricted to the vegetated sandy areas around the base of the major dune at Big Dune (43 FR 35639; August 10, 1978). Larrea tridentata (creosote bush) and Petalonyx thurberi (sandpaper plant), common shrubs found here, accumulate plant debris at their bases. This accumulated plant debris is an important food source and is the larval habitat of the beetle. Adults of Giuliani's dune scarab emerge in late spring and fly nightly, hovering over dune shrubs, and mate on the sand surface; the adults do not feed and larvae are found beneath dune shrubs (Rust 1985, p. 109).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 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 threatened or endangered 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 shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.

In making this 90-day finding, we evaluated whether information regarding threats to the six sand dune beetle species, 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 petition identified a few threats as common to many of the six petitioned sand dune beetles. The petition identified the following as threats to all six sand dune beetle species: Loss, degradation, and fragmentation of habitat due to ORV recreation and potential construction of solar facility projects; inadequate existing regulatory mechanisms due to the lack of Federal or State regulatory protection; and increased vulnerability to extinction due to isolated populations and limited habitat (WildEarth Guardians 2010, pp. 6-8, 11, 18, 19). These are described as general threats in the petition, but there is little or no information in the petition that associates the threats with existing or probable impacts on the individual sand dune beetle species.

For two species, Hardy's aegialian scarab and Sand Mountain serican scarab, both of which are endemic to Sand Mountain and Blowsand Mountains in Churchill County, we have information in our files on ORV use and existing regulatory mechanisms. Due to the three distinct geographic groupings of the six petitioned species, where appropriate, threats are assessed below by dune system: Sand Mountain and Blowsand Mountains, Crescent Dunes, and Big Dune and Lava Dune.

In general, the petition identifies ORV use as the most serious threat to the six sand dune beetles (WildEarth Guardians 2010, p. 6). The petition notes that ORV recreation has increased substantially over the past few decades, that it accounted for over 400,000 visitor days on lands administered by the BLM in 2000 alone, and that the conditions of sand dune habitats in Nevada are influenced mostly by ORV use (Wildlife Action Plan Team (WAPT) 2006, p. 238).

The petition states that the six beetles depend on vegetation around the bases of the sand dunes for adult or larval forage, mating sites, and protective cover (Hardy 1976, pp. 301-302; Rust 1985, pp. 108-109; Hardy and Andrews 1986, p. 136; Hardy and Andrews 1987, pp. 175-176, 178). The petition cites several scientific studies that have documented the severe negative impacts that ORVs can have on insects in the Order Coleoptera (Van Dam and Van Dam 2008, p. 411). Heavy use by ORVs can destroy dune vegetation (Luckenbach and Bury 1983, p. 280; WAPT 2006, pp. 238-239), eliminating and fragmenting beetle habitat and reactivate sand dune movement (Wiggs et al. 1995, as cited by Van Dam and Van Dam 2008, p. 411). In addition, ORV use may disrupt beetle mating activity (Luckenbach and Bury 1983, p. 277), may potentially kill individual beetles (Van Dam and Van Dam 2008, p. 416), and may facilitate the spread of invasive plant species (WAPT 2006, p. 238). Sand dune systems are dynamic, and the establishment of invasive plant species can stabilize dunes, preventing sand movement and altering habitat functions. Invasive plant species may also displace preferred vegetation used by beetles. Research also suggests that areas unprotected from ORV use contain much smaller populations of Coleopterans than in protected areas (Van Dam and Van Dam 2008, p. 415).

The petition also noted that a solar energy facility has been proposed on BLM lands near Crescent Dunes (WildEarth Guardians 2010, p. 11). The BLM is also currently reviewing a proposal to develop solar energy on public land near the Big Dune Area of Critical Environmental Concern (ACEC) (WildEarth Guardians 2010, p. 18). The petition claims that, if the two solar facilities are approved, the increased activity from their construction and maintenance may disturb beetles and their habitat (WildEarth Guardians 2010, p. 18). As noted above, these threats are discussed below by dune system.

Hardy's aegialian scarab and the Sand Mountain serican scarab occur only at Sand Mountain and the nearby Blowsand Mountains, Churchill County. The petition provided information on possible threats to these species from ORV recreation at Sand Mountain and Blowsand Mountains. In addition, we have information in our files regarding potential impacts from the use of Blowsand Mountains as a military bombing range. We discuss these potential threats below.

The petition indicates that Sand Mountain is a 4,795-ac (1,941-ha) designated Special Recreation Management Area (SRMA) managed by the Stillwater Field Office of the BLM (WildEarth Guardians 2010, p. 14). The petition states that ORV use can be intense at times and that BLM has “closed” some areas to ORV use (BLM 2001, pp. REC-3, REC-4; WildEarth Guardians 2010, p. 14). The petition also states from an anonymous source that “some” users ignore restrictions and ride into areas that were closed in 2001 (WildEarth Guardians 2010, p. 14). The petition does not provide additional information pertaining to the number of or frequency with which these users violate restrictions and ride into closed areas.

Information in our files indicates that recreational ORV use is currently restricted to a designated trail system that prohibits ORV use of vegetated areas (72 FR 24253; May 2, 2007). Most arthropods found during a survey at Sand Mountain occurred in association with perennial shrub vegetation at the base of the dune and, except while traveling, no species were found to inhabit open sand (Rust 1981, p. 2). On December 12, 2006, BLM implemented an emergency restriction on motorized use on 3,985 ac (1,612 ha) of land to prevent adverse effects to the habitat of the Sand Mountain blue butterfly ( Euphilotes pallescens arenamontana ) (72 FR 12187; March 15, 2007). These restrictions reduce the route system within and outside of the SRMA from an estimated 200 mi (320 km) to 21.5 mi (34.4 km) (72 FR 24253; May 2, 2007). This returns the length of the route system to about the length of the system in 1980. The emergency restriction will remain in effect until the Resource Management Plan has been updated or until the Field Office Manager determines it is no longer needed (72 FR 12187; March 15, 2007). The Service has found that implementation of this closure in 2006 effectively reduces the threat posed by ORVs to the Sand Mountain blue butterfly's habitat and ensures that further habitat destruction is prevented and will ensure natural shrub regeneration over the long-term (72 FR 24253; May 2, 2007). The reduction of this ORV threat also applies to Hardy's aegialian scarab and Sand Mountain serican scarab habitat at Sand Mountain. Thus, the extent and magnitude of potential impacts to Hardy's aegialian scarab and the Sand Mountain serican scarab from ORV use have decreased since the petition's 2001 citation and are likely to remain so. In addition, the petition's statement of closed areas as referenced in BLM (2001) is incorrect. The BLM document (BLM 2001, p. REC-4) cites a Federal Register Notice published on September 15, 1988 (53 FR 35917). This Federal Register Notice does not indicate closed areas to ORV use at Sand Mountain Recreation Area but indicates their use is limited in vegetated areas. We do not have information in our files on potential violations of the 2006 ORV restrictions. Therefore, we believe the petition's information regarding ORV threats to these species' habitat at Sand Mountain is outdated and inaccurate. We discuss the adequacy of BLM's regulation of this trail system in protecting the habitat of the dune beetles at Sand Mountain under Factor D below.

As indicated above, Blowsand Mountains occur partially on Fallon NAS lands and partially on BLM lands (Nachlinger et al. 2001, pp. A12-1, A12-11). The petition does not provide specific information related to ORV use at Blowsand Mountains.

According to information in our files, the Blowsand Mountains occur within the Fallon Range Training Complex Military Operation Area, a 26-million-acre (ac) (10.5-million hectare (ha)) area used by the Naval Strike and Air Warfare Center (TNC 2004, p. 11). Because a portion of the Blowsand Mountains dune system is used for inert and live air-to-ground ordnance drops by the military, much of the area is not open to public access and therefore is not used for ORV recreation (TNC 2004, p. 12). According to TNC (2004, p. 48), “The only activities that take place on this dune system are those related to the military training mission of NAS Fallon.” Therefore, the petition's assertions regarding ORV use at Blowsand Mountains impacting Hardy's aegialian scarab and the Sand Mountain serican scarab are not supported.

Our files indicate, as noted above, that much of the Blowsand Mountains dune system is within an active practice bombing range. A conservation assessment of the Blowsand Mountains dune system has been completed by a team comprised of individuals from the BLM, Fallon NAS, TNC, Fallon Paiute Shoshone Tribe, and Walker River Paiute Tribe (TNC 2004). Threats identified to the Blowsand Mountains dune system by the assessment team were related to ordnance drops, detonation of unexploded ordnance, and invasive weed transport during the removal of ordnance (TNC 2004, p. viii). As part of the conservation assessment, the stressors at the Blowsand Mountains dune system (habitat for Hardy's aegialian scarab and the Sand Mountain serican scarab) were evaluated. Only direct mortality to dune biota from ordnance drops was rated as a high-severity threat, but because it was of small geographic scope, the overall stress ranking was determined to be low (TNC 2004, p. 48). The assessment team also evaluated the viability of the Blowsand Mountains dune system based on its size outside of the heavy-effect bombing area, its condition based on invasive species, and its connection to a current source of sand. The assessment team determined it to have an overall viability score of “good” based on size and condition of the system and its landscape context (TNC 2004, p. 32). Because the stress ranking from the conservation assessment was considered low for ordnance drops and the overall viability of Blowsand Mountains was determined to be good, potential impacts to populations of Hardy's aegialian scarab and the Sand Mountain serican scarab from bombing practice at Blowsand Mountains are considered low.

