Agricultural Marketing Service
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Economic Development Administration
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Army Department
Engineers Corps
Federal Energy Regulatory Commission
Western Area Power Administration
Children and Families Administration
Indian Health Service
National Institutes of Health
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U.S. Immigration and Customs Enforcement
Fish and Wildlife Service
Geological Survey
Indian Affairs Bureau
Land Management Bureau
Office of Natural Resources Revenue
Drug Enforcement Administration
Institute of Museum and Library Services
Federal Aviation Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2013-07-09, which applied to certain The Boeing Company Model 737-700, -700C, -800, and -900ER series airplanes, Model 747-400F series airplanes, and Model 767-200 and -300 series airplanes. AD 2013-07-09 required a general visual inspection for affected serial numbers of the crew oxygen mask stowage box units, and replacement or re-identification as necessary. This AD retains the requirements of AD 2013-07-09 and expands the applicability. This AD was prompted by a determination that the affected parts may be installed on airplanes outside the original applicability of AD 2013-07-09. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective May 26, 2021.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of May 20, 2013 (78 FR 22178, April 15, 2013).
For Boeing service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket on the internet at
Nicole Tsang, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3959; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-07-09, Amendment 39-17413 (78 FR 22178, April 15, 2013) (AD 2013-07-09). AD 2013-07-09 applied to certain The Boeing Company Model 737-700, -700C, -800, and -900ER series airplanes, Model 747-400F series airplanes, and Model 767-200 and -300 series airplanes. The NPRM published in the
The FAA issued a supplemental NPRM (SNPRM) that published in the
The FAA gave the public the opportunity to participate in developing this AD. The following presents the comments received on the SNPRM and the FAA's response to each comment.
The Air Line Pilots Association, International (ALPA) and Boeing expressed support for the SNPRM. Additional comments from ALPA are addressed below.
Aviation Partners Boeing stated that the installation of blended or split scimitar winglets per Supplemental Type Certificate (STC) ST01219SE on Model 737CL airplanes (Model 737-200, -300, -400, and -500 series airplanes), and blended winglets per STC ST01518SE on Model 757 airplanes, does not affect the accomplishment of the manufacturer's service instructions.
The FAA agrees with the commenter that STC ST01219SE and STC ST01518SE do not affect the accomplishment of the manufacturer's
ALPA requested that the FAA shorten the compliance time of the proposed AD from 24 months to 12 months. ALPA noted that several commenters on the NPRM requested an extended compliance time, and that it is not in favor of an extension.
The FAA disagrees with the commenter's request. ALPA did not provide justification for its request. As noted in the SNPRM, in developing an appropriate compliance time for this action, the FAA considered the safety implications, parts availability, and normal maintenance schedules for the timely accomplishment of the inspection and replacement or re-identification as necessary. Further, operators are always permitted to accomplish the requirements of an AD at a time earlier than the specified compliance time. In addition, to reduce the compliance time of the proposed AD would necessitate (under the provisions of the Administrative Procedure Act) reissuing the notice, reopening the period for public comment, considering additional comments subsequently received, and eventually issuing a final rule. That procedure could add unwarranted time to the rulemaking process. In light of this, and in consideration of the amount of time that has already elapsed since issuance of the original notice, the FAA has determined that further delay of this AD is not appropriate. The FAA has not changed this AD in this regard.
United Parcel Service Co. (UPS) requested that the introductory text to paragraph (i) of the proposed AD be revised to allow a records review in lieu of the specified inspection, provided it can be conclusively determined that the serial number is not an affected (suspect) part (one that is identified in the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011). UPS noted that paragraph (i) of the proposed AD would allow a records review if the serial number of the crew oxygen mask stowage box unit could be conclusively determined. UPS noted that it has identified scenarios where the serial number may not be conclusively known, but the unit can be confirmed to not be one of the affected units. UPS explained that Boeing was not consistent in providing serial numbers for the units with delivery documents. However, UPS noted that through records showing when units were changed, as well as knowing the date of production of a given aircraft, UPS can conclusively determine that the units with the affected serial numbers were not installed on a given aircraft.
The FAA agrees with the commenter's request for the reasons provided. The FAA has revised the introductory text to paragraph (i) of this AD to clarify that a records review is also acceptable if it can be conclusively determined that the serial number is not one that is identified in the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011.
United Airlines requested that paragraph (i)(1) of the proposed AD be revised to specify that units with a manufacturing date outside the range of July 2007 through November 2007 inclusive (instead of July 12, 2007, through November 20, 2007, inclusive) do not need to be replaced. United Airlines also requested that similar revisions be made to the introductory text to paragraph (i) of the proposed AD, and paragraphs (i)(2), (j)(1), and (j)(2) of the proposed AD. United Airlines stated that the manufacture date on the mask stowage box units typically shows only the month and year (in MMYYYY format). The commenter noted that determining the exact calendar date of manufacture may not be possible, and without a specific serial number, the manufacturer would not be able to narrow down the date.
The FAA partially agrees with the commenter's request. The FAA agrees that determining the exact date of manufacture may not be possible because the manufacturer date on the mask stowage box units typically shows only the month and year. The FAA has therefore revised paragraph (i)(1) of this AD to specify that units with a manufacturing date outside the range of July 2007 through November 2007 inclusive do not need to be replaced. The FAA has also revised paragraph (j)(1) of this AD to specify that units where the serial number is unreadable or undetermined, but the manufacturing date can conclusively be determined to be outside the range of July 2007 through November 2007 inclusive, may be installed on an airplane. However, the FAA has determined that the commenter's suggested revisions to the introductory text to paragraph (i) of this AD are not needed because the introductory text to paragraph (i) of this AD only requires determining the serial number and does not specify actions based on whether or not the serial number can be determined. In addition, the FAA has determined that the commenter's suggested revisions to paragraphs (i)(2) and (j)(2) of this AD are not needed because the actions in those paragraphs are only applicable for units with a known serial number that is identified in table 2 of the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011 (those that need re-identification).
Delta Air Lines (Delta) requested confirmation that it may use the respective fleet's AMM to perform removals and installations if any of the affected units are found on its airplanes. Delta noted that paragraph (i) of the proposed AD does not specify instructions for removal or replacement. Delta asked for confirmation that using the applicable AMM for these tasks would not require it to obtain an alternative method of compliance (AMOC).
The FAA agrees that the commenter's intended approach is acceptable for compliance with this AD and that no AMOC is needed to use the applicable AMM. The AMMs for the affected airplanes contain adequate instructions for removal and installation of the affected units. No change to this AD is necessary.
The FAA has revised paragraph (i)(1) of this AD to clarify conditions that require replacement of a crew oxygen mask stowage box unit, which includes an unreadable or undetermined serial number, except as otherwise specified.
The FAA has also revised paragraph (j)(1) of this AD to clarify conditions that prohibit the installation of a crew oxygen mask stowage box unit, which includes an unreadable or undetermined serial number, except as specified otherwise.
The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously, and minor editorial changes. The FAA has determined that these minor changes:
• Are consistent with the intent that was proposed in the SNPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the SNPRM.
The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
This AD requires Boeing Alert Service Bulletin 737-35A1121, Revision 1, dated November 7, 2011; Boeing Alert Service Bulletin 747-35A2126, Revision 1, dated September 29, 2011; Boeing Alert Service Bulletin 767-35A0057, Revision 1, dated November 17, 2011; and Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011; which the Director of the Federal Register approved for incorporation by reference as of May 20, 2013 (78 FR 22178, April 15, 2013). This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 3,723 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has received no definitive data that would enable providing cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA has determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective May 26, 2021.
This AD replaces AD 2013-07-09, Amendment 39-17413 (78 FR 22178, April 15, 2013) (AD 2013-07-09).
This AD applies to all The Boeing Company airplanes, certificated in any category, as identified in paragraphs (c)(1) through (5) of this AD.
(1) Model 737-200, -300, -400, -500, -600, -700, -700C, -800, -900, and -900ER series airplanes.
(2) Model 737-8 and 737-9 airplanes.
(3) Model 747-200B, 747-200C, 747-200F, 747-400, 747-400D, and 747-400F series airplanes.
(4) Model 757-200, -200PF, -200CB, and -300 series airplanes.
(5) Model 767-200, -300, -300F, and -400ER series airplanes.
Air Transport Association (ATA) of America Code 35, Oxygen.
This AD was prompted by reports indicating that certain crew oxygen mask stowage box units were possibly delivered with a burr in the inlet fitting. The burr might break loose during test or operation, and might pose an ignition source or cause an inlet valve to jam. This AD was also prompted by a determination that the affected parts may be installed on airplanes outside the applicability of AD 2013-07-09. The FAA is issuing this AD to address this possible ignition source, which could result in an oxygen-fed fire; or an inlet valve jam in a crew oxygen mask stowage box unit, which could result in restricted flow of oxygen.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2013-07-09 with no changes. For The Boeing Company Model 737 airplanes as identified in Boeing Alert
(1) If any crew oxygen mask stowage box unit has a serial number identified in table 1 of the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011: Before further flight, replace the crew oxygen mask stowage box unit with a new or serviceable unit in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-35A1121, Revision 1, dated November 7, 2011; Boeing Alert Service Bulletin 747-35A2126, Revision 1, dated September 29, 2011; or Boeing Alert Service Bulletin 767-35A0057, Revision 1, dated November 17, 2011; as applicable.
(2) If any crew oxygen mask stowage box unit has a serial number identified in table 2 of the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011: Before further flight, add the letter “I” to the end of the serial number (identified as “SER”) on the identification label, in accordance with the Accomplishment Instructions of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011; and reinstall in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-35A1121, Revision 1, dated November 7, 2011; Boeing Alert Service Bulletin 747-35A2126, Revision 1, dated September 29, 2011; or Boeing Alert Service Bulletin 767-35A0057, Revision 1, dated November 17, 2011; as applicable.
(3) If no crew oxygen mask stowage box unit has a serial number identified in the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011: Unless a records review was done to determine the serial number, before further flight, reinstall the crew oxygen mask stowage box unit, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-35A1121, Revision 1, dated November 7, 2011; Boeing Alert Service Bulletin 747-35A2126, Revision 1, dated September 29, 2011; or Boeing Alert Service Bulletin 767-35A0057, Revision 1, dated November 17, 2011; as applicable.
This paragraph restates the requirements of paragraph (h) of AD 2013-07-09 with no changes. For airplanes identified in paragraph (g) of this AD: As of May 20, 2013 (the effective date of AD 2013-07-09), no person may install a crew oxygen mask stowage box unit with a serial number listed in the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011, on any airplane.
For airplanes other than those identified in paragraph (g) of this AD: Within 24 months after the effective date of this AD, do a general visual inspection to determine if the serial number of the crew oxygen mask stowage box unit is identified in the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011. A review of airplane maintenance records is acceptable in lieu of this inspection if the serial number of the crew oxygen mask stowage box unit can be conclusively determined from that review, or if it can be conclusively determined that the serial number is not one that is identified in the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011.
(1) If any crew oxygen mask stowage box unit has a serial number identified in table 1 of the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011, or the crew oxygen mask stowage box unit has a serial number that is unreadable or undetermined: Before further flight, replace the crew oxygen mask stowage box unit with a new or serviceable unit. If any crew oxygen mask stowage box unit's serial number is unreadable or undetermined, but the manufacturing date can conclusively be determined to be outside the range of July 2007 through November 2007 inclusive, the crew oxygen mask stowage box unit does not need to be replaced.
(2) If any crew oxygen mask stowage box unit has a serial number identified in table 2 of the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011: Before further flight, add the letter “I” to the end of the serial number (identified as “SER”) on the identification label, in accordance with the Accomplishment Instructions of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011; and reinstall the crew oxygen mask stowage box unit.
(1) For airplanes other than those identified in paragraph (g) of this AD: As of the effective date of this AD, no person may install a crew oxygen mask stowage box unit with a serial number identified in table 1 of the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011; or any crew oxygen mask stowage box unit with a serial number that is unreadable or undetermined unless the manufacturing date can conclusively be determined by a review of the airplane maintenance records to be outside the range of July 2007 through November 2007 inclusive.
(2) For airplanes other than those identified in paragraph (g) of this AD: As of the effective date of this AD, no person may install a crew oxygen mask stowage box unit with a serial number identified in table 2 of the Appendix of Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011, on any airplane, unless that crew oxygen mask stowage box unit has been modified as required by paragraph (i)(2) of this AD.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (l) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously for AD 2013-07-09 are approved as AMOCs for the corresponding provisions of this AD.
For more information about this AD, contact Nicole Tsang, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3959; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on May 20, 2013 (78 FR 22178, April 15, 2013).
(i) Boeing Alert Service Bulletin 737-35A1121, Revision 1, dated November 7, 2011.
(ii) Boeing Alert Service Bulletin 747-35A2126, Revision 1, dated September 29, 2011.
(iii) Boeing Alert Service Bulletin 767-35A0057, Revision 1, dated November 17, 2011.
(iv) Intertechnique Service Bulletin MXP1/4-35-175, Revision 2, dated May 10, 2011.
(4) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
(5) For Intertechnique service information identified in this AD, contact Aerotechnics, 61 rue Pierre Curie BP 1, 78373 Plaisir, CEDEX, France; phone: +33 1 6486 6964; internet
(6) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Policy statement.
This action establishes the FAA's policy applicable to waivers of FAA ground safety requirements for licensed commercial launch and reentry activities at certain Federal ranges. The Federal ranges that currently meet the criteria for application of this policy are: Cape Canaveral Air Force Station, Vandenberg Air Force Base, Wallops Flight Facility, and Kennedy Space Center.
The policy described herein was effective November 3, 2020.
For additional information concerning this action, contact Randy Repcheck, Acting Executive Director, Office of Operational Safety, via letter: 800 Independence Ave. SW, Washington, DC 20591; via email:
The Commercial Space Launch Act of 1984, as amended and codified at 51 U.S.C. 50901-50923, authorizes the Department of Transportation, and the FAA through delegation, to oversee, license, and regulate commercial launch and reentry activities, and the operation of launch and reentry sites as carried out by U.S. citizens or within the United States. Section 50905(b)(3) allows the Secretary to waive a requirement, including the requirement to obtain a license, for an individual applicant if the Secretary decides that the waiver is in the public interest and will not jeopardize the public health and safety, safety of property, and national security and foreign policy interests of the United States.
The FAA has worked in partnership for launch safety with the U.S. Air Force (AF) since 2001 and the National Aeronautics and Space Administration (NASA) since 2007. An objective of these interagency partnerships has been to maintain common safety standards and practices for launch across the Federal Government. These agencies formed the Common Standards Working Group (CSWG), which is tri-chaired by FAA, AF, and NASA. The CSWG is a forum to maintain common safety standards and practices between the agencies for both commercial and Government launch activities. The CSWG is comprised of range safety personnel from Cape Canaveral Air Force Station (CCAFS), Vandenberg Air Force Base (VAFB), Wallops Flight Facility (WFF), and Kennedy Space Center (KSC).
In 2006, the FAA issued a final rule that established the launch site safety assessment (LSSA) process.
Subpart C recognizes that a launch operator may use an LSSA to demonstrate compliance with FAA safety requirements.
The FAA has completed LSSAs for CCAFS, VAFB, WFF, and it is in the process of finalizing an LSSA for KSC. In the initial assessments for CCAFS, VAFB, and WFF, the FAA did not find any substantial differences between the requirements and practices of these Federal ranges and FAA regulations because 14 CFR part 417 was derived largely from existing Federal launch range safety requirements. Similarly, in developing the LSSA for KSC, the FAA likewise concluded that KSC's requirements and practices were not substantially different from FAA ground safety regulations. The FAA has maintained and updated the initial assessments for CCAFS, VAFB, and WFF to account for changes in processes at these Federal ranges and in FAA regulations. Where the range's requirement or practice did not meet FAA regulations, the FAA either made a determination that the range's requirement provides for an equivalent level of safety to the FAA's requirement, waived the FAA requirement, or required the operator to comply with the FAA requirement. In addition to the LSSA process, the FAA, through its participation in the CSWG, has gained significant insight into the ground safety requirements and practices for CCAFS, VAFB, WFF, and KSC.
The 2015 Commercial Space Launch Competitiveness Act directed the Secretary of Transportation to consult with the Secretary of Defense, Administrator of NASA, and other agencies, as appropriate, to identify and evaluate requirements imposed on commercial space launch and reentry operators to protect the public health and safety, safety of property, national security interests, and foreign policy interests of the United States.
In the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232, Sec. 1606, 132 Stat. 2107), Congress directed that the Secretary of Defense may not impose any requirement on a licensee or transferee that is duplicative of, or overlaps in intent with, any requirement imposed by the Secretary of Transportation under Title 51.
Section 415.31(a) states, in relevant part, that the FAA will issue a safety approval to a license applicant proposing to launch from a Federal launch range if the applicant has contracted with the Federal launch range for the provision of safety-related launch services and property, provided the LSSA shows that the range's launch services and launch property satisfy part 417.
Subpart E of part 417 contains the FAA's public safety requirements that apply to ground safety at launch sites in the United States, including Federal launch ranges. Under § 417.402(b), the FAA will accept a launch operator's proposed ground safety process for an expendable launch vehicle from a Federal launch range without further demonstration of compliance to the FAA if:
(1) A launch operator has contracted with a Federal launch range for the provision of ground safety process; and
(2) the FAA has assessed the Federal launch range through its launch site safety assessment and found that the Federal launch range's ground safety process satisfies the requirements of subpart E.
In such cases, the FAA treats the Federal launch range's process as that of a launch operator.
Generally, under subpart E, the FAA requires an operator to conduct a ground safety analysis for launch vehicle hardware, ground hardware including launch site and ground support equipment, launch processing, and post-launch operations. This analysis must identify each potential hazard, associated cause, and hazard control that a launch operator must establish and maintain to keep each identified hazard from affecting the public. An operator must identify and control hazards that extend beyond the launch location under the control of a launch operator, including hazards arising from associated payloads. These hazards include, but are not limited to, blast overpressure and fragmentation resulting from an explosion, fire and deflagration, sudden release of a hazardous material, and inadvertent ignition of a propulsive launch vehicle payload, stage, or motor. The FAA requires an operator to institute hazard controls, which may include safety clear zones, designated hazard areas, or other means of protecting the public from hazardous operations. In addition, an operator also has to identify and control launch location hazards, which are hazards that stay within the confines of the location under the control of a launch operator.