Based on the information available in the petition and our files, we have determined that there is not substantial information to indicate that listing Hardy's aegialian scarab or the Sand Mountain serican scarab located at Sand Mountain and Blowsand Mountains may be warranted due to the present or threatened destruction, modification, or curtailment of their habitat or range.

The Crescent Dunes aegialian scarab and Crescent Dunes serican scarab occur only at Crescent Dunes, Nye County (Gordon and Cartwright 1977, p. 44; Hardy and Andrews 1987, p. 173). The petition provided information on possible threats from ORV use at Crescent Dunes. In addition, the petition provided information related to potential impacts from a solar facility proposed near the dunes. We discuss these potential threats below.

According to the petition, Crescent Dunes is a designated SRMA on 3,000 ac (1,214 ha) of public lands administered by the Tonopah Field Office of the BLM (BLM 1997, p. 21). The SRMA is open to ORV use year-round (WildEarth Guardians 2010, p. 11). Though no part of the dunes is reserved for the protection of sensitive species, ORVs are required to stay on roads, trails, and unvegetated dunes (WildEarth Guardians 2010, p. 11). The petition does not provide any specific information regarding impacts to the Crescent Dunes aegialian scarab and Crescent Dunes serican scarab from ORV use. However, the petition provided information regarding an opinion from The Nature Conservancy that recreation appeared to be a high priority at Crescent Dunes with no regard given to protection of the unique animals of the dune system and no analysis of the impacts of ORVs to these species or their habitat (BLM 1994, p. 5-116). We are unaware of any management plans or emergency restrictions being placed on motorized use at Crescent Dunes to protect the Crescent Dunes aegialian scarab and the Crescent Dunes serican scarab or their habitat. The adequacy of BLM's regulations regarding this trail system in protecting the habitat of the dune beetles at Crescent Dunes is discussed under Factor D below.

We have no additional information in our files related to this potential threat.

According to the petition, Tonopah Solar Energy, LLC submitted a right-of-way application and a plan of development to the BLM's Tonopah Field Office for the construction and operation of a solar power generation facility (Crescent Dunes Solar Energy Project), associated transmission facilities to the Anaconda Substation located 6 mi (9.7 km) north of the project area, and access roads (74 FR 61364; November 24, 2009). This facility would have a generating capacity of up to 160 megawatts (MW) of electricity based on concentrating solar power technology. The proposed plant, including the heliostat array, power block, and associated facilities, would use approximately 1,600 ac (648 ha) of BLM-managed lands northwest of Tonopah, Nevada. This project is considered a “fast-track” project. According to the BLM Nevada State Office Web site, fast-track projects are those where the companies involved have demonstrated to BLM that they have made sufficient progress to formally start the environmental review and public participation process. Projects that were cleared for approval by the Department of the Interior by December 2010 are eligible for economic stimulus funding under the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5). All renewable energy projects proposed for BLM-managed lands receive full environmental reviews required by the National Environmental Policy Act, as amended (42 U.S.C. 4321 et seq. ) (BLM 2010a, p. 1). The scoping period for this project closed on December 24, 2009 (74 FR 61364; November 24, 2009). The petition claims that increased activity from construction and maintenance of the proposed solar array, which would be located adjacent to the sand dunes, may disturb beetles and their habitat.

We have no additional information in our files on this potential threat other than that a draft environmental impact statement is currently being prepared (BLM 2010b, p. 8).

Based on the information available in the petition and our files, we have determined that there is substantial information to indicate that listing the Crescent Dunes aegialian scarab and Crescent Dunes serican scarab located at Crescent Dunes may be warranted due to the present or threatened destruction, modification, or curtailment of their habitat or range.

The large aegialian scarab and Giuliani's dune scarab occur only at Big Dune and Lava Dune, Nye County (Gordon and Cartwright 1977, p. 43; BLM 1998a, p. 3-41), which are managed by the Southern Nevada District Office of the BLM. The petition provided information on possible threats from ORV use at Big Dune and Lava Dune. In addition, the petition provided information related to potential impacts from a solar facility proposed near the dunes. We discuss these potential threats below.

According to information provided by the petition, there is an 11,600-ac (4,694-ha) Big Dune SRMA, which includes a 1,920-ac (777-ha) ACEC at Big Dune (BLM 1998b, pp. 7, 23; WildEarth Guardians 2010, p. 18). The objective of the SRMA is to provide for moderate, casual ORV use; camping; and other casual recreation opportunities. The ACEC was established in 1998 to protect beetle habitat, but only 200 ac (81 ha) of the 1,920 ac (777 ha) ACEC were set aside specifically as beetle habitat (BLM 1998b, p. 23). This is considered inadequate by the petitioner when compared to the Service's previous proposal to list Giuliani's dune scarab and designate critical habitat over the entire dune in 1978 (43 FR 35636; August 10, 1978) (WildEarth Guardians 2010, p. 18). In addition, ORV use is allowed on the designated route system within the 200 ac (81 ha) specified as beetle habitat (BLM 1998b, p. 23). Within the entire 1,920-ac (777-ha) ACEC, speed-based, competitive ORV events are prohibited (BLM 1998b, p. 23). Because nonvegetated portions of the Big Dune SRMA outside of designated beetle habitat are managed as open to ORV use, the petition indicates that heavy ORV use occurs over large areas of the rest of Big Dune and the immediate surrounding area (BLM 1998b, p. 24; WildEarth Guardians 2010, p. 18). Lava Dune has no special management designation. The petition does not provide any specific information regarding impacts to the large aegialian scarab and Giuliani's dune scarab from ORV use at Lava Dune. The adequacy of BLM's regulations regarding ORV use at Big Dune and Lava Dune is discussed under Factor D.

We have no additional information in our files related to this potential threat.

According to the petition, Pacific Solar Investments, Inc., submitted a right-of-way application and plan of development to the BLM's Southern Nevada District Office for the construction, operation, maintenance, and termination of a solar power generation facility (Amargosa North Solar Project), transmission substation, and switchyard facilities (74 FR 66146; December 14, 2009). This facility would have a generating capacity of about 150 MW of electricity based on concentrating solar power technology and would be located on about 7,500 ac (3,035 ha) of BLM-managed lands in the Amargosa Valley, Nye County. A portion of Big Dune lies within the proposed project area. All renewable energy projects proposed for BLM-managed lands receive full environmental reviews required by the National Environmental Policy Act. The scoping period for this project closed on February 12, 2010 (74 FR 66146; December 14, 2009).

According to information in our files, the reconnaissance-level biological survey completed for the plan of development states that “due to the proximity of the endemic beetles ACEC, it will be important to address the potential affect [sic] of any adjacent development to the continued habitat function and viability of this ACEC” (CH2MHILL 2008, p. 3-1). We have no additional information in our files on this potential threat to the large aegialian scarab and Giuliani's dune scarab at Big Dune.

Based on the information available in the petition and our files, we have determined that there is substantial information to indicate that listing the large aegialian scarab and Giuliani's dune scarab at Big Dune and Lava Dune may be warranted due to the present or threatened destruction, modification, or curtailment of their habitat or range.

We find that the petition and information in our files provide substantial information that ORV recreation is a potential threat to the Crescent Dunes aegialian scarab and Crescent Dunes serican scarab that occur at Crescent Dunes and to the large aegialian scarab and Giuliani's dune scarab that occur at Big Dune and Lava Dune. We also find that the petition provides substantial information that solar energy development may be a threat to the Crescent Dunes aegialian scarab, Crescent Dunes serican scarab, large aegialian scarab, and Giuliani's dune scarab at Crescent Dunes and Big Dune.

While ORV use occurs at Sand Mountain, we find that the comprehensive, mandatory route restrictions put in place in 2006 (72 FR 12187; March 15, 2007; 72 FR 24253; May 2, 2007) to protect the shrub habitat used by the Sand Mountain blue butterfly also protects the two dune beetles (Hardy's aegialian scarab and Sand Mountain serican scarab) as they also depend upon this shrub habitat (see also Factor D discussion). We do not have information indicating that violations of the 2006 ORV restrictions occur, or occur frequently enough to impact the shrub habitat at Sand Mountain. Off Road Vehicle recreation does not occur throughout much of the Blowsand Mountains' dune system because much of this area is not open to public access due to its location within the Fallon Range Training Complex Military Operation Area, an active practice bombing range. The bombing operations at the Blowsand Mountains are of limited geographic scope, and therefore have been ranked as a low stress by an interagency assessment team. For these reasons, we do not find that the petition provides substantial information indicating that the Hardy's aegialian scarab or Sand Mountain serican scarab may be warranted for listing under Factor A, the present or threatened destruction, modification, or curtailment of their habitat or range.