It is against these subpart E requirements that the FAA assesses a Federal range's process to determine if the range's process satisfies FAA requirements. If it does not, the FAA addresses the difference by issuing equivalent level of safety determinations or waivers, or—if necessary—requiring compliance with the FAA's requirements.
Section 431.35(c) requires, in part, that an applicant demonstrate that the launch of a reusable launch vehicle complies with acceptable risk criteria by employing a system safety process to identify the hazards and assess the risks to public health and safety and the safety of property associated with the mission. The FAA requires this system safety process to identify and assess hazards associated with both licensed ground and flight activities. This system safety process must identify the same types of ground safety hazards and related ground safety hazard controls as detailed above with regard to part 417, subpart E; however, there is no formally prescribed LSSA process under part 431. Therefore, operators must meet all of the safety requirements in part 431, regardless of whether the FAA has completed an LSSA for the relevant Federal launch range or not.
As noted, Congress has directed Federal agencies involved in commercial launches to eliminate duplicative requirements. Accordingly, it is the FAA's policy to use its authority in 51 U.S.C. 50905(b)(3), as delegated by the Secretary, to waive ground safety requirements for launches conducted from certain Federal ranges, when appropriate, if an operator has contracted with the Federal range for the provision of the ground safety process. Specifically, the FAA generally will, upon the applicant's showing, waive the requirements in §§ 415.31(a) and 417.402(b) to the extent that those provisions require an LSSA to verify that a Federal range's ground safety process satisfies the requirements of subpart E of part 417. Additionally, the FAA generally will, upon the applicant's showing, grant a partial waiver of § 431.35(c) to the extent that section requires a system safety process for the ground portion of launch at these Federal ranges.
The FAA finds that this policy is in the public interest because it reduces duplicative requirements imposed by Federal authorities on commercial space operators. This policy responds to repeated Congressional direction to remove overlapping requirements. Removing duplicative Federal government requirements increases efficiency in launch application processing and approval for both Government and commercial stakeholders. Removing duplicative requirements will also result in a clear delineation of responsibility between Federal actors with regard to oversight over different portions of launch, which is expected to reduce confusion and improve safety of the public.
The FAA further finds that this policy would not jeopardize public health and safety, safety of property, or the national security and foreign policy interests of the United States. This policy will apply only to Federal ranges: (1) With which the FAA has a long-term working relationship through the CSWG, and (2) that have a cadence of both commercial and government launches that facilitates highly-developed and well-understood processes and requirements. To date, those ranges include: CCAFS, VAFB,
Under this policy, the FAA will not continue to update LSSAs for ground safety for these launch sites; rather, the FAA will continue to work with AF and NASA through the CSWG to ensure consistency of requirements for ground safety at Federal and non-Federal launch ranges. The FAA retains its authority, however, to deny or withdraw any waiver, or to withdraw this policy, if it determines that public health and safety, safety of property, or national security and foreign policy interests of the United States would be jeopardized.
The FAA determines the maximum probable loss (MPL) from covered claims by a third party for bodily injury or property damage, and the United States, its agencies, and its contractors and subcontractors for covered property damage or loss, resulting from licensed activity. The MPL determination forms the basis for financial responsibility requirements issued in a license order. The FAA calculates the MPL taking into account the hazards associated with the licensed activity. The MPL amount for both the ground and flight portions of a licensed activity is detailed in the license orders.
The FAA's process for determining MPL will not change as a result of this policy statement. The FAA will continue to calculate MPL for both ground and flight portions of launch at CCAFS, VAFB, WFF, and KSC. Furthermore, the FAA does not expect this policy to impact the MPL amounts for licensed activities at these Federal ranges.
The FAA currently requires an applicant seeking to conduct a launch from a Federal range to show evidence of an agreement with the Federal range in its license application. 14 CFR 417.13(a). This agreement must provide for access to and use of property and services required to support a licensed launch from that facility.
An applicant seeking a waiver consistent with this policy statement should include in its application the following:
“[INSERT COMPANY NAME] is seeking a waiver, consistent with the policy statement published at [INSERT
The applicant should also provide the FAA its agreement with the Federal range in accordance with regulations.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or clarify agency policies.
Federal Energy Regulatory Commission.
Final rule; correction.
The Federal Energy Regulatory Commission published a document in the
This correction is effective June 1, 2021.
Christopher Chaulk (Legal Information), Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6720.
Delaware River Basin Commission.
Final rule.
The Delaware River Basin Commission is amending its Comprehensive Plan and adopting new regulations to prohibit high volume hydraulic fracturing in hydrocarbon-bearing rock formations within the Delaware River Basin. The Commission is simultaneously adopting unrelated amendments to its rules concerning the classification of projects for review under Section 3.8 of the Compact and regulatory program fees.
This final rule is effective May 21, 2021.
Pamela M. Bush, Esquire, 609-477-7203,
The Delaware River Basin Commission (“DRBC” or “Commission”) is a Federal-interstate compact agency charged with managing the water resources of the Delaware River Basin on a regional basis without regard to political boundaries. Its members are the governors of the four basin states—Delaware, New Jersey, New York and Pennsylvania—and the North Atlantic Division Commander of the U.S. Army Corps of Engineers, representing the Federal Government.
When the potential for developing natural gas from tight shale formations within the Basin using high volume hydraulic fracturing (“HVHF”) and horizontal drilling techniques and the risks to water resources posed by such activities became known to the Commission, Commission staff undertook a scientific, technical, regulatory, and policy analysis to determine the appropriate response in light of the Commission's statutory mission and Comprehensive Plan.
An important milestone occurred on September 13, 2017, when the DRBC Commissioners by a Resolution for the Minutes directed the Executive Director to prepare and publish for public comment a revised set of draft regulations, to include, among other things, “prohibitions relating to the production of natural gas utilizing horizontal drilling and hydraulic fracturing within the basin.” In accordance with the Commissioners' directive, the Commission proposed amendments to its Comprehensive Plan and to its Special Regulations at 18 CFR part 440, including a prohibition on HVHF within the Basin. The Commission simultaneously proposed amendments to its Administrative Manual—Rules of Practice and Procedure, 18 CFR part 401, concerning the classification of projects for review under Section 3.8 of the Compact (§ 401.35) and regulatory program fees (§ 401.43). See 83 FR 1586, January 12, 2018. Also see, 21 DE Reg. 526, January 1, 2018; 50 N.J.R. 717, February 5, 2018; NYS Register, January 3, 2018 p. 5; and 48 Pa. B. 255, January 13, 2018. Some of the proposed amendments to part 401 were related to the new part 440 and others were not; however, only the changes unrelated to part 440 are being adopted as final rules.
The changes unrelated to HVHF do not substantively alter Commission requirements or fees, but better align the rules with the Commission's practices, eliminate unnecessary language, clarify language that has been misconstrued, and in instances replace the discretion of the Executive Director with that of the Commission. The changes to project review classifications: (1) Retain Commission review of alterations to wetlands of less than 25 acres where a state or a federal level review and permit system is not in effect, while eliminating additional triggers for such review; (2) remove the provision for review of regional wastewater treatment plans developed pursuant to the Federal Water Pollution Control Act because the basin states have effective programs for the transparent development and implementation of such plans; (3) replace the discretion of the Executive Director with that of the Commission to require review under Section 3.8 of the Compact of any project having a potential substantial water quality impact on waters classified as Special Protection Waters; and (4) clarify that the Commission as a whole, not merely any single agency of a signatory party, may determine that a project in an excluded classification is required to be submitted for review under Section 3.8 of the Compact. The changes to regulatory program fees replace the term “docket application fee” with the more accurate term “application fee,” because project review does not always involve a “docket.”
Extensive opportunity for public input on the proposed rules was provided during the public comment period that took place from November 30, 2017 to March 30, 2018. In addition to accepting written comments, the Commission accepted oral comment at six public hearings, one of which was conducted through an operator-assisted toll-free teleconference to avoid the need for travel to a hearing location. During the comment period, the Commission received a total of 8,903 comment submissions (8,680 in writing and 223 at public hearings). In many cases, a single comment submission included numerous detailed comments. A Comment and Response Document was prepared and adopted by the Commission to address the comments received from the public.
Together with the other materials gathered during the development of its regulation, the Commission reviewed the extensive public comments, including consultant reports, scientific literature and other statements and materials submitted, and examined the experience of other jurisdictions with HVHF. Based upon its review, the Commission by Resolution No. 2021-01 on February 25, 2021, found and determined that:
1. As the scientific and technical literature and the reports, studies, findings and conclusions of other government agencies reviewed by the Commission have documented, and as the more than a decade of experience with high volume hydraulic fracturing in regions outside the Delaware River Basin have evidenced, despite the dissemination of industry best practices and government regulation, high volume hydraulic fracturing and related activities have adversely impacted surface water and groundwater resources, including sources of drinking water, and have harmed aquatic life in some regions where these activities have been performed.
2. The region of the Delaware River Basin underlain by shale formations is comprised largely of rural areas dependent upon groundwater resources; sensitive headwater areas considered to have high water resource values; and areas draining to DRBC Special Protection Waters.
3. The geology of the region in which shale formations potentially containing natural gas are located in the Basin is characterized by extensive geologic faults and fractures providing preferential pathways for migration of fluids (including gases).
4. If commercially recoverable natural gas is present in the Delaware River Basin and if HVHF were to proceed in the Basin, then:
a. Spills and releases of hydraulic fracturing chemicals, fluids and wastewater would adversely impact surface water and groundwater, and losses of well integrity would result in subsurface fluid (including gas) migration, impairing drinking water resources, and other uses established in the Comprehensive Plan.
b. The fluids released or migrating would contain pollutants, including salts, metals, radioactive materials, organic compounds, endocrine-disrupting and toxic chemicals, and chemicals for which toxicity has not been determined, impairing the water uses protected by the Comprehensive Plan.
c. HVHF activities and their impacts would be dispersed over and adversely affect thousands of acres of sensitive water resource features, including, among others, forested groundwater infiltration areas, other groundwater recharge locations, and drainage areas to Special Protection Waters, where few existing roads are designed to safely carry the heavy industrial traffic required to support HVHF, prevent dangerous spills or provide access to remediate spills that occur.
5. For these reasons and other grounds described in the administrative record for this rulemaking:
a. High-volume hydraulic fracturing and related activities pose significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the water resources of the Delaware River Basin and to Special Protection Waters of the Basin, considered by the Commission to have exceptionally high scenic, recreational, ecological, and/or water supply values.
b. Controlling future pollution by prohibiting high volume hydraulic fracturing in the Basin is required to effectuate the Commission's Comprehensive Plan, avoid injury to the waters of the Basin as contemplated by the Comprehensive Plan and protect the public health and preserve the waters of the Basin for uses in accordance with the Comprehensive Plan.
The Commission's Comment and Response Document responds to comments regarding the risks to water resources posed by HVHF, and the potential and observed adverse impacts of HVHF and related activities on water resources. In addition, it addresses comments concerning: The Commission's authority; the intersection of Commission, state and Federal rules; the proposed rule text; basis and background documents; economic impacts; the relationship of HVHF and related activities to DRBC's Comprehensive Plan, rules and policies; public health; chemical disclosures; climate change; renewable energy; policies and reports on the Susquehanna River Basin; the public input process; compliance and enforcement; constitutional challenges and other matters.
Upon adopting its final rules concerning HVHF, the Commission withdrew proposed § 440.4—Exportation of water for hydraulic fracturing of oil and natural gas wells and § 440.5—Produced Water (and importation of wastewater), and revised § 440.2—Definitions to eliminate terms associated solely with the two deleted sections. Within part 401, comprising the Commission's Rules of Practice and Procedure, proposed amendments to § 401.35—Classification of Projects for Review concerning the importation and exportation of water and wastewater into and from the Basin were withdrawn. Also, within part 401, proposed amendments to § 401.43—Regulatory Program Fees related to wastewater treatability studies were withdrawn. The final rules were revised to eliminate all references to the deleted sections, and public comments specific to these sections are not addressed in the Commission's Comment and Response document. The topics of water exportation and wastewater importation will be addressed as appropriate through one or more separate Commission actions.
The Comprehensive Plan amendments and final rules replace the Executive Director Determinations of May 19, 2009, June 14, 2010 and July 23, 2010. The Resolution for the Minutes of May 5, 2010, which postponed the Commission's consideration of well pad projects until the adoption of final rules, expires by its own terms.
Additional materials can be found on the Commission's website,
The Commission's notice of proposed rulemaking, proposed rule text, written comments received, and transcripts of public hearings can be found on the Commission's website at
A summary of Commission actions with respect to hydraulic fracturing for oil and gas extraction prior to the Commission's September 13, 2017 directive is available at:
Administrative practice and procedure, Fees, Project review, Water pollution control, Water resources.
Natural gas, Water pollution control, Water resources.
For the reasons set forth in the preamble, the Delaware River Basin Commission amends 18 CFR chapter III as follows:
Delaware River Basin Compact (75 Stat. 688), unless otherwise noted.
The revisions read as follows:
(a) Except as the Commission may specially direct by notice to the project owner or sponsor, a project in any of the following classifications will be deemed not to have a substantial effect on the water resources of the Basin and is not required to be submitted under Section 3.8 of the Compact:
(2) A withdrawal from ground water when the daily average gross withdrawal during any 30 consecutive day period does not exceed 100,000 gallons;
(15) Draining, filling, or otherwise altering marshes or wetlands when the area affected is less than 25 acres; provided, however, that areas less than 25 acres shall be subject to Commission review and action where neither a state
(b) * * *
(14) Landfills and solid waste disposal facilities affecting the water resources of the Basin;
(15) State and local standards of flood plain regulation;
(16) Electric generating or cogenerating facilities designed to consumptively use in excess of 100,000 gallons per day of water during any 30-day period; and
(17) Any other project that the Commission may specially direct by notice to the project sponsor or land owner as having a potential substantial water quality impact on waters classified as Special Protection Waters.
(c) Regardless of whether expressly excluded from review by paragraph (a) of this section, any project or class of projects that in the view of the Commission could have a substantial effect on the water resources of the basin may, upon special notice to the project sponsor or landowner, be subject to the requirement for review under section 3.8 of the Compact.
The revisions read as follows:
(b) * * *
(1)
(iii)
(2) * * *
(i) Except as provided in paragraph (b)(2)(ii) of this section, an annual monitoring and coordination fee shall apply to each active water allocation or wastewater discharge approval issued pursuant to the Compact and implementing regulations in this part, regardless of whether the approval was issued by the Commission in the form of a docket, permit or other instrument, or by a Signatory Party Agency under the One Permit Program rule (§ 401.42).
(4) * * *
(iii)
(c)
(e) * * *
Delaware River Basin Compact (75 Stat. 688).
(a)
(b)
(c)
(d)
(e)
(f)
For purposes of this part, the following terms and phrases have the meanings provided. Some definitions differ from those provided in regulations of one or more agencies of the Commission's member states and the Federal Government.
(a)
(b)
Social Security Administration.
Final rule.
We are rescinding our rules on improved agency guidance documents. We published the rules pursuant to an Executive order (E.O.) entitled, “Promoting the Rule of Law Through Improved Agency Guidance Documents,” signed October 9, 2019. The October 2019 E.O. has been revoked by an E.O. entitled, “Revocation of Certain Executive Orders Concerning Federal Regulation,” signed January 20, 2021. We are rescinding these rules because the January 2021 E.O. requires the heads of Federal agencies to take steps promptly to rescind any regulations that implement or enforce the October 2019 E.O.
This final rule will be effective May 21, 2021.
Jennifer Dulski, Office of Regulations and Reports Clearance, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 966-2341. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site, Social Security Online, at
On August 20, 2020, we published a final rule, “Improved Agency Guidance Documents,” in the
On January 20, 2021, the President issued E.O. 13992, “Revocation of Certain Executive Orders Concerning Federal Regulation.”
We are removing from our regulations and reserving 20 CFR part 426, consisting of §§ 426.5 through 426.25. The regulations that we are removing set forth the definition of “guidance document” in E.O. 13891, discuss the nonbinding nature of guidance documents, set forth procedures to request withdrawal or modification of guidance documents, and set forth additional requirements and procedures for significant guidance documents as prescribed by E.O. 13891. In addition, we will remove the website we created to comply with the requirements of E.O. 13891 (
We follow the Administrative Procedure Act (APA) rulemaking procedures in 5 U.S.C. 553 when we develop regulations. Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final rule. Under 5 U.S.C. 553(b)(3)(A), agencies are not required to provide prior notice and opportunity for the public to comment for a rule that is an interpretative rule, a general statement of policy, or a rule of agency organization, procedure, or practice. When we published our final rule, “Improved Agency Guidance Documents,” we explained that it was exempt from the requirement to provide prior notice and opportunity for public
We have consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the criteria for a significant regulatory action under E.O. 12866 and is not subject to OMB review.
We analyzed this final rule in accordance with the principles and criteria established by E.O. 13132, and determined that the final rule will not have sufficient federalism implications to warrant the preparation of a federalism assessment. We also determined that this final rule will not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions.
We certify that this final rule will not have a significant economic impact on a substantial number of small entities, because it affects individuals or States only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.
The rescission of this final rule does not create any new or affect any existing collections and, therefore, does not require Office of Management and Budget approval under the Paperwork Reduction Act.
Guidance, Social Security.
The Commissioner of Social Security, Andrew Saul, having reviewed and approved this document, is delegating the authority to electronically sign this document to Faye I. Lipsky, who is the primary Federal Register Liaison for SSA, for purposes of publication in the
U.S. Agency for International Development (USAID).
Final rule rescission; correction.
The U.S. Agency for International Development is correcting a final rule rescission that was published in the
Effective April 21, 2021.
Jenna Giandoni,
In FR Doc. 2021-07314, which published in the
1. On page 18444, in the third column, in the
2. On page 18445, in the first column, in the second paragraph of the
Coast Guard, Department of Homeland Security (DHS).
Notice of enforcement of regulation.
The Coast Guard will enforce the special local regulations for the annual Opening Day on the San Francisco Bay Boat Parade on April 25, 2021 to provide for the safety of life on navigable waterways in the San Francisco Bay during this event. Our regulation for marine events in Northern California identifies the regulated area for this event in San Francisco, CA. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the regulated area, unless authorized by the Patrol Commander (PATCOM) or other Federal, State, or local law enforcement agencies on scene to assist the Coast Guard in enforcing the regulated area.
The regulations in 33 CFR 100.1103 will be enforced for the Opening Day on San Francisco Bay regulated area listed in item number 2 in Table 1 to § 100.1103 from 11:30 a.m. to 2 p.m. on April 25, 2021.
If you have questions about this notice of enforcement, call or email Petty Officer David Robey, Waterways Management, U.S. Coast Guard; telephone (415) 399-7440, email
The Coast Guard will enforce the special local regulations in 33 CFR 100.1103, Table 1 to § 100.1103, Item number 2 for the Opening Day on San Francisco Bay regulated area from 11:30 a.m. to 2 p.m. on April 25, 2021. This action is being
During the enforcement period, under the provisions of 33 CFR 100.1103(b), if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or other Official Patrol, defined as a Federal, State, or local law enforcement agency on scene to assist the Coast Guard in enforcing the regulated area. During the enforcement period, if you are the operator of a vessel that participates in the marine event within the regulated area, you must follow the parade route determined by the marine event sponsor and comply with directions from the Patrol Commander or other Official Patrol.
In addition to this notice of enforcement in the
Coast Guard, Department of Homeland Security (DHS).
Notice of enforcement of regulation.
The Coast Guard will enforce the special local regulations for the annual Blessing of the Fleet Boat Parade on April 25, 2021 to provide for the safety of life on the navigable waters of Raccoon Strait during this event. Our regulation for marine events in Northern California identifies the regulated area for this event in Raccoon Strait near Tiburon, CA. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the regulated area, unless authorized by the Patrol Commander (PATCOM) or other Federal, State, or local law enforcement agencies on scene to assist the Coast Guard in enforcing the regulated area.
The regulations in 33 CFR 100.1103 will be enforced for the Blessing of the Fleet regulated area listed in item number 1 in Table 1 to § 100.1103 from 8:30 a.m. to 1:30 p.m. on April 25, 2021.
If you have questions about this notice of enforcement, call or email Petty Officer David Robey, Waterways Management, U.S. Coast Guard; telephone (415) 399-7440, email
The Coast Guard will enforce the special local regulation in 33 CFR 100.1103, Table 1 to § 100.1103, item number 1 for the Blessing of the Fleet regulated area from 8:30 a.m. to 1:30 p.m. on April 25, 2021. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within Northern California, Table 1 to § 100.1103, item number 1, specifies the location of the regulated area for the Blessing of the Fleet which will occur in Raccoon Strait in the San Francisco Bay. From 8:30 a.m. to 1:30 p.m. on April 25, 2021 the regulated area will be in effect and is defined as the navigable waters, from surface to bottom, between a line drawn from Bluff Point on the southeastern side of Tiburon Peninsula to Point Campbell on the northern edge of Angel Island, and a line drawn from Peninsula Point on the southern edge of Tiburon Peninsula to Point Stuart on the western edge of Angel Island. This notice of enforcement applies to the entire regulated area.
During the enforcement period, under the provisions of 33 CFR 100.1103(b) if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or other Official Patrol, defined as a Federal, State, or local law enforcement agency on scene to assist the Coast Guard in enforcing the regulated area. During the enforcement period, if you are the operator of a vessel that participates in the regulated area, you must follow the parade route determined by the marine event sponsor and comply with directions from the Patrol Commander or other Official Patrol.
In addition to this notice of enforcement in the
If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice of enforcement, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.
Coast Guard, Department of Homeland Security (DHS).
Temporary interim rule with request for comment.
The Coast Guard is establishing a temporary safety zone for the navigable water within a 500-yard radius of several tugs and barges in the Straits of Mackinac. The safety zone is needed to protect personnel, vessels, and the marine environment from the potential hazards created by the work, inspection, surveying and the removal and replacement of cables for the Straits of Mackinac. Entry of vessels or persons into the zone is prohibited unless specifically authorized by the Captain of the Port Sault Sainte Marie or their designated representative. Due to the lengthy duration of this safety zone, the Coast Guard is accepting and reviewing public comments until May 7, 2021. While this rule is being enforced
This rule is effective without actual notice from April 21, 2021 through September 30, 2021. For the purposes of enforcement, actual notice will be issued from April 20, 2021 through April 21, 2021. Comments and related materials will be accepted and reviewed by the Coast Guard through May 7, 2021.
Submit comments and material online at
If you have questions on this rule, call or email CWO4 Robert A. Gruschow or LT Deaven S. Palenzuela, Sector Sault Sainte Marie Waterways Management Division, U.S. Coast Guard at (906) 253-2462/(906) 635-3223 or email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, 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 at
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
The Coast Guard is issuing this temporary interim rule with an abridged opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details of the specific dates, vessels names, and safety zone distances concerning the safety zones were not finalized within a sufficient time to allow for notice and a subsequent 30-day comment period before work, inspection, surveying and the replacement and the removal of multiple cables. Delaying this rule to allow for a notice and full comment period would be impracticable because it would inhibit the Coast Guard's ability to protect the public from the potential hazards associated with aforementioned operation commencing on April 20, 2021.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sault Sainte Marie (COTP) has determined that potential hazards associated with the work, inspection, and surveying of underwater infrastructure in the Straits of Mackinac starting April 20, 2021 will be a safety concern for anyone within a 500-yard radius of the tugs and barges. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the operation is conducted.
This rule establishes a safety zone from April 20, 2021 to September 30, 2021. The safety zone will cover all navigable waters within 500 yards of the tugs and barges being used to work, inspect, survey and remove/replace cables in the Straits of Mackinac. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the operation is conducted. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size and location of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the Straits of Mackinac. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section VI.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within 500 yards of tugs and barges used to work, inspect, survey and remove/replace cables in the Straits of Mackinac. It is categorically excluded from further review under paragraph L[60(a)] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Before a vessel operator may enter or operate within the safety zones, they must obtain permission from the Captain of the Port, Sault Sainte Marie, or his designated representative via VHF Channel 16 or telephone at (906) 635-3233. Vessel operators given permission to enter or operate in the safety zone must comply with all orders given to them by the Captain of the Port, Sault Sainte Marie, or his designated representative.
(d)
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters within a
This rule is effective without actual notice from 12:01 a.m. until 11:59 p.m. on April 21, 2021. For the purposes of enforcement, actual notice will be used from April 14, 2021 through April 20, 2021.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email the Lieutenant Commander Joe Hart, Incident Management Team, U.S. Coast Guard; telephone 504-628-4177, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. A safety zone is necessary to facilitate search and rescue and salvage operations surrounding a capsized vessel. Immediate action is needed to respond to the potential safety hazards associated with recovery operations. We we must establish this safety zone by April 14, 2021 and and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Marine Safety Unit Houma (COTP) has determined that potential hazards associated with the response operations on April 14, 2021, will be a safety concern for anyone within a
This rule establishes a temporary safety zone from April 14, 2021 through April 21, 2021. The safety zone will cover all navigable waters within half mile radius around position 29-00.000 N, 090-12.000 W in the Gulf of Mexico, near Port Fouchon, LA. The duration of the zone is intended to protect life and property on these navigable waters for the duration of emergency response operations related to the capsized vessel. No vessel or person will be permitted to enter and move within the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Marine Safety Unit Houma. Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67. Persons and vessels permitted to enter or to move within this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative. The COTP or a designated representative will inform the public of the enforcement periods and changes through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the limited scale of the safety zone and the ease of vessel traffic navigating around said zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within a
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67 or by telephone at (504) 365-2200.
(3) Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by COTP or the designated representative.
(d)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule implements the Pacific Halibut Catch Sharing Plan for the International Pacific Halibut Commission's regulatory Area 2A off of Washington, Oregon, and California. In addition, this final rule implements management measures governing the 2021 recreational fisheries that are not implemented through the International Pacific Halibut Commission. These measures include the recreational fishery seasons, allocations, and management measures for Area 2A. These actions are intended to conserve Pacific halibut and provide angler opportunity where available.
This rule is effective on April 20, 2021.
Additional information regarding this action may be obtained by contacting the Sustainable Fisheries Division, NMFS West Coast Region, 1201 NE Lloyd Boulevard, Suite 1100, Portland, OR 97232. For information regarding all halibut fisheries and general regulations not contained in this rule, contact the International Pacific Halibut Commission, 2320 W Commodore Way, Suite 300, Seattle, WA 98199-1287.
Kathryn Blair, phone: 503-231-6858, fax: 503-231-6893, or email:
The Northern Pacific Halibut Act of 1982 (Halibut Act) gives the Secretary of Commerce (Secretary) responsibility for implementing the provisions of the Halibut Convention between the United States and Canada (16 U.S.C. 773-773k). The Halibut Act requires that the Secretary adopt regulations to carry out the purposes and objectives of the Halibut Convention and Halibut Act (16 U.S.C. 773(c)). The Halibut Act also authorizes the regional fishery management councils having authority for a particular geographic area to develop regulations in addition to, but not in conflict with, regulations issued by the International Pacific Halibut Commission (IPHC) to govern the Pacific halibut catch in U.S. Convention waters (16 U.S.C. 773c(c)).
At its January 25-29, 2021 annual meeting, the IPHC recommended an Area 2A catch limit of 1,510,000 pounds (lb) (684.9 metric tons (mt)) for 2021. This catch limit is derived from the Area 2A total constant exploitation yield (TCEY) of 1,650,000 lb (748.4 mt), which includes commercial discards and bycatch estimates calculated using a formula developed by the IPHC. The Area 2A catch limit and commercial fishery allocations are adopted by the IPHC and were published in the
Since 1988, the Council has developed and NMFS has approved annual Catch Sharing Plans that allocate the IPHC regulatory Area 2A Pacific halibut catch limit between treaty Indian and non-Indian harvesters, and among non-Indian commercial and recreational (sport) fisheries. In 1995, the Council recommended, and NMFS approved, a long-term Area 2A Catch Sharing Plan (60 FR 14651; March 20, 1995). NMFS has been approving adjustments to the Area 2A Catch Sharing Plan based on Council recommendations each year to address the changing needs of these fisheries. While the full Catch Sharing Plan is not published in the
This rule approves the Council's 2021 Catch Sharing Plan for IPHC regulatory Area 2A. The 2021 Catch Sharing Plan was developed through the Council's public process. This rule implements recreational Pacific halibut fishery management measures for 2021, which include season opening and closing dates, retention of groundfish species, allowable gear, and opening closed areas that are set in NMFS regulations. Further details of the changes made for the 2021 Catch Sharing Plan are described in the proposed rule and are not repeated here.
As described above, NMFS is adopting recreational fishery management measures, including season dates for the 2021 fishery. The Catch Sharing Plan includes a framework for setting days open for fishing by subarea; under this framework, each state submits final recommended season dates annually to NMFS during the proposed rule comment period. This final rule contains dates for the recreational fisheries (though referred to as “sport” in IPHC documents, “recreational” will be used in this rule) based on the 2021 Catch Sharing Plan as recommended by the Council and the recommended dates submitted by the states during public comment on the proposed rule.
The recreational fishing subareas, subquotas, fishing dates, and daily bag limits are as follows, except as modified under the inseason actions consistent with 50 CFR 300.63(c). All recreational fishing in Area 2A is managed on a “port of landing” basis, whereby any halibut landed into a port counts toward the quota for the area in which that port is located, and the regulations governing the area of landing apply, regardless of the specific area of catch.
The quota for the area in Puget Sound and the U.S. waters in the Strait of Juan de Fuca, east of a line extending from 48°17.30′ N lat., 124°23.70′ W long. north to 48°24.10′ N lat., 124°23.70′ W long., is 78,291 lb (35.5 mt).
(a) The fishing seasons are:
(i) For the area in Puget Sound and the U.S. waters in the Strait of Juan de Fuca, east of a line at approximately 123°49.60′ W long., fishing is open April 22-24, April 29-May 1; May 6-8, 13-15, 20-22, 28-30; June 3-5, 10-12, 17-19, and 24-26, or until there is not sufficient quota for another full day of fishing and the area is closed by the IPHC. Any closure will be announced on the NMFS hotline at (206) 526-6667 or 800-662-9825.
(ii) For the area in U.S. waters in the Strait of Juan de Fuca, approximately between 124°23.70′ W long. and 123°49.60′ W long., fishing is open May 6, 8, 13, 15, 20, 22, 28-30; June 3-5, 10-12, 17-19, 24-26, or until there is not sufficient quota for another full day of fishing and the area is closed by the IPHC. Any closure will be announced on the NMFS hotline at (206) 526-6667 or 800-662-9825.
(b) The daily bag limit is one halibut of any size per day per person.
The quota for landings into ports in the area off the north Washington coast, west of a line at approximately 124°23.70′ W long. and north of the Queets River (47°31.70′ N lat.), is 128,928 lb (58.5 mt).
(a) The fishing seasons are:
(i) Fishing is open May 6, 8, 13, 15, 20, 22, 28, 30; June 3, 5, 10, 12, 17, 19, 24, and 26, or until there is not sufficient quota for another full day of fishing and the area is closed by the IPHC. Any closure will be announced on the NMFS hotline at (206) 526-6667 or 800-662-9825.
(b) The daily bag limit is one halibut of any size per day per person.
(c) Recreational fishing for groundfish and halibut is prohibited within the North Coast Recreational Yelloweye Rockfish Conservation Area (YRCA). It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the North Coast Recreational YRCA. A vessel fishing with recreational gear in the North Coast Recreational YRCA may not be in possession of any halibut. Recreational vessels may transit through the North Coast Recreational YRCA with or without halibut on board. The North Coast Recreational YRCA is a C-shaped area off the northern Washington coast intended to protect yelloweye rockfish. The North Coast Recreational YRCA is defined in groundfish regulations at 50 CFR 660.70(b).
The quota for landings into ports in the area between the Queets River, WA (47°31.70′ N lat.), and Leadbetter Point, WA (46°38.17′ N lat.), is 63,636 lb (28.9 mt).
(a) This subarea is divided between the all-depth fishery (the Washington South coast primary fishery), and the incidental nearshore fishery in the area from 47°31.70′ N lat. south to 46°58.00′ N lat. and east of a boundary line approximating the 30-fathom (fm) (55-meters (m)) depth contour. This area (the Washington South coast, northern nearshore area) is defined by straight lines connecting all of the following points in the order stated as described by the following coordinates:
(1) 47°31.70′ N lat, 124°37.03′ W long;
(2) 47°25.67′ N lat, 124°34.79′ W long;
(3) 47°12.82′ N lat, 124°29.12′ W long;
(4) 46°58.00′ N lat, 124°24.24′ W long.
The primary fishery season dates are May 6, 9, 13, 16, 20, 23, 27; June 17, 20, 24, 27, or until there is not sufficient quota for another full day of fishing and the area is closed by the IPHC. Any closure will be announced on the NMFS hotline at (206) 526-6667 or 800-662-9825. If sufficient quota remains, the fishing season in the nearshore area commences the Saturday subsequent to the closure of the primary fishery and continues seven days per week until 63,636 lb (28.9 mt) is projected to be taken by the two fisheries combined and the fishery is closed by the IPHC or on September 30, whichever is earlier. If the fishery is closed prior to September 30, and there is insufficient quota remaining to reopen the Washington South coast, northern nearshore area for another fishing day, then any remaining quota may be transferred in-season to another Washington coastal subarea by NMFS.
(b) The daily bag limit is one halibut of any size per day per person.
(c) Seaward of the boundary line approximating the 30-fm (55-m) depth contour and during days open to the primary fishery, lingcod may be taken, retained and possessed when allowed by groundfish regulations at 50 CFR 660.360(c).
(d) Recreational fishing for groundfish and halibut is allowed within the South Coast Recreational YRCA and Westport Offshore Recreational YRCA. The South Coast Recreational YRCA is defined at 50 CFR 660.70(e). The Westport Offshore Recreational YRCA is defined at 50 CFR 660.70(f).
The quota for landings into ports in the area between Leadbetter Point, WA (46°38.17′ N lat.), and Cape Falcon, OR (45°46.00′ N lat.), is 18,662 lb (8.5 mt)
(a) This subarea is divided into an all-depth fishery and a nearshore fishery. The nearshore fishery is allocated 500 lb (0.23 mt) of the subarea allocation. The nearshore fishery extends from Leadbetter Point (46°38.17′ N lat., 124°15.88′ W long.) to the Columbia River (46°16.00′ N lat., 124°15.88′ W long.) by connecting the following coordinates in Washington: 46°38.17′ N lat., 124°15.88′ W long. 46°16.00′ N lat., 124°15.88′ W long., and connecting to the boundary line approximating the 40-fm (73-m) depth contour in Oregon. The nearshore fishery opens May 10, and continues on Monday, Tuesday, and Wednesday each week until the nearshore allocation is taken, or on September 30, whichever is earlier. The all-depth fishing season is open May 6, 9, 13, 16, 20, 23, 27; June 3, 6, 10, 13, 17, 20, 24, 27, or until there is not sufficient quota for another full day of fishing and the area is closed by the IPHC, or on September 30, whichever is earlier. Any closure will be announced on the NMFS hotline at (206) 526-6667 or 800-662-9825. Subsequent to this closure, if there is insufficient quota remaining in the Columbia River subarea for another fishing day, then any remaining quota may be transferred inseason to another Washington and/or Oregon subarea by NMFS. Any remaining quota would be transferred to each state in proportion to its contribution.
(b) The daily bag limit is one halibut of any size per day per person.
(c) Pacific Coast groundfish may not be taken and retained, possessed or landed when halibut are on board the vessel, except sablefish, Pacific cod, flatfish species, yellowtail rockfish, widow rockfish, canary rockfish, redstriped rockfish, greenstriped rockfish, silvergray rockfish, chilipepper, bocaccio, blue/deacon rockfish, and lingcod caught north of the Washington-Oregon border (46°16.00′ N lat.) may be retained when allowed by Pacific Coast groundfish regulations, during days open to the all-depth Pacific halibut fishery. Long-leader gear (as defined at 50 CFR 660.351) may be used to retain groundfish during the all-depth Pacific halibut fishery south of the Washington-Oregon border, when allowed by Pacific Coast groundfish regulations.