Therefore, based on our evaluation of the information available in the petition and our files, we find that the petition does not present substantial information to indicate that listing Hardy's aegialian scarab and the Sand Mountain serican scarab may be warranted, but the information available in the petition and in our files does present substantial information to indicate that listing may be warranted for the Crescent Dunes aegialian scarab, Crescent Dunes serican scarab, the large aegialian scarab, and Giuliani's dune scarab due to the present or threatened destruction, modification, or curtailment of their habitat or range.

The petition notes that collection of individuals for scientific purposes has occurred over the years, but does not provide information about whether this constitutes a threat to any of the six sand dune beetle species (WildEarth Guardians 2010, p. 7).

The petition does not provide information that overutilization for commercial, recreational, scientific, or educational purposes has negatively impacted any of the six petitioned beetle species. We have no information in our files to indicate that overutilization for commercial, recreational, scientific, or educational purposes is a threat to any of the six species.

Therefore, based on our evaluation of the information provided in the petition, we do not consider the petition or information in our files to provide substantial scientific or commercial information indicating that listing of any of the six petitioned beetles may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes.

According to information provided by the petition, nighthawks ( Chordeiles minor ) were observed preying on Andrew's dune scarab ( Pseudocotalpa andrewsi ) at Algodones Dunes in southern California (Hardy and Andrews 1986, p. 137), a dune system similar to those used by the petitioned beetles (WildEarth Guardians 2010, p. 7). Foxes ( Vulpes macrotis ) and coyotes ( Canis latrans ) may also prey on sand dune beetles (Hardy and Andrews 1986, p. 137). Rust (1985, p. 109) stated that no predation of Guiliani's dune scarab was observed at Big Dune or Lava Dune although many potential predators were observed.

The petition states that disease is not known to be a threat to any of the six petitioned beetles (WildEarth Guardians 2010, p. 7).

The petition does not provide specific information that predation or disease has negatively impacted the six petitioned sand dune beetles. While predation of the sand dune beetles would be a common occurrence, it is unknown whether predation may be occurring at such a level that it is negatively affecting these species. We do not have information in our files to indicate that predation or disease is a potential threat to any of these species.

Therefore, based on our evaluation of the information in the petition and in our files, we have determined that the petition does not provide substantial information to indicate that listing any of the six sand dune beetles may be warranted due to disease or predation.

The petitioned dune beetles occur on Federal lands managed either by the BLM or the Department of Defense. The populations on BLM lands all occur within or adjacent to areas managed primarily for ORV use and designated as SRMAs. The petition states that none of the six petitioned sand dune beetle species has legal protection (WildEarth Guardians 2010, pp. 7-18). All six petitioned species are listed as BLM sensitive species (BLM 2007, pp. J-3, J-35). According to information in our files, BLM sensitive species are defined as “species that require special management or considerations to avoid potential future listing” (BLM 2008, Glossary p. 5). The stated objective for sensitive species is to initiate proactive conservation measures that reduce or eliminate threats to minimize the likelihood of and need for listing (BLM 2008, Section 6840.02). Conservation, as it applies to BLM sensitive species, is defined as “the use of programs, plans, and management practices to reduce or eliminate threats affecting the status of the species, or improve the condition of the species' habitat on BLM-administered lands” (BLM 2008, Glossary p. 2).

The petition also notes that although some of the petitioned beetles may occur at “preliminary focal areas” identified in the Nevada Wildlife Action Plan, this plan does not prescribe conservation measures for sensitive invertebrates in Nevada (WAPT 2006). Moreover, the petition points out that Nevada Revised Statute 501.110 provides only for the protection of invertebrates classified as either mollusks or crustaceans, and not other invertebrates. Under current statute, therefore, beetles cannot be provided State protection (WildEarth Guardians 2010, p. 7).

The petition provides some information on the Federal management of the three SRMAs at which the dune beetles occur (WildEarth Guardians 2010, pp. 11, 14-15, 18-19). Each of the SRMAs includes habitat for only two of the six petitioned species and none of these species occur at more than one SRMA, although some of the six petitioned beetles also occur at other nearby dune systems. In addition, each of the three SRMAs has specific management restrictions. For these reasons, existing regulatory mechanisms are more easily assessed for the pairs of species that are unique to each SRMA. Occurrences outside of the SRMAs are discussed within this framework.

Hardy's aegialian scarab and the Sand Mountain serican scarab are known only from Sand Mountain and nearby Blowsand Mountains. Sand Mountain is a designated SRMA managed by the BLM Stillwater Field Office that extends over 4,795 ac (1,941 ha). The petition states that the BLM has closed some areas to ORV use (BLM 2001, pp. REC-3 and REC-4; WildEarth Guardians 2010, p. 14). The petition also cites a 2009 anonymous source who stated that some ORV users have ignored these 2001 restrictions and ride in closed areas (WildEarth Guardians 2010, p. 14).

We have information in our files that the ORV restrictions mentioned in the 2001 Carson City Field Office Resource Management Plan (CCRMP) (BLM 2001) cited by the petition have been superseded by more comprehensive ORV restrictions implemented in 2006 to prevent adverse effects to the habitat of the Sand Mountain blue butterfly (72 FR 12187; March 15, 2007). The Service has previously found that implementation of this closure, which includes a designated ORV route system throughout the vegetated portions of the SRMA, effectively reduces the threat posed by ORVs to the Sand Mountain blue butterfly's habitat and ensures that further habitat destruction is prevented and will ensure, over the long-term, natural shrub regeneration (72 FR 24253; May 2, 2007). The reduction of this ORV threat to the butterfly's habitat also applies to this shared habitat with Hardy's aegialian scarab and the Sand Mountain serican scarab since these two beetles occupy similar habitat as the Sand Mountain blue butterfly.

The Blowsand Mountains dune system is under the jurisdiction of the Department of Defense and is within a practice bombing range used by the Fallon NAS. The petition provides no information on the management of the Blowsand Mountains. As previously noted under Factor A, information in our files states that because of its use for military bombing training operations, much of the area is not open to public access and therefore is not used for ORV recreation (TNC 2004, p. 12). An interagency assessment team concluded that while direct mortality to dune biota from bomb drops can be severe, it was of small geographic scope within the Blowsand Mountains and, therefore, its overall stress ranking was considered low (TNC 2004, p. 48).

Therefore, based on the information provided in the petition and available in our files, we have determined that the petition does not present substantial information to indicate that listing the Hardy's aegialian scarab or the Sand Mountain serican scarab may be warranted due to the inadequacies of existing regulatory mechanisms.

The Crescent Dunes aegialian scarab and Crescent Dunes serican scarab are known only from the Crescent Dunes, where a total of 3,000 ac (1,214 ha) has been designated as the Crescent Sand Dunes SRMA in the Tonopah Resource Management Plan (TRMP) (BLM 1997, p. 21). The petition provides no information, nor do we have any information in our files, regarding whether either of these species occurs outside of the designated SRMA boundary. The Record of Decision (ROD) for the TRMP states that vehicle use within the SRMA will be limited to existing roads and trails, although ORV use on unvegetated areas may be allowed provided that such vehicle use is compatible with the area's values (BLM 1997, p. 21). The Crescent Dunes SRMA is closed to competitive recreational events to protect sensitive resource values (BLM 1997, p. 20). Fluid mineral leasing is allowed, subject to a no-surface-occupancy stipulation (BLM 1997, p. 21). The TRMP does not specifically address management of renewable resources such as solar energy (BLM 1997). No specific mention is made of either beetle species in the TRMP, although it states that Nevada BLM Sensitive Species will be managed to maintain or increase current population levels (BLM 1997, p. 9). We are not aware of any specific conservation actions or plans for either the Crescent Dunes aegialian scarab or the Crescent Dunes serican scarab.