(d) Taking, retaining, possessing, or landing halibut on groundfish trips is allowed in the nearshore area on days not open to all-depth Pacific halibut fisheries.
The quota for landings into ports in the area off Oregon between Cape Falcon (45°46.00′ N lat.) and Humbug Mountain (42°40.50′ N lat.), is 273,403 lb (124 mt).
(a) The fishing seasons are:
(i) The first season (the “inside 40-fm” fishery) commences May 1, and continues 7 days a week, in the area shoreward of a boundary line approximating the 40-fm (73-m) depth contour, or until the sub-quota for the central Oregon “inside 40-fm” fishery of 32,808 lb (14.9 mt), or any inseason revised subquota is estimated to have been taken and the season is closed by the IPHC, or on October 31, whichever is earlier. The boundary line approximating the 40-fm (73-m) depth contour between 45°46.00′ N lat. and 42°40.50′ N lat. is defined at 50 CFR 660.71(o).
(ii) The second season (spring season), which is for the “all-depth” fishery, is open May 13-15, 20-22; June 3-5, 10-12, 17-19; and July 1-3. The allocation to the all-depth fishery is 172,244 lb (78.1 mt). If sufficient unharvested quota remains for additional fishing
(iii) The third season (summer season), which is for the “all-depth” fishery, will be open August 5-7, 19-21; September 2-4; 16-18, September 30-October 2; October 14-16, 28-30; and will continue until the combined spring season and summer season quotas in the area between Cape Falcon and Humbug Mountain, OR, are estimated to have been taken and the area is closed by the IPHC. NMFS will announce on the NMFS hotline (206) 526-6667 or (800) 662-9825 in July whether the fishery will re-open for the summer season in August. Additional fishing days may be opened if sufficient quota remains after the last day of the first scheduled open period. If, after this date, an amount greater than or equal to 60,000 lb (27.2 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, the fishery may re-open every Thursday, Friday and Saturday, beginning August 5, 6, and 7, and ending when there is insufficient quota remaining, whichever is earlier. If, after September 7, an amount greater than or equal to 30,000 lb (13.6 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, and the fishery is not already open every Thursday, Friday and Saturday, the fishery may re-open every Thursday, Friday and Saturday, beginning September 9, 10, and 11, and ending October 31. After September 7, the bag limit may be increased to two fish of any size per person, per day. NMFS will announce on the NMFS hotline (206) 526-6667 or (800) 662-9825 whether the summer all-depth fishery will be open on such additional fishing days, what days the fishery will be open, and what the bag limit is.
(b) The daily bag limit is one halibut of any size per day per person, unless otherwise specified. NMFS will announce on the NMFS hotline (206) 526-6667 or (800) 662-9825 any bag limit changes.
(c) During days open to all-depth halibut fishing when the groundfish fishery is restricted by depth, when halibut are on board the vessel, no groundfish, except sablefish, Pacific cod, and other species of flatfish (sole, flounder, sanddab), may be taken and retained, possessed or landed, except with long-leader gear (as defined at § 660.351), when allowed by groundfish regulations. During days open to all-depth halibut fishing when the groundfish fishery is open to all depths, any groundfish species permitted under the groundfish regulations may be retained, possessed or landed if halibut are on board the vessel. During days open to nearshore halibut fishing, flatfish species may be taken and retained seaward of the seasonal groundfish depth restrictions if halibut are on board the vessel.
(d) When the all-depth halibut fishery is closed and halibut fishing is permitted only shoreward of a boundary line approximating the 40-fm (73-m) depth contour, halibut possession and retention by vessels operating seaward of a boundary line approximating the 40-fm (73-m) depth contour is prohibited.
(e) Recreational fishing for groundfish and halibut is prohibited within the Stonewall Bank YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the Stonewall Bank YRCA. A vessel fishing in the Stonewall Bank YRCA may not possess any halibut. Recreational vessels may transit through the Stonewall Bank YRCA with or without halibut on board. The Stonewall Bank YRCA is an area off central Oregon, near Stonewall Bank, intended to protect yelloweye rockfish. The Stonewall Bank YRCA is defined at 50 CFR 660.70(g).
The quota for landings into ports in the area south of Humbug Mountain, OR (42°40.50′ N lat.) to the Oregon/California Border (42°00.00′ N lat.) is 8,000 lb (3.6 mt).
(a) The fishing season commences on May 1, and continues 7 days per week until the subquota is taken, or October 31, whichever is earlier.
(b) The daily bag limit is one halibut per person with no size limit.
(c) During days open to the Pacific halibut fishery, when halibut are on board the vessel, no groundfish except sablefish, Pacific cod, and other species of flatfish (sole, flounder, sanddab), may be taken and retained, possessed or landed, except with long-leader gear (as defined at § 660.351) when allowed by groundfish regulations.
The quota for landings into ports south of the Oregon/California Border (42°00.00′ N lat.) and along the California coast is 39,260 lb (17.8 mt).
(a) The fishing season will be open May 1 through November 15, or until the subarea quota is estimated to have been taken and the season is closed by the IPHC, whichever is earlier. NMFS will announce any closure by the IPHC on the NMFS hotline (206) 526-6667 or (800) 662-9825.
(b) The daily bag limit is one halibut of any size per day per person.
NMFS published the proposed rule on February 12, 2021 (86 FR 9312). NMFS accepted public comments on the Council's recommended modifications to the 2021 Area 2A Catch Sharing Plan and the proposed 2021 annual management measures through March 15, 2021. NMFS received two comments from state agencies—the Oregon Department of Fish and Wildlife (ODFW) and the California Department of Fish and Wildlife (CDFW), and two comments from stakeholders.
As described in the response to Comment 1 above, NMFS changed season dates off of Oregon in this final rule.
Regulations governing the U.S. fisheries for Pacific halibut are developed by the International Pacific Halibut Commission (IPHC), the Pacific Fishery Management Council, the North Pacific Fishery Management Council (Council), and the Secretary of Commerce. Section 5 of the Halibut Act (16 U.S.C. 773c) allows the Regional Council having authority for a particular geographical area to develop regulations governing the allocation and catch of halibut in U.S. Convention waters as long as those regulations do not conflict with IPHC regulations. This action is consistent with the Council's authority to allocate halibut catches among fishery participants in the waters in and off Washington, Oregon, and California.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS finds good cause to waive the 30-day delay in the date of effectiveness and make this rule effective on April 20, 2021, in time for the start of recreational Pacific halibut fisheries on April 22, 2021, pursuant to 5 U.S.C. 553(d)(3). The 2021 Catch Sharing Plan provides the framework for the annual management measures and setting subarea allocations based on annual catch limits set by the IPHC. This rule implements 2021 Area 2A subarea allocations as published in the proposed rule (86 FR 9312, February 12, 2021) for the recreational Pacific halibut fishery based on the formulas set in the Catch Sharing Plan and using the 2021 Area 2A catch limit for Pacific halibut set by the IPHC and published by NMFS on March 9, 2021 (86 FR 13475).
This rule relieves multiples restrictions: (1) Providing for the first opening of the recreational fishery subareas on April 22, 2021 for the Washington Puget Sound and the U.S. Convention Waters in the Strait of Juan de Fuca subarea; (2) based on the total Area 2A catch limit, the 2021 recreational fishery subarea allocations implemented in this rule are higher than in 2020, allowing for additional fishing opportunity; and (3) approving the changes to the Catch Sharing Plan to open previously closed areas and allow for retention of certain groundfish species.
Additionally, delaying the effective date of this rule would be contrary to the public interest. The Council's 2021 Catch Sharing Plan approved in this rule includes changes that respond to the needs of the fisheries in each state, including fisheries that begin in late April. A delay in the effectiveness of this rule for 30 days would result in the fisheries not opening on their intended timelines and on the dates the affected public are expecting. The recreational Pacific halibut fisheries have high participation, and some subareas close months before the end of the season due to quota attainment. If the fisheries do not open on their intended timelines, fishing opportunity is lost, potentially causing economic harm to communities at recreational fishing ports. The Council also recommended removing prohibition on fishing within two Rockfish Conservation Areas and allowing anglers fishing for halibut in the Columbia River and Oregon subareas to retain certain groundfish species in order to be consistent with changes implemented in the 2021-2022 groundfish harvest specifications final rule (85 FR 79880; December 11, 2020). This rule is needed for consistency with groundfish regulations, and to provide more angler opportunity by permitting retention of more groundfish species than were previously allowed in regulation.
Therefore, allowing the 2020 Catch Sharing Plan to remain in place would not respond to the needs of the fishery and would be in conflict with the Council's final recommendation for 2021. A delay in effectiveness could cause economic harm to the associated fishing communities by reducing fishing opportunity at the start of the fishing year. As a result of the potential harm to fishing communities that could be caused by delaying the effectiveness of this final rule, NMFS finds good cause to waive the 30-day delay in the date of effectiveness and make this rule effective upon publication in the
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act. The factual basis for the certification was published in the proposed rule and is not repeated here. As a result, a regulatory flexibility analysis was not required and none was prepared.
This rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) submitted by the State of Nebraska on July 16, 2020. This proposed action will amend the SIP to revise title 129 of the Nebraska Administrative Code by removing a portion of the SIP that addresses visible emissions from diesel-powered motor vehicles. Visible emissions from diesel-powered motor vehicles are addressed in the state statute. Therefore, these proposed revisions remove duplicative language that is redundant to the state statute. The proposed revisions do not substantively change any existing statutory or regulatory requirement or impact the stringency of the SIP or air quality nor do they impact the State's ability to attain or maintain the National Ambient Air Quality Standards. The EPA's proposed approval of this rule revision is in accordance with the requirements of the Clean Air Act (CAA).
Comments must be received on or before May 21, 2021.
You may send comments, identified by Docket ID No. EPA-R07-OAR-2021-0244 to
Allie Donohue, Environmental Protection Agency, Region 7 Office, Air Quality Planning Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; telephone number: (913) 551-7986; email address:
Throughout this document “we,” “us,” and “our” refer to the EPA.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2021-0244, at
The EPA is proposing to amend Nebraska's SIP to include revisions to title 129 of the Nebraska Administrative Code. The EPA is proposing to approve revisions to the Nebraska SIP submitted by the State of Nebraska on July 16, 2020. Specifically, the EPA is proposing to amend the Nebraska SIP by removing a portion of the SIP as follows: Title 129. Chapter 39. Visible Emissions from Diesel-powered Motor Vehicles. EPA is proposing approval of these revisions as they do not substantively change any existing statutory or regulatory requirement. These revisions do not impact the stringency of the SIP or air quality.
Nebraska statutes 60-6,363, 60-6,364, 60-6,365, and 60-6,367 continue to provide the state of Nebraska the authority to use smokemeter tests and enforce against excessive opacity from diesel powered motor vehicles.
Title 129, Chapter 39 states, “No person shall operate a diesel-powered motor vehicle on any public street or highway in such a manner that smoke discharged from the exhaust is of a shade or density equal to or darker than that designated as No. 1 on the Ringelmann Chart or an equivalent opacity of twenty percent (20%) for ten (10) consecutive seconds or longer.” Nebraska statute 60-6,365 has the same requirements with the exclusion of the phrase, “public street.” EPA finds that this term does not impact the stringency of the SIP. Title 129. Chapter 39 also states, “A suspected violator may demand that the suspected vehicle be tested by an approved smokemeter prior to a trial on the alleged violation,” which is also listed in Nebraska statute 60-6,367 verbatim. Title 129. Chapter 39 states, “smokemeter tests shall be conducted (a) by or under the supervision of a person or testing facility authorized by the Director to conduct such tests, and (b) by installing an approved smokemeter on the exhaust pipe and operating the suspected vehicle in a manner similar to the manner of operation at the time of the alleged violation.” Nebraska statute 60-
Nebraska statutes 60-6,363, 60-6,364, 60-6,365, and 60-6,367 will continue to provide Nebraska the authority to use smokemeter tests and regulate visible emissions from diesel-powered motor vehicles. The SIP revision being proposed for approval by this action removes a redundant regulation from the SIP and does not have an adverse effect on air quality in Nebraska.
The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice of this SIP revision from September 28, 2019, to November 6, 2019, and held a public hearing on November 7, 2019. In a letter to the state dated November 7, 2019, the EPA stated that the agency “has no comment on the proposed repeal of this regulation.” EPA further recommended that NDEE include a justification that the rule is redundant to state statute. The SIP revision meets the substantive requirements of the CAA, including section 110 and implementing regulations.
The EPA is proposing to amend the Nebraska SIP by approving the State's request to remove Title 129 Section 39. Visible Emissions from Diesel-powered Vehicles. The removal of this portion of the SIP will ensure consistency between state and federally-approved rules. The EPA has determined that these changes will not adversely impact air quality because the regulation duplicates the State's statute, which applies in the same jurisdiction.
The EPA is processing this as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.
In this document, the EPA is proposing to amend regulatory text that includes incorporation by reference. As described in the proposed amendments to 40 CFR part 52 set forth below, the EPA is proposing to remove provisions of the EPA-Approved Nebraska Regulations from the Nebraska State Implementation Plan, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; 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).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter.
For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 52 as set forth below:
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Mojave Desert Air Quality Management District (MDAQMD or “District”) portion of the California State Implementation Plan (SIP). This revision concerns the regulation of emissions of volatile organic compounds (VOCs) from wood products coating operations. We are proposing to approve a local rule to regulate these emission sources under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.
Comments must be received on or before May 21, 2021.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2021-0222 at
Robert Schwartz, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3286 or by email at
Throughout this document, “we,” “us” and “our” refer to the EPA.
Table 1 lists the rule addressed by this proposal with the date that it was amended by the local air agency and submitted by the California Air Resources Board (CARB).
On March 12, 2021, the EPA determined that the submittal for MDAQMD Rule 1114 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
We approved an earlier version of Rule 1114 into the SIP on July 2, 2019 (84 FR 31682). The MDAQMD adopted revisions to the SIP-approved version on August 24, 2020, and CARB submitted them to us on November 18, 2020. If we take final action to approve the August 24, 2020 version of Rule 1114, this version will replace the previously approved version of the rule in the SIP.
Emissions of VOCs contribute to the production of ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Rule 1114 establishes VOC content limits for coatings and adhesives used on new wood surface coated room furnishings (“products”), and those used for refinishing, repairing, preserving or restoring wood products. It also establishes requirements for coatings application methods, surface preparation and cleanup, add-on control systems, and work practices. The District revised Rule 1114 by reducing the VOC content limit for high solids stains, reducing the allowable volume of coatings and/or strippers used in order to qualify for an exemption to the rule, and incorporating work practice standards and implementation plans consistent with the EPA's Control Techniques Guideline (CTG) for this source category.
Rules in the SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).
Generally, SIP rules must require reasonably available control technology (RACT) for each category of sources covered by a CTG document as well as each major source of VOCs in ozone nonattainment areas classified as Moderate or above (see CAA section 182(b)(2)). The MDAQMD regulates an ozone nonattainment area classified as a Severe-15 nonattainment area for the 2008 8-hour ozone national ambient air quality standard (NAAQS), and as a Severe-15 nonattainment area for the 2015 8-hour ozone NAAQS (40 CFR 81.305). Therefore, this rule must implement RACT.
Guidance and policy documents that we used to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:
1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).
3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
4. “Control Techniques Guidelines: Control of Volatile Organic Compound Emissions from Wood Furniture Manufacturing Operations.” EPA 453/R-96-007, April 1996.
This rule meets CAA requirements and is consistent with relevant guidance regarding enforceability, RACT, and SIP revisions. The TSD has more information on our evaluation.
As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because it fulfills all relevant requirements. We will accept comments from the public on this proposal until May 21, 2021. If we take final action to approve the submitted rule, our final action will incorporate this rule into the federally enforceable SIP.
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the MDAQMD rule described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through
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, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Sacramento Metropolitan Air Quality Management District (SMAQMD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of oxides of nitrogen (NO
Comments must be received on or before May 21, 2021.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2020-0414 at
Robert Schwartz, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3286 or by email at
Throughout this document, “we,” “us” and “our” refer to the EPA.
A. How is the EPA evaluating the rule?
B. Does the rule meet the evaluation criteria?
C. The EPA's Recommendations To Further Improve the Rule
D. Public Comment and Proposed Action
Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On July 23, 2019, the submittal for SMAQMD Rule 414 was deemed by operation of law to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
We approved an earlier version of Rule 414 into the SIP on April 5, 2011 (76 FR 67366). The SMAQMD adopted revisions to the SIP-approved version on October 25, 2018, and CARB submitted them to us on January 23, 2019.
Emissions of NO
Rules in the SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).
Generally, SIP rules must require reasonably available control technology (RACT) for each major source of NO
1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).
3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region IX, August 21, 2001 (the Little Bluebook).
4. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO
5. “Alternative Control Techniques Document—NO
6. “Alternative Control Techniques Document—NO
This rule meets CAA requirements and is consistent with relevant guidance regarding enforceability, RACM, and SIP revisions. The TSD has more information on our evaluation.
The TSD includes recommendations for the next time the local agency modifies the rule.
As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because it fulfills all relevant requirements. We will accept comments from the public on this proposal until May 21, 2021. If we take final action to approve the submitted rule, our final action will incorporate this rule into the federally enforceable SIP.
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the SMAQMD rule described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through
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, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Federal Communications Commission.
Petitions for Reconsideration.
Petitions for Reconsideration (Petitions) have been filed in the Commission's rulemaking proceeding by Tom Stroup, on behalf of the Satellite Industry Association, Joseph A. Goldes, on behalf of Iridium Constellation LLC, and David Goldman, on behalf of Space Exploration Technologies Corp.
Oppositions to the Petitions must be filed on or before May 6, 2021. Replies to an opposition must be filed on or before May 17, 2021.
Federal Communications Commission, 45 L Street NE, Washington, DC 20554.