The petition noted that during the public participation process for the proposed TRMP, the BLM received a letter from the Nevada Outdoor Recreation Association, Inc. urging them to designate the Crescent Dunes as an ACEC to protect endemic species, including the Crescent Dunes aegialian scarab (BLM 1994, pp. 5-12). The BLM responded that a 14,000-ac (5,666 ha) area at Crescent Dunes was examined for ACEC potential and determined not to meet the importance criterion as defined in BLM policy (BLM 1994, pp. 5-125); no further explanation was provided. In the ROD for the TRMP, the BLM stated that as a result of several points of protest concerning ACECs that were found to be valid, decisions to designate ACECs were withheld and that an ACEC Plan Amendment would be prepared over the next 2 years to address these points of protest (BLM 1997, p. 3); we have no information in our files regarding whether this plan amendment was ever prepared. Another commenter, The Nature Conservancy, expressed the opinion that recreation appeared to be high priority at Crescent Dunes with no regard given to protection of the unique animals of the dune system and no analysis of the impacts of ORVs to these species or their habitat (BLM 1994, pp. 5-116). The BLM responded that impacts to sensitive species would be addressed in the SRMA plan (BLM 1994, pp. 5-159). According to the petition, no management plan has been prepared for the SRMA (WildEarth Guardians 2010, p. 11). We are unaware of any other restrictions being placed on motorized use at Crescent Dunes to protect the Crescent Dunes aegialian scarab and the Crescent Dunes serican scarab or their habitat as was done at Sand Mountain to protect the Sand Mountain blue butterfly and its habitat.

Therefore, based on the information provided in the petition and available in our files, we have determined that the petition does present substantial information to indicate that listing the Crescent Dunes aegialian scarab and the Crescent Dunes serican scarab may be warranted due to the inadequacies of existing regulatory mechanisms.

The large aegialian scarab and Giuliani's dune scarab are known only from Big Dune and Lava Dune. According to the petition, in the Las Vegas Resource Management Plan (LVRMP), the BLM designated an 11,600-ac (4,694-ha) SRMA, which includes a 1,920-ac (777-ha) ACEC at Big Dune (BLM 1998b, pp. 7, 23). The objective of the SRMA is to provide for moderate, casual ORV use; camping; and other casual recreation opportunities. The ACEC was established to protect beetle habitat. The management direction is to prohibit ORV use within 200 ac (81 ha) of dune beetle habitat within the ACEC, except on the designated route through it, to ensure continued survival of the native beetle population. Speed-based competitive ORV events within the ACEC are also prohibited (BLM 1998b, p. 23). Other commercial activities and permitted events are allowed on a case-by-case basis. The management direction stipulates that long-term recreation management within the dunes be based on the minimum habitat requirements of the beetles (BLM 1998b, p. 23). Lands within the ACEC are designated as a rights-of-way exclusion area and are closed to locatable mineral, salable mineral, and solid leasable mineral entry; fluid mineral leasing is allowed, subject to a no-surface-occupancy stipulation (BLM 1998b, p. 7). The LVRMP does not specifically address management of renewable resources such as solar energy (BLM 1998b). There is no livestock grazing within the ACEC. A BLM brochure states that a 5-ac (2-ha) area within the ACEC on the east side of the dunes has been set aside specifically for the protection of beetle habitat (BLM 2010c, p. 1). We have no information in our files that explains the discrepancy between the 200 ac (81 ha) protected area identified in the LVRMP and the 5 ac (2 ha) area described in the brochure.

In our files, we have correspondence that indicates that a study of the distribution of the beetles and their ecological requirements was initiated at Big Dune in 2007 (Murphy 2007, p. 1). This correspondence includes a statement that the researchers were successful in locating both endemic scarab beetles in “huge” numbers although ORV activities were having impacts (Murphy 2007, p. 1). This survey information, however, is anecdotal, and we lack sufficient details or a written report to evaluate this claim. We have no information on the status of the beetles at the nearby Lava Dune, which has no special management designations.

Therefore, based on the information provided in the petition and available in our files, we have determined that the petition does present substantial information to indicate that listing the large aegialian scarab and Giuliani's dune scarab may be warranted due to the inadequacies of existing regulatory mechanisms.

We find that the petition provides substantial information that there may be inadequate existing regulatory mechanisms related to ORV use and solar facility siting and, therefore, a potential threat to the Crescent Dunes aegialian scarab and the Crescent Dunes serican scarab that occur at Crescent Dunes, and to the large aegialian scarab and Giuliani's dune scarab that occur at Big Dune and Lava Dune.

While ORV use also occurs at Sand Mountain (see also Factor A discussion), we believe that the mandatory route restrictions in place since 2006 protect the shrub habitat on which the two dune beetles that occur there depend. We do not have information indicating that violations of the 2006 restrictions occur, or occur frequently enough to impact the dune beetles' shrub habitat. Off Road Vehicle recreation does not occur throughout much of the Blowsand Mountains' dune system because much of it is not open to public access. The bombing operations at the Blowsand Mountains are of limited geographic scope and, therefore, direct mortality to dune biota was given a low stress ranking by an interagency assessment team. Solar facilities are not being proposed at or near Sand Mountain or Blowsand Mountains. For these reasons, we do not consider the petition to provide substantial information that listing Hardy's aegialian scarab or the Sand Mountain serican scarab, endemic to Sand Mountain and the Blowsand Mountains, may be warranted due to the inadequacies of existing regulatory mechanisms.

Therefore, based on our evaluation of the information available in the petition and our files, we have determined that the petition does not present substantial information to indicate that listing Hardy's aegialian scarab and the Sand Mountain serican scarab may be warranted, but the information available in the petition and our files does present substantial information to indicate that listing may be warranted for the Crescent Dunes aegialian scarab, Crescent Dunes serican scarab, large aegialian scarab, and Giuliani's dune scarab, due to the inadequacies of existing regulatory mechanisms.

The petition states that the six petitioned sand dune beetles have limited distribution and apparently small populations, increasing the likelihood of extinction (WildEarth Guadians 2010, p. 8). In support of this claim, the petition cites Service status assessments for a ground-dwelling snail [Sisi ( Ostodes strigatus )], and for Langford's tree snail ( Partula langfordii ), in which the Service found that the small number of individuals or the small number of extant populations made these species more vulnerable to extinction (Service 2009a, pp. 4-5; 2009b, pp. 5-6). These assessments differ substantially, however, from our current considerations for the six petitioned sand dune beetles . The total population of Sisi was estimated at fewer than 50 individuals in the early 1990s (Service 2009a, p. 3). In the case of Langford's tree snail, there is a record of historical declines in population estimates from hundreds of individuals documented in 1970 to only a few individuals by the early 1990s; no live snails have been located in recent surveys (Service 2009a, p. 4). The petition notes that, in the case of Langford's tree snail, the Service relied on citations not specific to this species that state that small populations are particularly vulnerable to reduced reproductive vigor caused by inbreeding depression, and may suffer a loss of genetic variability over time due to random genetic drift (WildEarth Guardians 2010, p. 8). The petition also states that many species in the Great Basin and Mojave Deserts, especially species adapted to specialized habitats such as sand dunes, have evolved and continue to persist in isolation with limited distribution (Brussard et al. 1998, pp. 514-520).

The petition provided no population estimates or trends for any of the six petitioned species, nor do we have definitive population estimates or trends for any of these beetles in our files. We do have anecdotal information in our files that indicates that “huge” populations of two scarab beetles (large aegialian scarab and Giuliani's dune scarab) were present as recently as 2007 at Big Dune (Murphy 2007, p. 1).

In a genetics study of five species of Aegialia, researchers found that three flightless species, which included Hardy's aegialian scarab and the large aegialian scarab, had low genetic distance measures but relatively high estimates of gene flow (Porter and Rust 1996, p. 719). They suggested that flightless Aegialia populations within Great Basin dune systems may be extremely large and have levels of gene flow high enough to maintain high genetic similarity, and therefore low genetic distances (Porter and Rust 1996, p. 719).

Neither the petition, nor the information in our files, provides information that directly indicates that limited distribution, in and of itself, is a substantial threat to the petitioned dune beetle species. The petition does not provide information on chance events or other threats to the six species and connect such threats to small population numbers or restricted range or the potential for such threats to occur in occupied habitats in the future.

Limited distribution and small population numbers or sizes are considered in determining whether the petition provides substantial information regarding natural or anthropogenic threat, or a combination of threats, that may be affecting a particular species. However, in the absence of information identifying chance events or other threats and the potential for such chance events to occur in occupied habitats, and connecting them to a restricted geographic range of a species, we do not consider chance events, restricted geographic range, or rarity by themselves to be threats to a species.

Therefore, based on our evaluation of the information provided in the petition and our files, we have determined that the petition does not present substantial information to indicate that listing any of the six sand dune beetle species may be warranted due to other natural or manmade factors affecting these species' continued existence.

On the basis of our determination under section 4(b)(3)(A) of the Act, we find that the petition does not present substantial scientific or commercial information indicating that listing Hardy's aegialian scarab and the Sand Mountain serican scarab throughout their entire range may be warranted. On the basis of our determination under section 4(b)(3)(A) of the Act, we have determined that the petition presents substantial scientific or commercial information that listing the Crescent Dunes aegialian scarab, Crescent Dunes serican scarab, large aegialian scarab, and Giuliani's dune scarab throughout their entire range may be warranted.

The petition presents substantial information indicating that listing the Crescent Dunes aegialian scarab may be warranted due to Factors A and D. The petition does not present substantial information indicating that listing the Crescent Dunes aegialian scarab may be warranted due to Factors B, C, or E.

The petition presents substantial information indicating that listing the Crescent Dunes serican scarab may be warranted due to Factors A and D. The petition does not present substantial information indicating that listing the Crescent Dunes serican scarab may be warranted due to Factors B, C, or E.

The petition presents substantial information indicating that listing the large aegialian scarab may be warranted due to Factors A and D. The petition does not present substantial information indicating that listing the large aegialian scarab may be warranted due to Factors B, C, or E.

The petition presents substantial information indicating that listing Giuliani's dune scarab may be warranted due to Factors A and D. The petition does not present substantial information indicating that listing Giuliani's dune scarab may be warranted due to Factors B, C, or E.

Because we have found that the petition presents substantial information that listing four of the six species may be warranted, we are initiating status reviews (12-month findings) to determine whether listing these four 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 12-month findings, we determine whether a petitioned action is warranted after we have completed thorough status reviews of the species, which are conducted following substantial 90-day findings. 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 a 12-month finding will result in a warranted finding.

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

The primary authors of this document are the staff members of the Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

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

Section 4(b)(3)(D) of the Act of 1973, as amended (16 U.S.C. 1531 et seq. ) requires that we make a finding on whether a petition to revise critical habitat for a species presents substantial scientific information indicating that the revision may be warranted. In determining whether substantial information exists, we take into account several factors, including information submitted with, and referenced in, the petition and all other information readily available in our files. Our listing regulations at 50 CFR 424.14(c)(2) further require that, in making a finding on a petition to revise critical habitat, we consider whether the petition contains information indicating that areas petitioned to be added to critical habitat contain the physical and biological features essential to, and that may require special management to provide for, the conservation of the species; or information indicating that areas currently designated as critical habitat do not contain resources essential to, or do not require special management to provide for, the conservation of the species involved.

To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register . 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. If we find that a petition presents substantial information indicating that the revision may be warranted, we are required to determine how we intend to proceed with the requested revision within 12 months after receiving the petition and promptly publish notice of such intention in the Federal Register .

Critical habitat is defined under section 3(5)(A) of the Act as:

(i) 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

(I) Essential to the conservation of the species and

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

(ii) 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.

Our implementing regulations at 50 CFR 424.12 describe our criteria for designating critical habitat. We are to consider physical and biological features essential to the conservation of the species. Those features include, but are not limited to: (1) Space for individual and population growth, and 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 of offspring; and (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distribution of a species. Essential physical and biological features may include, but are not limited to, nesting grounds, feeding sites, water quality, geological formations, tides, and specific soil types. Our implementing regulations at 50 CFR 424.02 define “special management considerations or protection” as any methods or procedures useful in protecting physical and biological features of the environment for the conservation of the species.

Section 4(b)(2) of the Act requires us to designate and make revisions to critical habitat for listed species 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 Secretary may exclude any particular 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 that the failure to designate such area as critical habitat, will result in the extinction of the species concerned.

In 1970, the leatherback sea turtle was listed as endangered (35 FR 8491; June 2, 1970) in accordance with the Endangered Species Conservation Act of 1969 (Pub. L. 91-135; 83 Stat. 275), a precursor to the Act. The Service designated critical habitat for the leatherback sea turtle on March 23, 1978 (43 FR 12050), in the U.S. Virgin Islands to include: “A strip of land 0.2 miles wide (from mean high tide inland) at Sandy Point Beach on the western end of the island of St. Croix beginning at the southwest cape to the south and running 1.2 miles northwest and then northeast along the western and northern shoreline, and from the southwest cape 0.7 miles east along the southern shoreline.” This critical habitat designation appears in our regulations at 50 CFR 17.95(c). NMFS designated critical habitat for the leatherback sea turtle on March 23, 1979 (44 FR 17710), in the U.S. Virgin Islands to include: “The waters adjacent to Sandy Point, St. Croix, U.S. Virgin Islands, up to and inclusive of the waters from the hundred fathom curve shoreward to the level of mean high tide with boundaries at 17°42′12″ North and 64°50′00″ West.” This critical habitat designation appears in the NMFS regulations at 50 CFR 226.207. In 1984, the Sandy Point National Wildlife Refuge was established; the refuge completely encompasses the stretch of beach that was designated as critical habitat in 1978.

On October 2, 2007, NMFS received a petition from the Center for Biological Diversity, Oceana, and Turtle Island Restoration Network to revise the leatherback sea turtle critical habitat designation. The petitioners sought to revise the critical habitat designation to include the area NMFS was already managing under the authority of the Magnuson-Stevens Fishery Conservation and Management Act to reduce leatherback sea turtle interactions in the California-Oregon drift gillnet fishery targeting swordfish and thresher shark. This area encompasses roughly 200,000 square miles (321,870 square kilometers (km)) of the Exclusive Economic Zone from 45 degrees North latitude about 100 miles (160 km) south of the Washington-Oregon border southward to Point Sur and along a diagonal line due west of Point Conception, CA, and west to 129 degrees West longitude.

On December 28, 2007, NMFS published a 90-day finding that the petition presented substantial scientific information indicating that the petitioned action may be warranted and initiated a review of the critical habitat of the species to determine whether the petitioned action was warranted (72 FR 73745). On January 5, 2010, NMFS proposed regulations to designate specific areas within the Pacific Ocean as critical habitat (75 FR 319). The areas proposed for designation encompass approximately 70,600 square miles (182,854 square km) of marine habitat. Specific areas proposed for designation include two adjacent areas covering 46,100 square miles (119,400 square km) stretching along the California coast from Point Arena to Point Vincente and an area covering 24,500 square miles (63,455 square km) stretching from Cape Flattery, WA, to the Umpqua River (Winchester Bay), OR, east of a line approximating the 6,562-ft (2,000-meter) depth contour. A final determination has not yet been published by NMFS.

On February 22, 2010, the Service and NMFS received a petition dated February 22, 2010, from Craig Segall of the Sierra Club, requesting that we revise critical habitat for the leatherback sea turtle ( Dermochelys coriacea ) to include nesting beaches and offshore marine habitats in Puerto Rico pursuant to the Act and the Administrative Procedure Act (APA). Section 553 of the APA states that, “Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule” (5 U.S.C. 553(e)).

The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required by 50 CFR 424.14(a). The petition asserted that the beaches of the Northeast Ecological Corridor (NEC) of Puerto Rico (which would fall under the jurisdiction of the Service) are “centrally important to the U.S. Caribbean leatherback population, and should be designated as critical habitat.” The petition also maintained that the near-shore coastal waters off those beaches (which would fall under the jurisdiction of NMFS) “provide room for turtles to mate and to access the beaches, and for hatchlings and adults to leave the beaches.” It likewise asserted that the coastal zone within the NEC is particularly vulnerable to developmental pressure and to the growing impacts of climate change, and so warrants protection as critical habitat.

The petition also requested that the agencies revise the recovery plan for the leatherback sea turtle at the earliest possible time, and that the agencies issue no Atlantic leatherback-related incidental take permits (save for permits supporting pure conservation research), issue no Atlantic leatherback-related habitat conservation plan, issue no Atlantic leatherback-related biological opinion, and take no other final agency action that could affect the Atlantic population of the leatherback sea turtle or its habitat, until the petition to revise critical habitat was ruled on and without taking climate change fully into account. However, none of these additional requests are petitionable under the Act and, therefore, they are not addressed in this 90-day finding and 12-month determination.

Under the Act, the Service and NMFS each have respective areas of jurisdiction over sea turtles, as clarified by the 1977 Memorandum of Understanding Defining the Roles of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service in Joint Administration of the Endangered Species Act of 1973 as to Marine Turtles. The Service has jurisdiction over sea turtles and their associated habitats when they are on land, while NMFS has jurisdiction over sea turtles and their associated habitats in the marine environment. Thus, if Federal agencies are involved in activities that may affect sea turtles involved in nesting behavior, or may affect their nests or their nesting habitats, those Federal agencies are required to consult with the Service under section 7 of the Act to ensure that their activities are not likely to jeopardize the continued existence of the sea turtles. If a Federal action may affect sea turtles while they are in the marine environment, the Federal agency involved must engage in a section 7 consultation with NMFS, to ensure that the action is not likely to jeopardize the continued existence of the sea turtles. Similarly, if critical habitat has been designated, and Federal actions may affect such habitat, a section 7 consultation under the Act would be required to ensure that the Federal action is not likely to destroy or adversely modify the critical habitat. If the critical habitat has been designated on land, the consultation would be with the Service; if the critical habitat has been designated in the marine environment, the consultation would be with NMFS.