Clay DeCell, International Bureau, (202) 418-0803 or
This is a summary of the Commission's document, Report No. 3171, released April 12, 2021. The full text of the Petitions can be accessed online via the Commission's Electronic Comment Filing System at:
Federal Communications Commission.
Proposed rule; correction.
The Federal Communications Commission published a document in the
April 21, 2021.
Shaun Maher, Media Bureau, at (202) 418-2324 or
In FR Doc. 2021-07442, in the
Federal Communications Commission, Office of the Secretary, 45 L Street NE, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for petitioner as follows: Joan Stewart, Esq., Wiley Rein LLP, 1776 K Street NW, Washington, DC 20006.
Indian Health Service (IHS), HHS.
Proposed rule; reopening and extension of comment period.
The Indian Health Service (IHS) is reopening and extending the comment period for the proposed rule entitled “Acquisition Regulations; Buy Indian Act; Procedures for Contracting.” This action is being taken in response to requests from stakeholders to extend the comment period to allow additional time for interested persons to submit comments on the proposed rule.
IHS is reopening and extending the comment period on the proposed rule published November 10, 2020 (85 FR 71596) for 60 days. Submit either electronic or written comments on the proposed rule by June 21, 2021.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before June 21, 2021. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
You may send comments identified by docket number OI-2012-0005 using any of the following methods:
Carl Mitchell, Director, Division of Regulatory Policy Coordination (DRPC), Office of Management Services (OMS), Indian Health Service, 5600 Fishers Lane, Mail Stop 09E70, Rockville, MD 20857.
Tiffani Redding, Director, Office of Recipient Integrity Coordination (ORIC), Department of Health and Human Services, Office of the Assistant Secretary for Financial Resources (ASFR), Room 533H, Hubert H. Humphrey Building, 200 Independence Avenue SW, Washington, DC 20201.
For technical questions concerning this proposed rule contact:
Carl Mitchell, Director, Division of Regulatory Policy Coordination (DRPC), Office of Management Services, Indian Health Service, 301-443-6384,
In the
Comments have been received from tribes and tribal entities requesting an extension of the comment period due to the encompassing of the holiday season during the original comment period, as well as the disproportionately high impact of the pandemic on Indian Country. Both of these events have delayed stakeholders from being able to perform a complete and full review of the proposed rule and provide comments within the initial 60-day comment period.
IHS has concluded that it is reasonable to reopen and extend the comment period for an additional 60
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council). If implemented, this proposed rule would modify catch limits in the Gulf of Mexico (Gulf) exclusive economic zone (EEZ) for gray triggerfish. The purpose of this proposed rule and the framework action is to modify the catch limits, as applicable, consistent with the most recent interim analysis for gray triggerfish and to achieve optimum yield (OY) for the stock.
Written comments must be received on or before May 21, 2021.
You may submit comments on the proposed rule, identified by “NOAA-NMFS-2021-0030” by any of the following methods:
•
•
Electronic copies of the framework action, which includes an environmental assessment, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis, may be obtained from the Southeast Regional Office website at
Kelli O'Donnell, Southeast Regional Office, NMFS, telephone: 727-824-5305, email:
The Gulf reef fish fishery, which includes gray triggerfish, is managed under the FMP. The FMP was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Steven Act).
The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and to achieve, on a continuing basis, the OY from federally managed fish stocks to ensure that fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.
Gray triggerfish in the Gulf EEZ are managed using both commercial and recreational sector measures with each sector having its own annual catch limit (ACL) and annual catch target (ACT). The sector allocation of the stock ACL, which equals the acceptable biological catch (ABC), is 21 percent commercial and 79 percent recreational and was implemented in 2008 through Amendment 30A to the FMP (73 FR 38139; July 3, 2008). Inseason accountability measures (AMs) for gray triggerfish specify that if commercial and/or recreational landings meet or are projected to meet the respective sector's ACT, that sector will close for the remainder of the fishing year. For the commercial sector, the post-season AM specifies that if the commercial ACL is exceeded despite the quota closure, then the following fishing year's commercial ACL and ACT (commercial quota) will be reduced by the amount of the prior-year's commercial ACL overage. For the recreational sector, if the recreational ACL is exceeded and gray triggerfish are overfished then in the following fishing year the recreational ACL and ACT would be reduced by the amount of the ACL overage in the prior fishing year. The current gray triggerfish ACLs, ACTs (set at 5 percent and 10 percent less than the commercial and recreational sector ACLs, respectively), and inseason AMs for both sectors and the post season AM for the recreational sector, were established in 2013, through Amendment 37 to the FMP (78 FR 27084; May 9, 2013). The postseason AM for the commercial sector was established in 2008, through Amendment 30A to the FMP (73 FR 38139).
The most recent Southeast Data, Assessment, and Review (SEDAR) stock assessment for gray triggerfish was completed and reviewed by the Council's Scientific and Statistical Committee (SSC) in October 2015 (SEDAR 43). SEDAR 43 indicated that the gray triggerfish stock was not experiencing overfishing but remained overfished and would not be rebuilt by the end of 2017 as previously projected. As a result of SEDAR 43, the Council's SSC made recommendations for an increased overfishing limit (OFL) based on a fixed maximum fishing mortality threshold, which is independent of rebuilding, and ABCs based on an 8, 9, or 10-year rebuilding timeline. Because of the stock not rebuilding as anticipated, the Council decided not to change the ABC, sector ACLs, and sector ACTs set by Amendment 37 but to change the rebuilding timeline to rebuild the stock by 2025. Amendment 46 implicitly adopted the SSC's recommendations for an increased OFL by including alternatives with an ABC that was higher than the
Between 2012 and 2019, the commercial sector has exceeded its ACL of 64,100 lb (29,075 kg), round weight, two times, in both 2012 and 2018. During that same time frame, the recreational sector has exceeded its ACL of 241,200 lb (109,406 kg), round weight, five times, in 2012, 2013, 2016, 2018, and 2019.
At its September 2020 meeting, the Council's SSC accepted a 2020 gray triggerfish interim analysis conducted by the NMFS Southeast Fisheries Science Center (SEFSC). Unlike full SEDAR stock assessments, interim analyses are designed to occur between regular SEDAR assessments to determine trends in stock condition and project future catch advice. While interim analyses take less time to complete, they cannot be used to determine if a stock is making progress towards rebuilding. Based on the interim analysis, abundance trends of the Gulf gray triggerfish stock suggest an increase in biomass that could support additional removals. The Council's SSC determined the interim analysis was suitable for providing ABC catch advice through 2023. From the interim analysis, the Council's SSC recommended the gray triggerfish stock ABC be increased to 456,900 lb (207,246 kg), round weight, for 2021 and subsequent fishing years, with the request that another interim analysis be completed in 2023. The Council's SSC previously recommended an increased OFL (1,220,000 lb (553,383 kg), round weight) that was implicitly adopted by Amendment 46 and was not examined by this interim analysis.
In January 2021, the Council took final action on this framework action, consistent with the most recent interim analysis for gray triggerfish, and recommendations from the Council's SSC, the SEFSC, and the Council's Reef Fish Advisory Panel (Reef Fish AP) to increase the commercial and recreational catch limits for Gulf gray triggerfish, in order to achieve OY consistent with the requirements of the Magnuson-Stevens Act.
This proposed rule would revise the commercial and recreational ACLs and ACTs consistent with the interim analysis and the Council's SSC, SEFSC, and the Council's Reef Fish AP recommendations.
If implemented, this proposed rule would increase the Gulf gray triggerfish commercial ACL from 64,100 lb (29,075 kg), round weight, to 95,949 lb (43,522 kg), round weight, for the 2021, and subsequent fishing years based on the current ACL sector allocation of 21 percent commercial. To determine the new ACT, the Council used its ACL/ACT control rule to determine the buffer to be applied to the commercial ACL to account for updated information. Application of the control rule indicated that an 8 percent buffer is appropriate between the commercial ACL and ACT. This is an increase from the current buffer of 5 percent. Using a more recent time series, the control rule yielded a larger buffer due to the number of times sector landings exceeded the commercial ACL during the time series, current stock status (the stock is rebuilding), and the precision of landings data. The 8 percent buffer applied to the proposed commercial ACL, revises the commercial ACT (commercial quota) from 60,900 lb (27,624 kg), round weight to 88,273 lb (40,040 kg), round weight, for the 2021, and subsequent fishing years. The increased buffer between the commercial ACL and ACT is expected to reduce the risk of the commercial sector exceeding its ACL as well as reduce the likelihood of overfishing the gray triggerfish stock. NMFS notes that the commercial sector has never exceeded the commercial ACL that is proposed in this rule.
If implemented, this proposed rule would increase the Gulf gray triggerfish recreational ACL from 241,200 lb (109,406 kg), round weight, to 360,951 lb (163,725 kg), round weight, for the 2021, and subsequent fishing years based on the ACL sector allocation of 79 percent recreational. To determine the new recreational ACT, the ACL/ACT control rule was applied to determine the buffer using updated information. The control rule yielded a 24 percent buffer between the recreational ACL and ACT. This is an increase from the current 10 percent buffer. The reason for the buffer increase was the result of past ACL overages, the stock is rebuilding, a more recent time series being applied, and the precision of landings data. When the buffer is applied to the proposed recreational ACL, the ACT would be increased from 217,100 lb (98,475 kg), round weight, to 274,323 lb (124,431 kg), round weight, for the 2021, and subsequent fishing years.
NMFS notes that recreational landings in the 2013, 2016, and 2018 fishing years, have exceeded the recreational ACL proposed in this rule. The increased buffers between the recreational ACL and ACT are expected to reduce the risk of the recreational sector exceeding its ACL.
In addition to the other measures contained in this proposed rule, the framework action would also revise the Gulf gray triggerfish stock ABC. As a result of the gray triggerfish interim analysis, and the recommendation of the Council's SSC, the framework action would increase the Gulf gray triggerfish stock ABC from 305,300 lb (138,482 kg), round weight, to 456,900 lb (207,246 kg), round weight. The stock ACL would remain equal to the stock ABC. A buffer between the stock ABC and ACL was not recommended by the Council's Reef Fish AP as a result of wanting to retain the management approach currently in use for gray triggerfish by the Council of setting the stock ACL equal to the ABC. In addition, the increased ABC is 37.5 percent of the OFL (1,220,000 lb (553,383 kg), round weight). This large difference between the ABC and OFL reduces the risk of overfishing of the gray triggerfish stock.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the framework action, the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination follows.
A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.
This proposed rule would apply to all federally-permitted commercial vessels and recreational anglers that fish for or harvest gray triggerfish in Federal waters of the Gulf. It would not directly apply to or regulate charter vessels and headboats (for-hire vessels). For-hire vessels sell fishing services to recreational anglers. The proposed changes to the gray triggerfish management measures would not directly alter the services sold by these vessels. Any change in demand for these fishing services, and associated economic effects, as a result of this proposed rule would be a consequence of a behavioral change by anglers, secondary to any direct effect on anglers and, therefore, an indirect effect of the proposed rule. Because the effects on for-hire vessels would be indirect, they
As of December 8, 2020, there were 831 vessels with Federal limited access valid or renewable Gulf reef fish permits, 62 of which had longline endorsements. On average from 2015 through 2019, there were 263 federally permitted commercial vessels each year with reported landings of gray triggerfish in the Gulf. Their average annual vessel-level gross revenue from all species for 2015 through 2019 was approximately $158,000 (2019 dollars) and gray triggerfish accounted for less than 0.3 percent of this revenue. The maximum annual revenue from all species reported by a single one of the commercial vessels that landed Gulf gray triggerfish from 2015 through 2019 was approximately $2.37 million (2019 dollars).
For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. All of the commercial fishing businesses directly regulated by this proposed rule are believed to be small entities based on the NMFS size standard. No other small entities that would be directly affected by this rule have been identified.
This proposed rule would modify the commercial and recreational ACLs and ACTs for gray triggerfish consistent with the most recent interim analysis for gray triggerfish, and recommendations from the Council's SSC, the SEFSC, and the Council's Reef Fish AP. Under the proposed rule, the commercial ACT would increase by 27,373 lb (12,416 kg), round weight, which if harvested in full, would correspond to an estimated increase in annual ex-vessel revenue of $56,115 (2019 dollars). Divided by the average number of commercial vessels with reported landings of gray triggerfish from 2015 through 2019, this would be an annual increase of approximately $213 per vessel. Economic benefits to each vessel may vary based on individual fishing practices. However, such distributional effects cannot be quantified with available data. If annual commercial landings are less than the proposed new ACT, the positive economic effects associated with this rule would be reduced accordingly.
The information provided above supports a determination that this proposed rule would not have a significant adverse economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.
No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
Annual catch limit, Fisheries, Fishing, Gray triggerfish, Gulf, Quota, Reef fish.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
16 U.S.C. 1801
(a) * * *
(1) * * *
(vi) Gray triggerfish—88,273 lb (40,040 kg), round weight.
(b) * * *
(1) * * * The commercial ACL is 95,949 lb (43,522 kg), round weight.
(2) * * *
(iii) The recreational ACL for gray triggerfish is 360,951 lb (163,725 kg), round weight. The recreational ACT for gray triggerfish is 274,323 lb (124,431 kg), round weight.
Agricultural Marketing Service, USDA.
Notice; request for public comments.
On February 24, 2021, President Biden issued an Executive Order on “America's Supply Chains,” which directs several Federal agency actions to secure and strengthen America's supply chains. One of these directions is for the Secretary of Agriculture (the Secretary) to submit, within one year, a report to the President that assesses the supply chains for the production of agricultural commodities and food products. This notice requests comments and information from the public to assist the U.S. Department of Agriculture (USDA) in preparing the report required by the Executive Order. Through this notice, USDA is also requesting public comment to inform our thinking regarding how stimulus relief programs and spending related to food supply chain resilience as authorized by the Consolidated Appropriations Act, 2021 (CAA), and the American Rescue Plan Act of 2021 (ARPA) can help to increase durability and resilience within the U.S. food supply.
Comments must be received by May 21, 2021.
All written comments in response to this notice should be posted online at
Dr. Melissa R. Bailey, Agricultural Marketing Service, at (202) 205-9356; or by email at
On February 24, 2021, President Biden issued Executive Order 14017, “America's Supply Chains” (86 FR 11849) (E.O. 14017). E.O. 14017 focuses on the need for resilient, diverse, and secure supply chains to ensure U.S. economic prosperity and national security. Such supply chains are needed to address conditions that can reduce critical manufacturing capacity and the availability and integrity of critical goods, products, and services. In relevant part, E.O. 14017 directs that, within one year, the Secretary shall submit a report to the President, through the Assistant to the President for National Security Affairs (APNSA) and the Assistant to the President for Economic Policy (APEP), on the supply chains for the production of agricultural commodities and food products. This notice requests comments and information from the public to assist USDA in preparing the report required by E.O. 14017. Further, USDA will use public comments received through this notice to inform our thinking regarding how stimulus relief programs and spending related to food supply chain resilience as authorized by the CAA and the ARPA can help to increase durability and resilience within the U.S. food supply. We are particularly interested in comments addressing local and regional food systems, creating new market opportunities (including for value-added agriculture and value-added products), facilitating fair and competitive markets (including traceability and supply chain transparency), advancing efforts to transform the food system, meeting the needs of the agricultural workforce, supporting and promoting consumers' nutrition security, particularly for low-income populations, and supporting the needs of socially disadvantaged and small to mid-sized producers and processors.
In developing this report, the Secretary will consult with the heads of appropriate agencies, and will be advised by all relevant components of USDA, including but not limited to the Office of the Chief Economist, Office of Homeland Security, Agricultural Marketing Service, Animal and Plant Health Inspection Service, Food Safety and Inspection Service, Agricultural Research Service, Economic Research Service, National Institute of Food and Agriculture, Rural Development, Farm Service Agency, Risk Management Agency, Natural Resources Conservation Service, Food and Nutrition Service, and Foreign Agricultural Service.
USDA is particularly interested in comments and information directed to the policy objectives listed in E.O. 14017 as they affect agricultural and food products supply chains, including but not limited to the following elements:
(i) The critical goods and materials underlying agricultural and food product supply chains. Under section 6(b) of E.O. 14017, “critical goods and materials” means goods and raw materials currently defined under statute or regulation as “critical” materials, technologies, or infrastructure;
(ii) other essential goods and materials underlying agricultural and food product supply chains, including digital products, and infrastructure. Under section 6(d) of E.O. 14017, “other essential goods and materials” means those that are essential to national and economic security, emergency preparedness, or to advance the policy set forth in section 1 of E.O. 14017, but not included within the definition of “critical goods and materials.” USDA also will consider “other essential goods and materials” relative to nutrition security given its related importance to national and economic security. USDA is particularly interested in comments on the following goods and materials pertaining to agricultural and food supply chain resilience including, but not limited to: Seed, fertilizer, pesticides, livestock/animal health, feed and feed additives, plant health, soil
(iii) the manufacturing or other capabilities necessary to produce the materials identified in subsections (i) and (ii) of this section, including emerging capabilities. USDA is particularly interested in comments on the processing and distribution, capacity, and access issues associated with food production across all agricultural commodities, the varying scales at which processing is available (including availability for small to mid-size producers), the geographic distribution of such processing (
(iv) the defense, intelligence, cyber, homeland security, health, climate, environmental, natural, market, economic, geopolitical, human-rights or forced-labor risks or other contingencies that may disrupt, strain, compromise, or eliminate the supply chain—including risks posed by supply chains' reliance on digital products that may be vulnerable to failures or exploitation, and risks resulting from the elimination of, or failure to develop domestically, the capabilities identified in subsection (iii) of this section—and that are sufficiently likely to arise so as to require reasonable preparation for their occurrence;
(v) the resilience and capacity of American manufacturing supply chains, including food processing (
(A) The manufacturing or other needed capacities of the United States, including the ability to modernize to meet future needs, including food processing (such as meat, poultry, and seafood processing) and distribution;
(B) gaps in domestic manufacturing capabilities, including nonexistent, extinct, threatened, or single-point-of-failure capabilities;
(C) supply chains with a single point of failure, single or dual suppliers, or limited resilience, especially for subcontractors, as defined by section 44.101 of title 48, Code of Federal Regulations (Federal Acquisition Regulation). USDA is particularly interested in comments related to the role of market concentration and consolidation in agricultural sectors and how it affects food system resilience, including potential system failures in the face of supply chain disruptions;
(D) the location and geographic distribution of key manufacturing and production assets, with any significant risks identified in subsection (iv) of this section posed by the assets' physical location or the distribution of these facilities. USDA is interested in comments on the risks associated with the current geographic distribution and diversification of where U.S. crops and livestock are grown/raised, processed, and marketed;
(E) exclusive or dominant supply of critical goods and materials and other essential goods and materials, as identified in subsections (i) and (ii) of this section, by or through nations that are, or are likely to become, unfriendly or unstable;
(F) the availability of substitutes or alternative sources for critical goods and materials and other essential goods and materials, as identified in subsections (i) and (ii) of this section. For example, USDA encourages commenters to consider agricultural products that could be domestically grown but are not practically available today for various reasons, and to describe whether and how such products (or their alternatives) could be made available through supply chain resilience efforts;
(G) current domestic education and manufacturing workforce skills for the relevant sector and identified gaps, opportunities, and potential best practices in meeting the future workforce needs for the relevant sector;
(H) the need for research and development capacity to sustain leadership in the development of critical goods and materials and other essential goods and materials, as identified in subsections (i) and (ii) of this section. USDA is particularly interested in comments related to education, technical assistance, capacity building, organizational development, and support necessary for success in U.S. agriculture and food production, processing, distribution, and marketing, including how to best target support for socially disadvantaged producers and processors, tribal communities, small businesses, beginning farmers and ranchers, and other key stakeholder groups;
(I) the role of transportation systems in supporting existing supply chains and risks associated with those transportation systems; and
(J) the risks posed by climate change to the availability, production, or transportation of critical goods and materials and other essential goods and materials, as identified in subsections (i) and (ii) of this section. Given the risks posed, USDA is particularly interested in the potential to retool, reengineer, or develop new capacity that would address the risks, improve efficiency, and have a climate benefit due to lower energy use, less food waste, or hasten capture of by-products and co-products (among other benefits).
(vi) allied and partner actions, including whether United States allies and partners have also identified and prioritized the critical goods and materials and other essential goods and materials identified in subsections (i) and (ii) of this section, and possible avenues for international engagement;
(vii) the primary causes of risks for any aspect of the agricultural and food production supply chains assessed as vulnerable pursuant to subsection (v) of this section;
(viii) a prioritization of the critical goods and materials and other essential goods and materials, including digital products, identified in subsections (i) and (ii) of this section for the purpose of identifying options and policy recommendations. The prioritization shall be based on statutory or regulatory requirements; importance to national, economic, and nutrition security, emergency preparedness, and the policy set forth in section 1 of E.O. 14017;
(ix) specific policy recommendations important to transforming the food system and increasing reliance in the supply chain for the sector. Such recommendations may include sustainably reshoring supply chains and developing domestic supplies, cooperating with allies and partners to identify alternative supply chains, building redundancy into domestic supply chains, ensuring and enlarging stockpiles, developing workforce capabilities, enhancing access to
(x) any executive, legislative, regulatory, and policy changes and any other actions to strengthen the capabilities identified in subsection (iii) of this section, and to prevent, avoid, or prepare for any of the contingencies identified in subsection (iv) of this section; and
(xi) proposals for improving the Government-wide effort to strengthen supply chains, including proposals for coordinating actions with ongoing efforts that could be considered duplicative of the work of E.O. 14017 or with existing Government mechanisms that could be used to implement E.O. 14017 in a more effective manner.
USDA encourages commenters, when addressing the elements above, to structure their comments using the same text as identifiers for the areas of inquiry to which their comments respond. This would assist USDA in more easily reviewing and summarizing the comments received in response to these specific comment areas. For example, a commenter submitting comments responsive to “(i) critical and essential goods and materials underlying agricultural and food product supply chains” would use that same text as a heading in the public comment followed by the commenter's specific comments in this area.
The
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a revision of a currently approved collection for the School Meals Operations (SMO) Study (OMB control number 0584-0607, expiration date 08/31/2022) with updated survey instruments for school year (SY) 2021-2022. This study will collect data from State agencies and public school food authorities (SFAs), including disaggregated administrative data and data on the continued use and effectiveness of the CN COVID-19 waivers.
Written comments must be received on or before June 21, 2021.
Comments may be sent to: Holly Figueroa, Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Pl, 5th floor, Alexandria, VA 22314. Comments may also be submitted via fax to the attention of Holly Figueroa at 703-305-2576 or via email to
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Holly Figueroa at
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The SMO Study is a revision of the previously approved Child Nutrition Program Operations Study II (CN-OPS II, OMB control number 0584-0607). It is designed to collect timely data on policy, administrative, and operational issues in the school-based CN Programs, which contributes to budget preparation, development and implementation of program policy and regulations, and identification of areas for technical assistance and training. Because the COVID-19 pandemic changed the way that school meal programs operated for SY 2020-2021, with other CN programs such as the Child and Adult Care Food Program and the Summer Food Service Program being used in place of or in combination with the National School Lunch and School Breakfast Programs (NSLP and SBP) to provide meals to students, the SMO Study will collect administrative and web survey data from States on each of these programs. Specifically, this study will help FNS obtain:
1. General descriptive data on the characteristics of CN Programs to inform the budget process and answer questions about topics of current policy interest;
2. Data on program operations to identify potential topics for training and technical assistance for SFAs and State Agencies (SAs) responsible for administering the CN programs;
3. Administrative data to identify program trends and predictors;
4. Information on the use and effectiveness of the CN COVID-19 waivers, which will be used to satisfy States' reporting requirements on these waivers under FFCRA.
The activities to be conducted subject to this notice include:
The first year of the SMO Study, which sought clearance for data collection in SY 2020-2021, was cleared by the Office of Management and Budget on March 4, 2021 (School Meals Operations Study: State Agency COVID-19 Child Nutrition Waivers Evaluation, OMB control number 0584-0607, expiration date 08/31/2022). The Year 1 collection only included the state-level data collection components (web survey and administrative data collection) because it was repurposed to meet States' statutory reporting requirements for the nationwide CN COVID-19 waivers by gathering information on the use and effectiveness of the waivers from March-September 2020. This notice covers the second iteration of the SMO Study, which intends to collect data in SY 2021-2022 from both States and public SFAs and in SY 2022-23 from States only. The administrative data collection components subject to this notice will cover FY 2021 (October 2020-September 2021) and FY 2022 (October 2021-September 2022), which correspond roughly to SYs 2020-21 and 2021-22, respectively, while the web surveys will ask about program operations and the use and impacts of the CN COVID-19 waivers during SYs 2020-2021 and 2021-2022. The State-level surveys and administrative data collections will be used to satisfy States' reporting requirements on the CN COVID-19 nationwide waivers pursuant to the FFCRA.
Personally identifiable information (PII) will not be used to retrieve survey records or data.
Economic Development Administration, U.S. Department of Commerce.
Notice and opportunity for public comment.
The Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of the firms contributed importantly to the total or partial separation of the firms' workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. These petitions are received pursuant to section 251 of the Trade Act of 1974, as amended.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.8 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the City of San Jose, grantee of FTZ 18, requesting an expansion of Subzone 18F on behalf of Lam Research Corporation in Newark, California. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on April 14, 2021.
Subzone 18F consists of the following sites: Site 1 (29.28 acres)—4650 Cushing Parkway, Fremont, Alameda County; Site 4 (14.82 acres)—1 and 101 Portola Avenue, Livermore, Alameda County; Site 5 (7.3 acres)—7364 Marathon Drive and 7150 Patterson Pass Road, Unit G, Livermore, Alameda County; Site 7 (0.91 acres)—6757 Las Positas Road, Livermore, Alameda County; Site 8 (0.44 acres)—7888 Marathon, Drive, Livermore, Alameda County; Site 9 (2.17 acres)—41707 Christy Street, Fremont, Alameda County; Site 12 (0.98 acres)—7650 Marathon Drive, Livermore, Alameda County; Site 13 (3.49 acres)—6551 West Schulte Road, Tracy, San Joaquin County; Site 14 (8.56 acres)—1201 Voyager Street, Livermore, Alameda County; Site 15 (2.77 acres)—20427 Corsair Boulevard, Hayward, Alameda County; and Site 16 (3.62 acres)—4405 Cushing Parkway, Fremont, Alameda County. The applicant is now requesting authority to expand the subzone to include an additional site (6.2 acres) located at 6753 Mowry Avenue, Newark, Alameda County, which would be designated as Site 17. The expanded subzone would be subject to the existing activation limit of FTZ 18.
In accordance with the FTZ Board's regulations, Qahira El-Amin of the FTZ Staff is designated examiner to review the application and make recommendations to the FTZ Board.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary and sent to:
A copy of the application will be available for public inspection in the “Reading Room” section of the FTZ Board's website, which is accessible via
For further information, contact Qahira El-Amin at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative reviews of the antidumping duty (AD) and countervailing duty (CVD) orders on polyester textured yarn from India for the periods of review (POR) July 1, 2019, through December 31, 2020 (AD) and May 3, 2019, through December 31, 2020 (CVD), based on the timely withdrawal of the requests for review.
Applicable April 21, 2021.
Samantha Kinney (AD) or Janae Martin (CVD), AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2285 or (202) 482-0238, respectively.
On January 5, 2021, Commerce published in the
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested a review withdraws its request within 90 days of the date of publication of the notice of initiation. As stated above, Sanathan withdrew its requests for administrative reviews by the established 90-day deadline and there were no other requests for review. As a result, Commerce is rescinding these reviews in their entirety, in accordance with 19 CFR 351.213(d)(1).
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping and countervailing duties on all appropriate entries at rates equal to the cash deposit of estimated antidumping and countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, during the periods July 1, 2019, through December 31, 2020 (AD), and May 3, 2019, through December 31, 2020 (CVD), in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue assessment instructions to CBP no earlier than 35 days after publication of this notice in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping and countervailing duties occurred and the subsequent assessment of doubled antidumping and countervailing duties.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(l) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On January 29, 2021, the U.S. Court of International Trade (CIT) issued its final judgment in
Applicable February 8, 2021.
Toni Page, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1398.
On March 16, 2018, Commerce published its
Yongtai Group appealed Commerce's
In its final remand redetermination, issued in March 2020, Commerce determined, after reconsidering the record evidence submitted by Yongtai Group in its separate rate application and in the Yongtai Group Remand SQR, that there was sufficient information on the record to find Yongtai Group to be the successor-in-interest to Yongtai Chemical and grant separate rate status to Yongtai Chemical.
In its decision in
Because there is now a final court judgment, Commerce is amending its
Commerce will issue revised cash deposit instructions to U.S. Customs and Border Protection (CBP).
Previously, the CIT enjoined Commerce from liquidating entries that were: (1) Exported by Shandong Yongtai Chemical Co., Ltd.; (2) the subject of the United States Department of Commerce's final determination in certain passenger vehicle and light truck tires from the PRC, 83 FR 11,690 (Mar. 16, 2018); (3) entered, or withdrawn from warehouse for consumption, on or after: (a) January 27, 2015, up to and including July 25, 2015; and (b) August 6, 2015, up to and including July 31, 2016. Because the CIT's ruling was not
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the first administrative review of the countervailing duty (CVD) order on refillable stainless steel kegs from the People's Republic of China (China) for the period of review (POR) December 13, 2019, through December 31, 2019, based on the timely withdrawal of the request for review.
Applicable April 21, 2021.
Theodore Pearson, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2631.
On December 2, 2020, Commerce published a notice of opportunity to request an administrative review of the CVD order on refillable stainless steel kegs from China for the POR December 13, 2019, through December 31, 2019.
On February 4, 2021, pursuant to this request and in accordance with 19 CFR 351.221(c)(1)(i), Commerce published a notice initiating an administrative review of the CVD order on refillable stainless steel kegs from China with respect to Ningbo Master.
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party or parties that requested a review withdraws the request within 90 days of the publication date of the notice of initiation of the requested review. As noted above, Ningbo Master withdrew its request for review within 90 days of the publication date of the notice of initiation. No other parties requested an administrative review of the order. Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding this in its entirety.
Commerce intends to instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries of refillable stainless steel kegs from China during the POR. Countervailing duties shall be assessed at rates equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP no earlier than 35 days after the date of publication of this notice in the
This notice serves as a reminder to all parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before June 21, 2021.
Interested persons are invited to submit written comments to
Requests for additional information or specific questions related to collection activities should be directed to Gary Rule, NOAA Fisheries, 1201 NE Lloyd Blvd. Suite 1100, Portland, OR 97232, (503) 230-5424 or
The Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
The required information is used to evaluate the impacts of the proposed activity on endangered species, to make the determinations required by the ESA prior to issuing a permit, and to establish appropriate permit conditions. To issue permits under ESA Section 10(a)(1)(A), the National Marine Fisheries Service (NMFS) must determine that (1) such exceptions were applied for in good faith, (2) if granted and exercised, will not operate to the disadvantage of such endangered species, and (3) will be consistent with the purposes and policy set forth in Section 2 of the ESA.
Information may be collected through the internet, email, of paper format.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of Information Collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before June 21, 2021.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Melody Magnus or Doug Hilderbrand, StormReady Focal Points, National Weather Service, at
The National Weather Service (NWS) established the StormReady program in 1999 and the TsunamiReady program in 2002 to help communities, counties, Indian nations, universities and colleges, military bases, government sites, commercial enterprises and other groups reduce the potential for weather-related and tsunami hazards through advanced planning, education, and awareness. The program encourages
A Supporter is an organization, business, facility, or local government entity actively engaged in weather safety and preparedness that is unable to meet all the requirements of the full StormReady or TsunamiReady program. Sites may be eligible based on the bylaws of the local NWS StormReady Advisory Board and endorsement of local emergency management. A local StormReady Advisory Board has final approval for Supporter designation.
StormReady/TsunamiReady are voluntary programs that provide guidance and incentive to officials interested in improving their hazardous weather operations. The government will use the information collected by the StormReady/TsunamiReady application to determine whether a community has met all of the guidelines to receive StormReady/TsunamiReady recognition.
The information is collected via a digital or paper form. The form is accessible on the internet in PDF. Requirements are verified by NWS staff via an in person or virtual site visit.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before June 21, 2021.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Walter Ikehara, Fishery Information Specialist, NMFS Pacific Islands Region, 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818, (808) 725-5175,
This request is for an extension of a currently approved information collection.
The National Marine Fisheries Service (NMFS) implemented Federal regulations at 50 CFR 665.815(b) requiring Hawaii-based longline fisherman to safely handle and release short-tailed albatrosses (
Respondents have a choice of either electronic or paper forms. Methods of submittal include email or electronic forms, or mail or facsimile transmission of paper forms within 72 hours of landing.
We are soliciting public comments to permit the Department to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this information collection request. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
The survey will also investigate the reasons that prevented observers from reporting these violations. The results of the survey will provide the Office of Law Enforcement a better understanding of how often observers are victimized, which will enable them to reallocate resources as needed, conduct more training for observers to ensure they know how to report, conduct training to ensure people understand what constitutes a victim crime, and to increase awareness of potential victimizations. Additionally, the survey results will help law enforcement understand the barriers to disclosure, so enforcement may begin to address these impediments so they no longer prevent observers from disclosure.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of Information Collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before June 21, 2021.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Chris Wright, (301) 427-8570 or
This request is for an extension of a currently approved information collection by the NOAA's National Marine Fisheries Service, Office of Sustainable Fisheries. Under the provisions of the Magnuson-Stevens Fishery and Conservation and Management Act (Magnuson-Stevens Act) [16 U.S.C. 1801
The respondent provides written notice. No form is used.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Oceanic & Atmospheric Administration (NOAA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before June 21, 2021.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Emily Reynolds, Fishery Policy Analyst, NOAA Fisheries, 1845 Wasp Blvd., Bldg. #176, Honolulu, HI 96818, (808)-725-5039,
This request is for an extension of a currently approved information
The application for WCPFC Area Endorsements calls for specified information about the vessel and its operator that is not already collected via the application for high seas fishing permits issued under 50 CFR 300.333. The Foreign EEZ Form calls for specified information about the vessel, its owners and operators and any fishing authorizations issued by other nations. The information required to obtain an IMO number is not submitted to NMFS directly, but to a third party and serves to ensure that IMO numbers are issued for certain categories of vessels. This information collected under the three requirements is used by NOAA, the U.S. Coast Guard, and the Commission to monitor the size and composition of the HMS fleets in the Convention Area for compliance-related and scientific purposes and to ensure that IMO numbers are issued for certain categories of vessels.
All information is to be submitted in hard copy via mail or through electronic reporting.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Department of the Air Force, Department of Defense (DoD).
30-day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 21, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela James, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. James at
Department of the Army, Department of Defense (DoD).
Notice of a modified system of records.
The Department of the Army is modifying and renaming the United States Military Entrance Processing Command (USMEPCOM) Integrated Resource System (USMIRS), A0601-270. As the executive agent, the Department of the Army uses the USMIRS to determine the qualifications of applicants for the Armed Forces of the United States through aptitude testing, medical examination, identity verification, background screening, and administrative processing. Records will also be used to determine patterns and trends in the military population, and for statistical analyses.
This system of records modification is effective upon publication; however, comments on the Routine Uses will be accepted on or before May 21, 2021. The Routine Uses are effective at the close of the comment period.
You may submit comments, identified by docket number and title, by any of the following methods:
*
Follow the instructions for submitting comments.
*
Mr. Myron Wong, Department of the Army, U.S. Army Records Management and Declassification Agency, ATTENTION: Army Privacy and Civil Liberties Office, 9301 Chapek Road (Building 1458), Fort Belvoir, VA 22060-5605, or by calling 571-515-0243.
The USMEPCOM consists of 65 Military Entrance Processing Stations (MEPS) and one Remote Processing Station (RPS) in the United States. The USMIRS conducts aptitude tests, processes medical examinations, and determines acceptability of individuals for entry into the Armed Forces of the United States based on each Service's eligibility standards. The USMIRS also determines acceptability, administratively processes, allocates, and inducts Selective Service System registrants when required; and provides aptitude and medical examination services for other Federal agencies as requested. The USMIRS interfaces with recruiting capabilities for the Services using standard DoD data elements to share data between USMEPCOM and all the Armed Services recruiting and accession commands. Additionally, the USMIRS shares data with the Social Security Administration (SSA) and the United States Citizenship and Immigration Services (USCIS) for identity vetting and to verify eligibility to work in the United States. Applicant information is retained by the USMIRS for various statistical analyses to identify trends and reduce duplicative processes.