On April 1, 2010, the Service sent a letter to the petitioner acknowledging receipt of the petition. On April 28, 2010, the Service received an e-mail from the Sierra Club transmitting a letter from 36 nonprofit organizations and conservation interests outlining the importance of the NEC of Puerto Rico and recommending that it be designated as critical habitat for the endangered leatherback sea turtle. On June 2, 2010, the Sierra Club sent a Notice of Intent To Sue over the alleged failure of the Service and NMFS to make a 90-day finding.

On July 16, 2010, NMFS published in the Federal Register its 90-day finding on the portion of the petition that falls under its jurisdiction and determined that the petition did not present substantial scientific information indicating that the petitioned action may be warranted (75 FR 41436). On November 2, 2010, the Sierra Club submitted to NMFS a second petition that included additional data supporting the requested action. In response to the second petition, NMFS made a 90-day finding that the petition presented substantial information indicating that the petitioned revision of designated critical habitat for leatherback sea turtles may be warranted (May 5, 2011; 76 FR 25660).

On February 23, 2011, the Sierra Club sent a Notice of Intent To Sue over the alleged failure of the Service and NMFS to make both the 90-day and 12-month findings. On March 18, 2011, we sent a letter to the Sierra Club acknowledging receipt of the February 23, 2011, Notice of Intent To Sue. On May 27, 2011, the Sierra Club filed a complaint over the alleged failure of the Service to respond to the petition dated February 22, 2010, to revise critical habitat. This finding addresses the portion of the petition under the Service's jurisdiction.

This 90-day finding and 12-month determination is responsive only to aspects of the petition that fall under the Service's jurisdiction, the terrestrial portion of the area as identified in the petition as “The coastline of the Northeast Ecological Corridor of Puerto Rico, running from Luquillo, Puerto Rico, to Fajardo, Puerto Rico, including the beaches known as San Miguel, Paulinas, and Convento, and extending at least .025 mile (132 feet) inland from the mean high tide line.”

Leatherback sea turtles have the widest distribution of sea turtles, nesting on beaches in the tropics and subtropics and foraging into higher-latitude subpolar waters. In the Pacific, they extend from the waters of British Columbia (McAlpine et al. 2004, entire) and the Gulf of Alaska (Hodge and Wing 2000, entire) to the waters of Chile and South Island (New Zealand), and nesting occurs in both the eastern and western Pacific (Márquez M. 1990, pp. 54-55; Gill 1997, entire; Brito M. 1998, entire). They also occur throughout the Indian Ocean (Hamann et al. 2006, entire). In the Atlantic, they are found as far north as the waters of the North Sea, Barents Sea, Newfoundland, and Labrador (Threlfall 1978, p. 287; Goff and Lien 1988, entire; Márquez M. 1990, pp. 54-55; James et al. 2005, entire) and as far south as Argentina and the Cape of Good Hope, South Africa (Márquez M. 1990, pp. 54-55; Hughes et al. 1998, entire; Luschi et al. 2003, entire; Luschi et al. 2006, pp. 53-54), and nesting occurs in both the eastern and western Atlantic. Although leatherback sea turtles occur in Mediterranean waters, no nesting is known to take place in this region (Casale et al. 2003, pp. 136-138).

Historical descriptions of leatherback sea turtles are rarely found in the accounts of early sailors, and the size of their population before the mid-20th century is speculative (NMFS and Service 2007, p. 26). Even for large nesting assemblages like French Guiana and Suriname, nesting records prior to the 1950s are lacking (Rivalan et al. 2006, p. 2). By the 1960s, several nesting sites were being discovered in the western Atlantic, in Pacific Mexico, and in Malaysia. Soon after, other populations in Pacific Costa Rica and Mexico were identified. Today, nesting beaches are known in all major ocean basins with catastrophic declines observed in the eastern Pacific (Spotila et al. 2000, entire) and Malaysia (Chan and Liew 1996, pp. 196-197).

In the eastern Pacific, important nesting beaches occur in Mexico and Costa Rica, with scattered nesting along the Central American coast (Márquez M. 1990, pp. 54-55). Nesting is very rare in the Gulf of California, Mexico (Seminoff and Dutton 2007, p. 139). In the western Pacific, the main nesting beaches occur in the Solomon Islands, Papua, Indonesia, and Papua New Guinea (Limpus 2002, p. 44; Dutton et al. 2007, pp. 49-50). Minor nesting occurs in Vanuatu (Petro et al. 2007, entire), Fiji (Rupeni et al. 2002, p. 122), and southeastern Australia (Dobbs 2002, p. 81; Hamann et al. 2006, p. 20); and it is very rare in the North Pacific (Eckert 1993, p. 73). In the Indian Ocean, major nesting beaches occur in South Africa, Sri Lanka, and Andaman and Nicobar islands, with smaller populations in Mozambique, Java, and Malaysia (Hamann et al. 2006, p. 8).

In the eastern Atlantic, a globally significant nesting population is concentrated in Gabon, Africa, with widely dispersed but fairly regular nesting between Mauritania in the north and Angola in the south (Fretey et al. 2007, entire). Important nesting areas in the western Atlantic Ocean occur in Florida (USA); St. Croix, VI; Puerto Rico; Costa Rica; Panamá; Colombia; Trinidad and Tobago; Guyana; Suriname; French Guiana; and southern Brazil (Márquez M. 1990, pp. 54-55; Spotila et al. 1996, pp. 212-213; Bräutigam and Eckert 2006, p. 8). Other minor nesting beaches are scattered throughout the Caribbean, Brazil, and Venezuela (Mast 2005-2006, pp. 18-19; Hernández et al. 2007, p. 81).

For additional information on the biology, status, and habitat needs of the leatherback sea turtle, refer to the Leatherback Sea Turtle ( Dermochelys coriacea ) 5-Year Review (NMFS and Service 2007, entire); the Recovery Plan for Leatherback Turtles ( Dermochelys coriacea ) in the U.S. Caribbean, Atlantic, and Gulf of Mexico (NMFS and Service 1992, entire); and the Recovery Plan for U.S. Pacific Populations of the Leatherback Turtle ( Dermochelys coriacea ) (NMFS and Service 1998, entire), available on the Internet at http://www.regulations.gov .

In making this finding, we relied on information provided by the petitioners, sources cited by the petitioners, and information readily available in the Service's files. We evaluated the information in accordance with 50 CFR 24.14(c). Our process for making this 90-day finding under section 4(b)(3)(D) of the Act and 50 CFR 424.14(c) of our regulations is limited to a determination of whether the information in the petition meets the “substantial scientific information” threshold. In making a finding, we consider whether the petition provides the following in accordance with 50 CFR 424.14(c)(2):

(i) Information indicating that areas petitioned to be added to critical habitat contain physical or biological features essential to, and that may require special management to provide for, the conservation of the species involved; or

(ii) Information indicating that areas currently designated as critical habitat do not contain resources essential to, or do not require special management to provide for, the conservation of the species involved.

The Service's evaluation of this information is presented below. We have organized the petition's claims into four categories relative to 50 CFR 424.14(c)(2)(i) as described above:.

(1) Petition claims the leatherback sea turtle nesting sites in Puerto Rico represent the second most significant nesting activity in the United States, and that the beaches of the Northeast Ecological Corridor are the most important leatherback sea turtle nesting sites on the main island of Puerto Rico.

The petition claims “[t]he United States contains at least three significant leatherback nesting areas: Sandy Point on St. Croix in the U.S. Virgin Islands, which hosted 1,008 nests in 2001, Brava and Resaca Beaches on Puerto Rico's island of Culebra, and the beaches around Fajardo and Luquillo in the Northeast Ecological Corridor of Puerto Rico. The Puerto Rican beaches cumulatively hosted a minimum of 469-882 nests each year between 2000 and 2005.” The petition cites a Puerto Rico Department of Natural and Environmental Resources (PRDNER) management plan that describes the Corridor's beaches as ” `one of the most important leatherback nesting areas in Puerto Rico and in the jurisdiction of the United States,' noting that from 1993 to 2007, 3,188 nests have been recorded, for an average of 213 nests annually.” The petition asserts that revision of leatherback sea turtle critical habitat to include the beaches of the NEC of Puerto Rico is necessary to protect leatherback sea turtles. The petition states that the NEC, including its coastal waters, is “a centrally important space for `individual and population growth,' because it is also a site for `breeding, reproduction, [and] rearing of offspring.' ” It asserts that “[a]s two decades of data demonstrate, it is a `nesting ground' or `reproduction [site]' which includes the sandy beaches and open access to the ocean that constitute the `soil type' and `physical constituent elements' that leatherbacks need to survive.”

The Service assessed information provided by the petitioner and available in our files. The Service agrees with the petitioner that Sandy Point in the U.S. Virgin Islands, Brava and Resaca Beaches on Puerto Rico's Island of Culebra and the Northeast Ecological Corridor on the main island of Puerto Rico are important nesting areas for leatherback sea turtles in the United States. However, important leatherback sea turtle nesting habitat also occurs in Florida, as well as elsewhere in Puerto Rico on the Island of Vieques and in the Maunabo area on the main island. A summary of key leatherback nesting beaches in the United States is provided below.