This system of records is being modified to alter the system name, modify the system number to remove “DoD” at the end, and to comply with requirements in Office of Management and Budget (OMB) Circular No. A-108 (2016). This modified system of records also expands the purposes of the system of records, the categories of individuals, and the categories of records by, among other things, including language concerning the system's support of Selective Service registration processes and support for other Federal agencies. The modifications include new and modified routine uses specifying, among other things, the potential sharing of information to authorized representative agents of Federal, state, local, territorial/tribal, international, or foreign agencies for legal, security, health, or other administrative reasons. Changes have also been made to the following sections: System manager; system location; authorities; retrieval of records; procedures for record access and notification, and contesting records; and safeguards.
In addition, the system of records is being modified to reflect major changes to the policies and practices for the retention and disposal of records due to a recent retention schedule change approved by the National Archives and Records Administration (NARA). The change in the system's retention policy was required to support the mobilization requirements in accordance with DoD policy (DoD Instruction 1352.01) and to prevent potential fraudulent enlistments using duplicated Social Security numbers. These changes will require the system to securely retain electronic data in a cloud computing environment to meet business needs prior to being securely archived offsite in a Federal Records Center on encrypted physical storage media.
The DoD notices for systems of records subject to the Privacy Act of 1974, as amended, have been published in the
In accordance with 5 U.S.C. 552a(r) and OMB Circular No. A-108, the DoD has provided a report of this system of records to the OMB and to Congress.
United States Military Entrance Processing Command (USMEPCOM) Integrated Resource System (USMIRS), A0601-270.
Unclassified.
Primary location: United States Military Entrance Processing Command (USMEPCOM), 2834 Green Bay Road, North Chicago, IL 60064-3094; digital cloud storage provided by Amazon Web Services (AWS) GovCloud (US), 12900 Worldgate Drive, Building: IAD21, Herndon, VA 20170. Segments exist at Military Entrance Processing Stations (MEPS) throughout the continental United States, Alaska, Hawaii, and Puerto Rico; official mailing addresses are available on the USMEPCOM web page at
Commander, U.S. Military Entrance Processing Command, 2834 Green Bay Road, North Chicago, IL 60064-3094. Deputy Director, J-6/Information Technology Directorate, (847) 688-3680, ext. 7701.
10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 10 U.S.C. Subtitle A, General Military Law, Part II, Personnel (Chapter 31, Enlistments and Chapter 33, Original Appointments of Regular Officers in Grades Above Warrant Officer Grades); 10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. 8013, Secretary of the Air Force; DoD Directive (DoDD) 1145.02E, United States Military Entrance Processing Command (USMEPCOM); DoD Instruction (DoDI) 1304.02, Accession Processing Data Collection Forms; DoDI 1304.12E, DoD Military Personnel Accession Testing Programs; DoDI 1304.26, Qualification Standards for Enlistment, Appointment and Induction; DoDI 6130.03, Medical Standards for Appointment, Enlistment, or Induction in the Military Services; DoD Manual 1145.02, Military Entrance Processing Station (MEPS); USMEPCOM Regulation 680-3, Entrance Processing and Reporting System Management; and E.O. 9397 (SSN), as amended.
The USMIRS is the official accession system for the Department of Defense (DoD). The USMEPCOM uses it to determine qualifications of applicants for the Armed Forces of the United States through aptitude testing, medical examination, identity verification, background screening, and administrative processing. The USMIRS is also used to determine qualifications for special category, non-enlistment applicants for Selective Service registration, and other Federal agency applicants when required. Accession data for the Services is reported to the Defense Manpower Data Center (DMDC) for applicant processing, reporting requirements, and quality assurance. Records are also used to determine patterns and trends in the military population, support mobilization, prevent fraudulent enlistments, and for statistical analyses.
All individuals who report to a military entrance test site or MEPS for aptitude testing and/or medical examination to determine their fitness for entry into the U.S. Armed Forces (Army, Navy, Air Force, Marine Corps, and Coast Guard). Individuals may also include Selective Service System inductees and special category non-enlistment applicants from Federal agencies such as the Central Intelligence Agency, Federal Bureau of Investigation, Federal Aviation Administration, and other uniformed services such as the United States Public Health Service Commissioned Corps or the National Oceanic and Atmospheric Administration Commissioned Officer Corps (as required).
Personally identifying data to include: Full name and other names used; Social Security Number (SSN), DoD Identification (DoD ID) number, alien registration number, selective service registration number; gender; date and place of birth; race and ethnic origin; height, weight, eye color; biometric data (fingerprints and digital photograph); and driver's license number.
Other personal data to include: Marital status; citizenship and immigration status; religious preference, home and mobile telephone number; home and mailing address; state of permanent residence; personal email address; languages spoken; prior employment; background investigation.
Dependent family member data (emergency contact information) to include: Family members' full names and other names used; date of birth; marital status; home, mobile and work telephone number; and home and work address.
Prior military personnel data to include: Branch; service computation dates; type of discharge; separation reason codes; lost time (absent without leave and desertion); and DoD ID number.
The individuals. The individuals' data is also received from records maintained by the DMDC. Information may also be provided by education and financial institutions, law enforcement agencies, the Office of Personnel Management, Social Security Administration, Department of Homeland Security, Department of the Treasury, and other Federal, state and local agencies.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained in this system may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
a. To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Federal Government when necessary to accomplish an agency function related to this system of records.
b. To the appropriate Federal, State, local, territorial, tribal, foreign, or international law enforcement authority or other appropriate entity where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law, whether criminal, civil, or regulatory in nature.
c. To any component of the Department of Justice for the purpose of representing the DoD, or its components, officers, employees, or members in pending or potential litigation to which the record is pertinent.
d. In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body or official, when the DoD or other Agency representing the DoD determines that the records are
e. To the National Archives and Records Administration for the purpose of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
f. To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
g. To appropriate agencies, entities, and persons when (1) the DoD suspects or confirms a breach of the system of records; (2) the DoD determines as a result of the suspected or confirmed breach there is a risk of harm to individuals, the DoD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the DoD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
h. To another Federal agency or Federal entity, when the DoD determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
i. To such recipients and under such circumstances and procedures as are mandated by Federal statute or treaty.
j. To Federal, State and local health departments for compliance with public health communicable disease reporting laws in accordance with 42 U.S.C. 264.
k. To the Social Security Administration (SSA) and the United States Citizenship and Immigration Services (USCIS) to verify eligibility to work in the United States as required by 8 U.S.C. 1101 and 8 U.S.C. 1324a.
l. To the Central Intelligence Agency, Federal Bureau of Investigation, and Federal Aviation Administration; and other uniformed services such as the United States Public Health Service Commissioned Corps or the National Oceanic and Atmospheric Administration Commissioned Officer Corps when medically processing special category non-enlistment applicants on behalf of those agencies.
m. To the Selective Service System (SSS) to report processing of inductees in support of a military draft, and for the purpose of updating the SSS registrant database as required by 50 U.S.C. 3802.
n. To other Federal, state, local, territorial or tribal, international, or foreign agencies, and to financial institutions, in order to obtain information relevant and necessary to USMEPCOM's qualification determinations for the individuals covered by this system of records.
o. To designated officers and employees of Federal, State, local, territorial, tribal, international, or foreign agencies in connection with the hiring or retention of an employee, the conduct of a suitability or security investigation, the letting of a contract, or the issuance of a license, grant or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter and the Department deems appropriate.
p. To foreign or international law enforcement, security, or investigatory authorities to comply with requirements imposed by, or to claim rights conferred in, international agreements and arrangements, including those regulating the stationing and status in foreign countries of DoD military and civilian personnel.
q. To appropriate Federal, State, local, territorial, tribal, foreign, or international agencies for the purpose of counterintelligence activities authorized by U.S. law or Executive Order, or for the purpose of executing or enforcing laws designed to protect the national security or homeland security of the United States, including those relating to the sharing of records or information concerning terrorism, homeland security, or law enforcement.
Records may be stored electronically or on paper in secure facilities in a locked drawer behind a locked door. Electronic records may be stored locally on digital media; in agency-owned cloud environments; or in vendor Cloud Service Offerings certified under the Federal Risk and Authorization Management Program (FedRAMP).
Records may be retrieved by individual's name, Social Security Number (SSN), DoD Identification Number, USMIRS automatic identification and data capture (AIDC) identification code (barcode), and/or biometric data (fingerprint).
All hardcopy applicant records are retained at each MEPS for a period ranging between 2 years, 3 years, or a maximum of 7 years, as defined by individual qualification status, then destroyed.
The USMIRS will retain electronic qualified applicant processing records in the system until no longer needed for conducting business. The records will then be placed on physical storage media and transferred to the Federal Records Center (FRC). The FRC will destroy the records when the applicant turns 43 years old. USMIRS will retain electronic permanently disqualified applicant processing records in the system until no longer needed for conducting business. The records will then be placed on physical storage media and transferred to the FRC. The FRC will destroy the records after 99 years.
Administrative safeguards include periodic security audits, regular monitoring of users' security practices, employment of methods to ensure only authorized personnel have access to personal information, all personnel are required to have appropriate background checks conducted prior to attaining system access, and privileged users are required to attain and maintain certification in accordance with DoD Directive 8140.01 and DoD 8570.01-M. Technical safeguards include user ID and password, intrusion detection system, encryption, external certificate authority, biometrics, firewall, virtual private network, DoD public key infrastructure certificates, common access card, and security technical implementation guides. Physical safeguards include security guards, identification badges, key cards, safes, and cipher locks. All USMIRS servers are stored in either a data center or locked server/communications room.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commander, U.S. Military Entrance Processing Command, FOIA/PA Officer (J-1/MEHR-PR), 2834 Green Bay Road, North Chicago, IL 60064-3094. Individuals should provide their full name, current address telephone number, and other personal identifying data that would assist in
If executed outside the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”
If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
The DoD rule for accessing, contesting and appealing agency determinations by the individual concerned are published in 32 CFR part 310 or may be obtained from the system manager.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commander, U.S. Military Entrance Processing Command, FOIA/PA Officer (J-1/MEHR-PR), 2834 Green Bay Road, North Chicago, IL 60064-3094. Individuals should provide their full name, current address telephone number, and other personal identifying data that would assist in locating the records. In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”
If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
None.
November 3, 2010, 75 FR 67700; February 25, 2005, 70 FR 9284.
The U.S. Corps of Engineers, Department of Defense (DoD).
30-day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 21, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela James, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. James at
Office of the Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
Information collection notice.
Consistent with the
Comments must be received by May 21, 2021.
The Department has requested emergency processing from OMB for this information collection request by 30 days after publication of this notice. Interested parties can access the supporting materials and collection instrument as well as submit comments and recommendations to OMB at
Angela James, 571-372-7574, or
Sexual assault, sexual harassment, and gender discrimination remain a major concern across the DoD and for members of Congress. In February 2004, the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) testified before the Senate Armed Services Committee on the prevalence of sexual assault in the DoD and the programs and policies planned to address the issues. In accordance with legislative requirements, the USD(P&R) issued memoranda to the Services that provides DoD policy guidance on sexual assault that included a new standard definition, response capability, training requirements, response actions, and reporting guidance throughout the Department. The Sexual Assault and Prevention Response Office (SAPRO) supported implementation of the new policy and requires data to assess the prevalence of sexual assault in the Department and the effectiveness of the programs they have implemented.
The Workplace and Gender Relations Surveys will assess the attitudes and opinions of military members on gender issues, including issues relating to sexual harassment, gender discrimination, and sexual assault, as well as the culture and climate of the units/organizations in which Service members serve. The objective of the WGR surveys is to provide the policy offices of the USD(P&R) with current data on (1) the positive and negative trends for professional and personal relationships between Service members; (2) the specific types of assault that have occurred and the number of times in the preceding year; (3) the effectiveness of DoD policies designed to improve professional relationships between male and female Service members; (4) the effectiveness of current processes for complaints, reports, and investigations; and, (5) specific issues related to sexual harassment, sexual assault, and gender discrimination that may inform the Department's prevention and response efforts.
Office of the Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
30-day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 21, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela James, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. James at
The Office of the Assistant Secretary of Defense for Health Affairs, Department of Defense (DoD).
Information collection notice.
In compliance with the
Consideration will be given to all comments received by June 21, 2021.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Health Agency (DHA), ATTN: Frank Bradt, 5109 Leesburg Pike, Skyline 6, Suite 701, Falls Church, VA 22041, or call at (202) 380-6107.
EBMS has built-in safeguards to limit access and visibility of personal or sensitive information in accordance with the Privacy Act of 1974. The application will account for everyone that donates blood and receives a blood transfusion in the MHS—Active Duty, Reserves, National Guard, government civilian, contractors and volunteers assigned or borrowed—this also includes non-appropriated fund employees and foreign nationals.
The Office of the Assistant Secretary of Defense for Health Affairs, Department of Defense (DoD).
30-day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 21, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this
Angela James, 571-372-7574, or
Respondent's Obligation: Voluntary.
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
DOD Clearance officer: Ms. Angela James.
Requests for copies of the information collection proposal should be sent to Ms. James at
The Office of the Under Secretary of Defense Comptroller, Department of Defense (DoD).
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 21, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela James, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. James at
The U.S. Corps of Engineers, Department of Defense (DoD).
30-day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 21, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela James, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Instructions: All submissions received must include the agency name, Docket ID number, and title for this
Requests for copies of the information collection proposal should be sent to Ms. James at
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of availability.
The U.S. Department of Energy (DOE) is announcing the availability of a Preliminary Energy Savings Analysis of ANSI/ASHRAE/IES Standard 90.1-2019 (Preliminary Analysis). DOE welcomes written comments from interested parties on any subject within the scope of this Preliminary Analysis.
DOE will accept written comments and information on the Preliminary Analysis no later than May 21, 2021.
A copy of the Preliminary Analysis is available at
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
Although DOE has routinely accepted public comment submissions through a variety of mechanisms, including postal mail and hand delivery/courier, the Department has found it necessary to make temporary modifications to the comment submission process in light of the ongoing Covid-19 pandemic. DOE is currently accepting only electronic submissions at this time. If a commenter finds that this change poses an undue hardship, please contact the parties listed below to discuss the need for alternative arrangements. Once the Covid-19 pandemic health emergency is resolved, DOE anticipates resuming all of its regular options for public comment submission, including postal mail and hand delivery/courier.
Mr. Jeremiah Williams; U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 1000 Independence Avenue SW, EE-5B, Washington, DC 20585. Telephone: (202) 287-1941;
Mr. Matthew Ring; U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW, GC-33, Washington, DC 20585; Telephone: (202) 586-2555;
Title III of the Energy Conservation and Production Act, as amended (ECPA), establishes requirements for DOE to review consensus-based building energy conservation standards. (42 U.S.C. 6831
Standard 90.1-2019, the most recent edition, was published in October 2019, triggering the statutorily required DOE review process. The Standard is developed under ANSI-approved consensus procedures,
In addition, on January 20, 2021, the President issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” 86 FR 7037 (Jan. 25, 2021). The Executive Order directed DOE to consider publishing for notice and comment a proposed rule suspending, revising, or rescinding the final technical determination regarding the ASHRAE Standard 90.1-2016 by May 2021.
To meet the statutory requirement, DOE conducted a preliminary analysis to quantify the expected national energy savings associated with Standard 90.1-2019 relative to the previous 2016 version. The preliminary results of this analysis indicate national savings of:
• 4.7 percent
• 4.3 percent
• 4.3 percent energy
• 4.2 percent
A copy of the Preliminary Analysis is available at
States can experience significant benefits by updating their codes to reflect current construction standards, a total estimated $51.59 billion in energy cost savings and 405.51 MMT of avoided CO
DOE will accept comments, data, and information regarding the Preliminary Analysis no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. No facsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
This document of the Department of Energy was signed on April 15, 2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary and Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
284.123(g) Protests Due: 5 p.m. ET 6/14/2021.
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
On January 19, 2021, Daybreak Power, Inc., filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), to study the feasibility of the Halverson Canyon Pumped Storage Project to be located near Lake Roosevelt in Lincoln County, Washington. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed pumped storage project would use the Bureau of Reclamation's Lake Roosevelt as the lower reservoir and consist of the following new facilities: (1) A 399-foot-high, rockfill concrete face upper reservoir with an estimated usable volume of approximately 29,000 acre-feet, at a maximum operating elevation of 2,400 feet mean sea level (msl); (2) a 10,015-foot long water conveyance system connecting the upper and lower reservoirs composed of three 35-feet diameter headrace tunnels, nine 13-feet diameter penstocks, and nine 15-feet diameter draft tubes; (3) a 754-foot-long, 82-foot-wide, 128-foot-high powerhouse containing nine 295-MW fixed-speed pump turbine/generation units for a combined capacity of approximately 2,650 megawatts; (4) a 5-mile-long 765 kilovolts (kV) transmission line connecting the powerhouse with Bonneville Powers Creston substation; and (5) appurtenant facilities. The project intake would be on federal land. The estimated annual generation of the Halverson Canyon Pumped Storage Project would be approximately 8,899,000 megawatt-hours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's website at
As first announced in the Notice of Technical Conference issued in this proceeding on March 2, 2021, the Federal Energy Regulatory Commission (Commission) will convene a Commissioner-led technical conference in the above-referenced proceeding on Thursday, April 29, 2021, from 10:00 a.m. to 6:00 p.m. Eastern Time. The conference will be held electronically. Attached to this Supplemental Notice is an agenda for the technical conference, which includes the final conference program.
Discussions at the conference may involve issues raised in proceedings that are currently pending before the Commission. These proceedings include, but are not limited to:
Michigan Electric Transmission Company, LLC, Docket No. ER21-424;
Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators, Docket No. RM18-9.