In Florida, the majority of leatherback sea turtle nesting occurs along the Southeast Atlantic coastline in Brevard through Broward Counties. These counties encompass approximately 206 miles (332 km) of sandy coastline fronting the Atlantic Ocean (Clark 1993, p. 17). Within these counties, approximately 89 miles (143 km) have been identified as conservation lands (NMFS and Service 2008, pp. V-36-V-39). Conservation lands are defined as public ownership (Federal, State, or local government) and privately owned lands ( e.g., nonprofit conservation foundations) that are generally managed in a way to benefit sea turtle conservation (NMFS and Service 2008, p. V-33). Therefore, beaches identified as conservation lands in Brevard through Broward Counties represent approximately 43 percent of all oceanfront beaches in these counties.

The Florida Statewide Nesting Beach Survey (SNBS) program documented an increase in leatherback sea turtle nesting numbers from 98 nests in 1989 to between 453 and 1,747 nests per season in the 2000s, with the highest number of nests recorded in 2009 (Florida Fish and Wildlife Conservation Commission SNBS data). Although the SNBS program provides information on distribution and total abundance of sea turtle nesting statewide, it cannot be used to assess trends because of variable survey effort. Therefore, leatherback nesting trends are best assessed using standardized nest counts made at Index Nesting Beach Survey (INBS) sites surveyed with constant effort over time (1989-2010). Under the INBS program, approximately 30 percent of Florida's SNBS beach length is surveyed. The INBS nest counts represent approximately 34 percent of known leatherback nesting in Florida. An analysis of the INBS data has shown an exponential increase in leatherback sea turtle nesting in Florida since 1989. From 1989 through 2010, the annual number of leatherback sea turtle nests at the core set of index beaches ranged from 27 to 615 (Florida Fish and Wildlife Conservation Commission INBS data). Using the numbers of nests recorded from 1979 through 2009, Stewart et al. (in press) estimated a population growth of approximately 10.2 percent per year.

In the U.S. Virgin Islands, leatherback sea turtle nesting has been reported on the islands of St. Croix, St. Thomas, and St. John. However, the most significant leatherback sea turtle nesting activity occurs on Sandy Point, St. Croix (NMFS and Service 1992, p. 2). Leatherback sea turtle nesting on Sandy Point was first brought to the attention of biologists in the mid-1970s (Boulon et al. 1996, p. 141), and flipper tagging of nesting turtles began in 1977 (Dutton et al. 2005, p. 186). Since 1982, the Sandy Point beach has been consistently monitored each nesting season. In 1984, the Sandy Point National Wildlife Refuge was established and encompassed the Sandy Point beach. Between 1982 and 2010, the number of nests recorded on Sandy Point ranged from a low of 82 in 1986 to a high of 1,008 in 2001 (Garner and Garner 2010, pp. 18-20). Dutton et al. (2005, p. 189) estimated a population growth of approximately 13 percent per year from 1994 through 2001 for this nesting population. Using the number of observed females at Sandy Point from 1986 to 2004, the Turtle Expert Working Group (2007, pp. 48-49) estimated a population growth of approximately 10 percent per year.

In Puerto Rico, the main nesting areas are at Fajardo (NEC) and Maunabo on the main island, and on the islands of Culebra and Vieques. Between 1993 and 2010, the number of nests recorded in the NEC in the Fajardo area ranged from a low of 51 in 1995 to a high of 456 in 2009 (C. Diez, PRDNER, unpublished data). In the Maunabo area, the number of nests recorded between 2001 and 2010 ranged from a low of 53 in 2002 to a high of 260 in 2009 (C. Diez, PRDNER, unpublished data). On the island of Culebra, the number of nests recorded between 1993 and 2010 ranged from a low of 41 in 1996 to a high of 395 in 1997 (C. Diez, PRDNER, unpublished data). Approximately two-thirds of Vieques Island was occupied by the U.S. Navy beginning in the early 1940s and was used by the U.S. Department of Defense for military practices until 2002, when most of the U.S. Navy lands on Vieques Island were transferred to the Department of the Interior to form part of the Service's National Wildlife Refuge System.

Monitoring of sea turtle nesting beaches on Vieques Island has been challenging due to access restrictions imposed during military operations and the presence of unexploded ordnance throughout most of the areas formerly used for military training by the U.S. Navy. On beaches managed by the Commonwealth of Puerto Rico on the island of Vieques, PRDNER recorded annually 14-61 leatherback nests between 1991 and 2000; 145 nests in 2002; 24 in 2003; and 37 in 2005 (C. Diez, PRDNER, unpublished data). The number of leatherback sea turtle nests recorded on Vieques Island beaches managed by the Service were as follows:

• 32 in 2001;

• 163 in 2002;

• 13 in 2003;

• 28 in 2004;

• 88 in 2005;

• 92 in 2006;

• 93 in 2007;

• 52 in 2008;

• 155 in 2009; and

• 132 in 2010.

Fajardo (NEC) and Maunabo are the primary leatherback sea turtle nesting areas on the main island of Puerto Rico. The NEC of Puerto Rico, running from Luquillo to Fajardo, PR, includes approximately 3,200 “cuerdas” (3,108 acres or 1,259 hectares) within the properties referred to as San Miguel I and II, Las Paulinas, El Convento Norte, and Seven Seas. Three of these properties (Las Paulinas, El Convento Norte, and Seven Seas) are owned by the Puerto Rico Industrial Development Company (PRIDCO) and the National Parks Company (NPC), while the remaining properties are privately owned.

Beaches within the NEC comprise approximately 5.43 miles (8.74 km) of sandy beaches that support leatherback nesting. Maunabo is located on the southeastern coast and has approximately 3.93 miles (6.32 km) of sandy beaches suitable for leatherback sea turtle nesting. Although beaches in Maunabo are public domain, uplands adjacent to these beaches are privately owned with the potential for future development. On the island of Culebra, the majority of leatherback sea turtle nesting occurs on Brava and Resaca beaches. Brava Beach is approximately 0.78 mile (1.25 km) in length, while Resaca Beach is 0.62 mile (1.00 km) in length. All of the land surrounding Resaca Beach and part of the land surrounding Brava Beach is owned by the Service as part of the Culebra National Wildlife Refuge. Therefore, Resaca Beach is relatively protected from development.

Although at present there is no development on the private land near Brava Beach, there is the potential for future development. On the island of Vieques, leatherback sea turtles nest on both the southern and northern beaches on the eastern portion of the island within the Vieques National Wildlife Refuge. The refuge encompasses approximately 18.09 miles (29.11 km) of sandy beaches that may support leatherback sea turtle nesting. These beaches are protected from development.

Although other important leatherback sea turtle nesting beaches occur in the United States besides those identified in the petition, the Service believes the information submitted by the petitioner about the importance of the NEC to leatherback sea turtle nesting in the United States is substantial for this claim.

(2) Petition claims that leatherback sea turtles in the Atlantic Ocean have declined and could experience a similar decline as those in the Pacific Ocean if their habitat is not protected.

The petition cites a number of studies about the population decline of leatherback sea turtles in the Pacific Ocean, and concludes that leatherback sea turtles in the Atlantic Ocean could experience a similar decline if their habitat is not protected. The petition also states that conditions in the Atlantic and Caribbean are relatively more stable than those in the Pacific, but that some declines in nesting have been documented or are believed likely to have occurred based on estimates on nesting declines for other sea turtle species. However, the petition did not cite or provide information about the status of leatherback sea turtle populations in the Atlantic Ocean.

In 2007, the Turtle Expert Working Group published An Assessment of the Leatherback Turtle Population in the Atlantic Ocean and estimated a population size of 34,000-94,000 adult leatherback sea turtles in the North Atlantic (Turtle Expert Working Group 2007, p. 59). An increasing or stable population trend was seen in all regions of the Atlantic except West Africa for which no long-term data were available (Turtle Expert Working Group 2007, pp. 48-51). The nesting trend for the North Caribbean population, which includes Puerto Rico, was characterized as increasing. Furthermore, a near record number of leatherback nests (1,330 nests) was laid on Florida index beaches in 2010. Leatherback nest counts have been increasing exponentially in Florida ( http://myfwc.com/research/wildlife/sea-turtles/nesting/beach-survey-totals-1989-2010/ ).

The petition does not provide information to support the claim that leatherback sea turtle populations have substantially declined in the Atlantic since the 1978 critical habitat designation in St. Croix, VI. Thus, the Service does not believe the petition or information in our files presents substantial information to support this claim. The Service also does not believe the petition or information available in our files presents substantial information to support the claim that the leatherback sea turtles in the Atlantic Ocean are likely to experience declines similar to those in the Pacific if critical habitat is not revised to include the beaches of the NEC. Therefore, the Service finds that the petition does not present substantial information for this claim.

(3) Petition claims that the evidence supporting designation of the Northeast Ecological Corridor as critical habitat is stronger than the evidence used by the Service to designate critical habitat for Sandy Point, St. Croix, VI.

The petition cites the 1978 critical habitat designation of the nesting beaches of Sandy Point, St. Croix, as a rationale for likewise designating the beaches of the NEC of Puerto Rico as critical habitat. The petition indicates that the current level of leatherback sea turtle nesting within the NEC is greater than the level of nesting that was observed at Sandy Point in 1977, which was used as justification for its designation as critical habitat.

At the time of the 1978 critical habitat designation, Sandy Point in the U.S. Virgin Islands was the only known beach under U.S. jurisdiction used extensively for nesting by leatherback sea turtles. Its designation as critical habitat was “taken to insure the integrity of the only major nesting beach used by leatherbacks in the United States or its territories” (43 FR 43688; September 26, 1978). Since that time, as described in the Species Information section above, additional beaches have been identified in the United States as important for leatherback sea turtle nesting, including beaches in Puerto Rico and Florida. Therefore, the rationale used for the Sandy Point critical habitat designation is not applicable for the NEC. Therefore, the Service finds that the petition does not present substantial information for this claim.

(4) Petition claims that threats on the nesting beach are substantial and that global climate change is exacerbating the situation.

The petition claims threats to leatherback sea turtle nesting beaches, exacerbated by global climate change, further justify the need for designation of the NEC as critical habitat. The Service agrees there are substantial threats affecting leatherback sea turtle nesting habitat in the U.S. Atlantic. Leatherback nesting habitat is affected by development, including the construction of buildings, beach armoring, renourishment, and sand mining (Crain et al. 1995, entire; Lutcavage et al. 1997, pp. 388-391; Witherington 1999, pp. 180-181). These factors may directly, through loss of beach habitat, or indirectly, through changing thermal profiles and increasing erosion, serve to decrease the amount of nesting area available to nesting females, and may evoke a change in the natural behaviors of adults and hatchlings (Ackerman 1997, pp. 102-103; Mosier 1998, pp. 42-47; Witherington et al. 2003, pp. 7-10). In addition, coastal development is usually accompanied by artificial lighting. The presence of lights on or adjacent to nesting beaches alters the behavior of nesting adults and is often fatal to emerging hatchlings as they are attracted to light sources and drawn away from the water (McFarlane 1963, p. 153; Philibosian 1976, p. 824; Ehrhart and Witherington 1987, pp. 66-67; Witherington and Bjorndal 1991, pp. 146-147; Witherington 1992, pp. 36-38; Villanueva-Mayor et al. 2003, entire).

In 1990, a major part of the NEC was included as part of the coastal barrier system under the Coastal Barrier Resources Act (CBRA), as requested by the Puerto Rico Planning Board (PRPB). The CBRA encourages the conservation of hurricane-prone, biologically rich coastal barriers by restricting Federal expenditures that encourage development, such as federally subsidized flood insurance (16 U.S.C. 3501-3510). In 1996, the PRPB rezoned the lands within the NEC as a tourist-residential development zone, allowing for recreational and tourism development of the area. Although the NEC had been designated as a Natural Reserve by the former Puerto Rico Governor in 2007, the new administration repealed the designation in October 2009. Thus, lands within the NEC continue under private and Commonwealth (PRIDCO, NPC) ownership, and are subject to potential future development. The NEC remains a unit within the CBRA system.

Between 2007 and 2008, the Service awarded more than $4,000,000 for the acquisition of over 400 acres in the San Miguel area, and continues to support acquisition in the area to ensure long-term conservation of these lands, particularly for leatherback sea turtle nesting. However, development pressures exist, and there are no lighting codes or regulations in Puerto Rico. Therefore, development could threaten leatherback nesting within the NEC.

As indicated in the petition, another factor that may affect leatherback sea turtle nesting habitat is climate change. Impacts from climate change, especially due to global warming, are likely to become more apparent in future years (Intergovernmental Panel on Climate Change 2007, pp. 12-17). The global mean temperature has risen 0.76 degrees Celsius over the last 150 years, and the linear trend over the last 50 years is nearly twice that for the last 100 years (Intergovernmental Panel on Climate Change 2007, p. 5). One of the most certain consequences of climate change is sea level rise (Titus and Narayanan 1995, pp. 123-132), which will result in increased erosion rates along nesting beaches.

On some undeveloped beaches, shoreline migration will have limited effects on the suitability of nesting habitat. Bruun (1962, pp. 123-126) hypothesized that during sea level rise, a typical beach profile will maintain its configuration but will be translated landward and upward. However, along developed coastlines, and especially in areas where erosion control structures have been constructed to limit shoreline movement, rising sea levels are likely to cause severe effects on nesting females and their eggs (Hawkes et al. 2009, p. 139; Poloczanska et al. 2009, pp. 164, 174). Erosion control structures can result in the permanent loss of dry nesting beach or deter nesting females from reaching suitable nesting sites (National Research Council 1990, p. 77). Nesting females may deposit eggs seaward of the erosion control structures potentially subjecting them to repeated tidal inundation.

For additional information on threats affecting leatherback sea turtle nesting beaches, refer to the Leatherback Sea Turtle ( Dermochelys coriacea ) 5-Year Review (NMFS and Service 2007, pp. 32-34); the Recovery Plan for Leatherback Turtles ( Dermochelys coriacea ) in the U.S. Caribbean, Atlantic, and Gulf of Mexico (NMFS and Service 1992, pp. 9-14); and the Recovery Plan for U.S. Pacific Populations of the Leatherback Turtle ( Dermochelys coriacea ) (NMFS and Service 1998, pp. 21-23), available on the Internet at http://www.regulations.gov.

The Service agrees with the petition that threats to leatherback sea turtle nesting habitat are substantial. We find the information submitted by the petitioner related to this claim to be substantial information for this claim.

Based on the above information and information readily available in our files, and pursuant to criteria specified in 50 CFR 424.14(b), we find the petition presents substantial scientific information indicating that revision of the critical habitat designation for the leatherback sea turtle may be warranted.

Pursuant to the provisions of the Act regarding revision of critical habitat and petitions for revision, we find that revisions to critical habitat for the leatherback sea turtle under the Act should be made. As described in the How the Service Intends to Proceed section below, we intend to fully assess critical habitat during the future planned status review for the leatherback sea turtle.

The Service intends that any revisions to critical habitat for the leatherback sea turtle be as accurate as possible. To ensure that the status review is comprehensive, the Service will request scientific and commercial data and other information regarding the leatherback sea turtle from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding when we initiate the review.

Until the Service is able to revise the critical habitat designation for the leatherback sea turtle, the currently designated critical habitat, as well as areas that support leatherback sea turtles but are outside of the current critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act. Federal agency actions are subject to the regulatory protections afforded by section 7(a)(2), which requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat.

One of the recommendations contained in the 5-year reviews for listed sea turtle species, completed in 2007, was that the Service and NMFS conduct an analysis and review for each listed sea turtle (except the Kemp's ridley sea turtle) to determine the application of the distinct population segment policy. After completing the reviews, the Service and NMFS made a decision to conduct the recommended sea turtle status reviews in the following order: (1) Loggerhead sea turtle, (2) Green sea turtle, (3) Olive ridley sea turtle, (4) Leatherback sea turtle, and (5) Hawksbill sea turtle.

The loggerhead status review was selected to be conducted first because the species is listed as threatened worldwide, and there were substantial concerns about the status of some nesting populations. The green and olive ridley turtles were selected to be the second and third status reviews conducted because they have multiple vertebrate populations listed under the Act, some listed as threatened and some as endangered, and an assessment is needed to determine if these populations qualify as individual distinct population segments (DPSs) or are part of larger DPSs. The leatherback and hawksbill sea turtles were selected as the last two status reviews to be conducted because both species are listed as endangered worldwide and receive the fullest protection under the Act; therefore, the need for status reviews for these two species was deemed not to be as urgent as for the other species.

Once a status review is completed for each species, a rulemaking process would be conducted, if appropriate, to revise the species' status, list a DPS of the species, or designate or revise critical habitat if prudent and determinable. The status review for the loggerhead sea turtle has been completed (Conant et al., 2009) and rulemaking is in progress (75 FR 12598; March 16, 2010); status reviews for the other species have not been initiated because they have been precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. It is our intention to assess leatherback sea turtle critical habitat as part of the future planned status review for the leatherback sea turtle.

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

The primary authors of this notice are the staff members of the U.S. Fish and Wildlife Service, North Florida Ecological Services Office (see FOR FURTHER INFORMATION CONTACT ) and the Caribbean Ecological Services Field Office (P.O. Box 491, Boquerón, PR 00622; telephone 787-851-7297).