The conference will be open for the public to attend electronically. There is no fee for attendance. Registration for the conference is not required. Information on this technical conference, including a link to the webcast, will be posted on the conference's event page on the Commission's website,
The conference will be transcribed. Transcripts of the conference will be available for a fee from Ace-Federal Reporters, Inc., (202) 347-3700.
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this technical conference, please contact:
Take notice that on April 1, 2021, Transcontinental Gas Pipe Line Company, LLC (Transco), P.O. Box 1396, Houston, Texas 77251, filed an application under section 7(b) of the Natural Gas Act (NGA), and Part 157 of the Commission's regulations requesting that the Commission authorize the abandonment of its Eugene Island Block 184 “A-ROW” Platform and supply laterals extending from Eugene Island Blocks 195 and 215 to Eugene Island Block 184 “A-ROW” Platform; and from Eugene Island Block 184 “A-ROW” Platform to Eugene Island Block 129 “A” located in Offshore, Louisiana. Transco states that the requested abandonment will have no impact on the daily design capacity of, or operating conditions on, Transco's pipeline system, all as more fully set forth in the application which is on file with the Commission and open for public inspection.
In addition to publishing the full text of this document in the
Any questions regarding the proposed project should be directed to Andre Pereira, Regulatory Analyst, Lead, Transcontinental Gas Pipe Line Company, LLC, P.O. Box 1396, Houston, Texas 77251, by phone (713) 215-4362, or by email at
Pursuant to Section 157.9 of the Commission's Rules of Practice and Procedure,
There are two ways to become involved in the Commission's review of this project: You can file comments on the project, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a motion to intervene is 5:00 p.m. Eastern Time on May 6, 2021.
Any person wishing to comment on the project may do so. Comments may include statements of support or objections to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please submit your comments on or before May 6, 2021.
There are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number CP21-110-000 in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address below
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
Persons who comment on the environmental review of this project will be placed on the Commission's environmental mailing list, and will receive notification when the environmental documents (EA or EIS) are issued for this project and will be notified of meetings associated with the Commission's environmental review process.
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, the filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number CP21-110-000 in your submission.
(1) You may file your motion to intervene by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below.
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Motions to intervene must be served on the applicant either by mail or email at: P.O. Box 1396, Houston, Texas 77251 or at
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that on April 14, 2021, pursuant to 18 CFR 385.602, Enbridge Energy, Limited Partnership, with the support of the Canadian Association of Petroleum Producers, submitted a Supplement to the Facilities Surcharge Settlement approved by the Commission on June 30, 2004, in Docket No. OR04-2-000, at 107 FERC ¶ 61,336 (2004).
Initial comments and reply comments on the Settlement Supplement should be submitted on or before the dates indicated below.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene, or protest must serve a copy of that document on the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
On April 2, 2021, Walden Hydro, LLC filed with the Federal Energy Regulatory Commission a copy of its application for a Clean Water Act section 401(a)(1) water quality certification submitted to New York State Department of Environmental Conservation (New York DEC), in conjunction with the above captioned project. Pursuant to 40 CFR 121.6, we hereby notify the New York DEC of the following:
If New York DEC fails or refuses to act on the water quality certification request by the above waiver date, then the agency's certifying authority is deemed waived pursuant to section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1).
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:.
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b. Project No.: 15021-000.
c. Date filed: December 23, 2019.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file motions to intervene and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted but is not ready for environmental analysis at this time.
l.
m. A copy of the application can be viewed on the Commission's website at
Register online at
n. Due to the small size and location of this project, the applicant's close coordination with federal and state agencies during preparation of the application, and studies completed during pre-filing consultation, we intend to waive scoping and expedite the licensing process. Based on a review of the application and resource agency consultation letters including comments filed to date, Commission staff intends to prepare a NEPA document to address resource issues identified during the pre-filing period. Commission staff does not anticipate that any new issues would be identified through additional scoping. The NEPA document will assess the potential effects of project operation on geology and soils, aquatic, terrestrial, threatened and endangered species, recreation, cultural and historic resources, and flooding upstream of the dam.
o. Any qualified applicant desiring to file a competing application must submit to the Commission, on or before the specified intervention deadline date, a competing development application, or a notice of intent to file such an application. Submission of a timely notice of intent allows an interested person to file the competing development application no later than 120 days after the specified intervention deadline date. Applications for preliminary permits will not be accepted in response to this notice.
A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit a development application. A notice of intent must be served on the applicant(s) named in this public notice.
p. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
q.
Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that Federal Energy Regulatory Commission (Commission) staff will convene a workshop to discuss certain performance-based ratemaking approaches, particularly shared savings, that may foster deployment of transmission technologies. Commissioners may attend and participate in the workshop.
Transmission technologies, as deployed in certain circumstances, may enhance reliability, efficiency, and capacity, and improve the operation of new or existing transmission facilities. The workshop will discuss issues related to shared savings approaches
The workshop will be held on September 10, 2021, from approximately 9:00 a.m. to 5:00 p.m. Eastern Time. At this time, the workshop is expected to be held remotely. A supplemental notice will be issued prior to the workshop with further details regarding the agenda and organization, as well as the details for accessing the workshop.
Individuals interested in participating as panelists should submit a self-nomination email by 5:00 p.m. on May 21, 2021 to
The workshop will be open for the public to attend electronically. There is no fee for attendance.
Commission workshops are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this workshop, please contact:
On April 5, 2021, Transcontinental Gas Pipe Line Company, LLC submitted to the Federal Energy Regulatory Commission (Commission) a copy of its application for a Clean Water Act section 401(a)(1) water quality certification filed with the Pennsylvania Department of Environmental Protection (PA DEP), in conjunction with the above captioned project. Pursuant to 40 CFR 121.6, we hereby notify the PA DEP of the following:
If PA DEP fails or refuses to act on the water quality certification request by the above waiver date, then the agency's certifying authority is deemed waived pursuant to section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1).
Take notice that during the month of March 2021, the status of the above-captioned entities as Exempt Wholesale Generators became effective by operation of the Commission's regulations. 18 CFR 366.7(a) (2020).
Take notice that on April 8, 2021, pursuant to section 292.402 of the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR 292.402, Kentucky Municipal Energy Agency (KYMEA), on behalf of itself and its authorizing member municipal electric utilities,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
The Federal Energy Regulatory Commission (Commission) staff will convene, in the above-referenced proceeding, a virtual Spanish listening session on Tuesday, May 4, 2021, from 3:00 p.m. to 4:30 p.m. Eastern time, to solicit public input on public participation and engagement, language justice, and issues facing environmental justice communities by Commission proceedings in order for the Commission to establish and operate the Office of Public Participation (OPP).
The listening session will be open to the public and audio-only. Call-in information, including preregistration, can be found on the OPP website. The listening session will have consecutive Spanish translation, the operator will be bilingual, and an audio recording and transcript will be posted on the OPP website after the event. For questions about the listening session, please send an email to
The listening sessions will be accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
Personal de la Comisión Reguladora de Energía Federal (Comisión) convocará, en el procedimiento referido arriba, una sesión virtual para escuchar
La sesión virtual para escuchar estará abierta al público y será solo audio. Para mayor información, incluyendo el proceso de pre-registro, puede ir al sitio web de la OPP. La sesión para escuchar tendrá traducción consecutiva, el operador será bilingüe; y posterior al evento, la grabación de audio y transcripción estarán disponibles en el sitio web de la OPP. Por favor dirigir preguntas sobre la sesión virtual para escuchar, al correo electrónico:
Las sesiones virtuales para escuchar estarán accesibles de acuerdo con la sección 508 del Acta de Rehabilitación de 1973. Para ayuda con accesibilidad, por favor enviar un correo electrónico a:
Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-725Y, Mandatory Reliability Standard (Personnel Performance, Training, and Qualifications).
Comments on the collection of information are due June 21, 2021.
You may submit copies of your comments (identified by Docket No. IC21-18-000) by one of the following methods:
Electronic filing through
•
• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery:
○
○
Ellen Brown may be reached by email at
Reliability Standard PER-005-2 requires entities to maintain records subject to review by the Commission and NERC to ensure compliance with the Reliability Standard. This Reliability Standard contains of six Requirements:
Reliability Standard PER-006-1 ensures that personnel are trained on specific topics essential to reliability to perform or support Real-Time operations of the Bulk Electric System.
The Commission estimates the additional annual reporting burden and cost as follows:
• Electrical Engineer (Occupation Code: 17-2071): $70.19 (to calculate the reporting requirements).
• Office and Administrative Support (Occupation Code: 43-0000): $43.38 (to calculate the recordkeeping requirements).
Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-716 (Good Faith Requests for Transmission Service and Good Faith Responses by Transmitting Utilities Under Sections 211(a) and 213(a) of the Federal Power Act (FPA)).
Comments on the collection of information are due June 21, 2021.
You may submit copies of your comments (identified by Docket No. IC21-15-000) by one of the following methods:
Electronic filing through
•
• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery:
○
○
Ellen Brown may be reached by email at
The Commission's regulations in the Code of Federal Regulations (CFR), 18 CFR 2.20, provide standards by which the Commission determines if and when a valid good faith request for transmission has been made under section 211 of the FPA. By developing the standards, the Commission sought to encourage an open exchange of data with a reasonable degree of specificity and completeness between the party requesting transmission services and the transmitting utility. As a result, 18 CFR 2.20 identifies 12 components of a good faith estimate and 5 components of a reply to a good faith request.
Take notice that on April 6, 2021, Gulf States Transmission LLC (Gulf States) 1300 Main Street, Houston, Texas 77002, filed in Docket No. CP21-116-000, an abbreviated application pursuant to Section 7(b) of the Natural Gas Act (NGA), and Part 157 of the Commission's regulations requesting authorization to abandon by sale to ETC Haynesville LLC (ETCH) the Gulf States interstate pipeline system in its entirety consisting of approximately 10 miles of 12-inch and 20-inch pipelines, meter and regulator stations, receipt and delivery points, and related and appurtenant facilities (collectively referred to as the Pipeline System) located in Harrison County, Texas, and Caddo Parish, Louisiana. Gulf States is also requesting authority to abandon its: (i) NGA Section 7 certificate of public convenience and necessity for the acquisition, construction, and operation of the Pipeline System; (ii) blanket certificate issued under Part 157, Subpart F of the Commission's regulations; and (iii) Part 284 blanket certificate to provide open access transportation; as well as the cancellation of its FERC Gas Tariff, Second Revised Volume No. 1, including all rate schedules therein, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
In addition to publishing the full text of this document in the
Any questions regarding this filing may be directed to Blair Lichtenwalter, Senior Director of Certificates, Gulf States Transmission LLC, 1300 Main Street, Houston, Texas 77002; by phone at (713) 989-2605, or by email at
Pursuant to Section 157.9 of the Commission's Rules of Practice and Procedure,
There are two ways to become involved in the Commission's review of this project: you can file comments on the project, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a motion to intervene is 5:00 p.m. Eastern Time on May 6, 2021.
Any person wishing to comment on the project may do so. Comments may include statements of support or objections to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please submit your comments on or before May 6, 2021.
There are three methods you can use to submit your comments to the Commission. In all instances, please reference the Project docket number CP21-116-000 in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the following address below
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, the filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number CP21-116-000 in your submission.
(1) You may file your motion to intervene by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below.
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Motions to intervene must be served on the applicant either by mail or email at: Gulf States Transmission LLC, 1300 Main Street, Houston, Texas 77002; or at
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at www.f
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Western Area Power Administration, DOE.
Notice of proposed transmission, energy and generator imbalance, and losses formula rates for use under the Western Energy Imbalance Service (WEIS) Market.
The Rocky Mountain Region (RMR) of the Western Area Power Administration (WAPA) proposes to convert its existing rates for short-term sales for RMR to use under the WEIS Market to new long-term formula rates for use October 1, 2021, through September 30, 2024. The existing formula rates (approved under the WAPA Administrator's short-term rate authority) expire on September 30, 2021. No changes are being proposed to the existing formula rates under the rates for short-term sales Rate Schedules L-NFJDT (joint dispatch transmission), L-AS4 (energy imbalance), L-AS9 (generator imbalance), and L-AS7 (balancing authority real power losses).
A consultation and comment period will begin April 21, 2021 and end May 21, 2021. RMR will accept written comments at any time during the 30-day consultation and comment period.
Written comments and requests to be informed of Federal Energy Regulatory Commission (FERC) actions concerning the proposed formula rates submitted by WAPA to FERC for approval should be sent to: Mr. Timothy A. Vigil, Acting Regional Manager, Rocky Mountain Region, Western Area Power Administration, 5555 East Crossroads Boulevard, Loveland, CO 80538-8986, or email:
Mrs. Sheila D. Cook, Rates Manager, Rocky Mountain Region, Western Area Power Administration, (970) 685-9562 or email:
On March 9, 2017, FERC approved and confirmed LAP transmission and LAP, WACM, and Colorado River Storage Project ancillary services formula rates under Rate Schedules L-NT1 (network), L-FPT1 (firm point-to-point), L-NFPT1 (non-firm point-to-point), L-UU1 (unreserved use), L-AS1 (scheduling and dispatch), L-AS2 (reactive supply and voltage control (VAR) support), L-AS3 (regulation), L-AS4 (energy imbalance), L-AS5 (spinning reserves), L-AS6 (supplemental reserves), L-AS7 (transmission losses), and L-AS9 (generator imbalance) under Rate Order No. WAPA-174 for a 5-year period through September 30, 2021.
The existing formula rates under the rates for short-term sales provide sufficient revenue to recover annual costs within the cost recovery criteria set forth in Department of Energy (DOE) Order RA 6120.2. RMR proposes that the long-term formula-based rates would take effect October 1, 2021. The proposed formula rates would remain in effect until September 30, 2024, or until WAPA changes the formula rates through another public rate process pursuant to 10 CFR part 903, whichever occurs first. For more information on the proposed rates, please see the customer brochure located on RMR's website at:
Under a separate rate extension process, Rate Order No. WAPA-196, RMR is concurrently proposing to extend the remaining 5-year formula rates under Rate Schedules L-NT1 (network), L-FPT1 (firm point-to-point), L-NFPT1 (non-firm point-to-point), L-UU1 (unreserved use), L-AS1 (scheduling and dispatch), L-AS2 (VAR support), L-AS3 (regulation), L-AS5 (spinning reserves), and L-AS6 (supplemental reserves) for this same 3-year period, October 1, 2021, through September 30, 2024.
This 3-year period would allow RMR time to refine the WEIS Market implementation and investigate the potential expansion of and participation in the Southwest Power Pool (SPP) Regional Transmission Organization (RTO) in the Western Interconnection.
DOE's procedures for public participation in power and transmission rate adjustments (10 CFR part 903) were published in 1985 and 2019.
WAPA is establishing the formula rates for LAP and WACM in accordance with section 302 of the DOE Organization Act (42 U.S.C. 7152).
By Delegation Order No. 00-037.00B, effective November 19, 2016, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to WAPA's Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, or to remand or disapprove such rates to FERC. By Delegation Order No. S1-DEL-S4-2021, effective February 25, 2021, the Acting Secretary of Energy also delegated the authority to confirm, approve, and place such rates into effect on an interim basis to the Under Secretary for Science (and Energy). By Redelegation Order No. 00-002.10E, effective February 14, 2020, the Under Secretary of Energy (to whom such authority was delegated by the Secretary of Energy in Delegation Order No. 00-002.00S from January 15, 2020, until that delegation was rescinded on February 25, 2021) redelegated the authority to confirm, approve, and place such rates into effect on an interim basis to the Assistant Secretary for Electricity. By Redelegation Order No. 00-002.10-05, effective July 8, 2020, the Assistant Secretary for Electricity further redelegated the authority to confirm, approve, and place such rates into effect on an interim basis to WAPA's Administrator. The delegations and redelegations not affirmatively rescinded remain valid.
All brochures, studies, comments, letters, memorandums, or other documents that RMR initiates or uses to develop the proposed formula rates are available for inspection and copying at the Rocky Mountain Region, located at 5555 East Crossroads Boulevard, Loveland, Colorado. Many of these documents and supporting information are also available on WAPA's website at:
WAPA is in the process of determining whether an environmental assessment or an environmental impact statement should be prepared or if this action can be categorically excluded from those requirements.
WAPA has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
This document of the Department of Energy was signed on April 9, 2021, by Tracey A. LeBeau, Interim Administrator, Western Area Power Administration, pursuant to delegated authority from the Secretary of Energy. That document, with the original signature and date, is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Western Area Power Administration, DOE.
Notice of proposed extension of transmission and ancillary services formula rates.
The Rocky Mountain Region (RMR) of the Western Area Power Administration (WAPA) proposes to extend existing formula rates for the Loveland Area Projects (LAP), the Western Area Colorado Missouri Balancing Authority (WACM), and the Colorado River Storage Project (CRSP) through September 30, 2024. The extended formula rates are unchanged from the existing formula rates applicable to LAP transmission services under rate schedules L-NT1 (network), L-FPT1 (firm point-to-point), L-NFPT1 (non-firm point-to-point), and L-UU1 (unreserved use), and applicable to LAP, WACM, and CRSP ancillary services under rate schedules L-AS1 (scheduling and dispatch), L-AS2 (reactive supply and voltage control (VAR) support), L-AS3 (regulation), L-AS5 (spinning reserves), and L-AS6 (supplemental reserves) that expire on September 30, 2021.
A consultation and comment period will begin April 21, 2021 and end May 21, 2021. RMR will accept written comments at any time during the consultation and comment period.
Written comments and requests to be informed of Federal Energy Regulatory Commission (FERC) actions concerning the proposed extension submitted by WAPA to FERC
Mrs. Sheila D. Cook, Rates Manager, Rocky Mountain Region, Western Area Power Administration, (970) 685-9562 or email:
On March 9, 2017, FERC approved and confirmed LAP transmission and LAP, WACM, and CRSP ancillary services formula rates under Rate Schedules L-NT1 (network), L-FPT1 (firm point-to-point), L-NFPT1 (non-firm point-to-point), L-UU1 (unreserved use), L-AS1 (scheduling and dispatch), L-AS2 (VAR support), L-AS3 (regulation), L-AS4 (energy imbalance), L-AS5 (spinning reserves), L-AS6 (supplemental reserves), L-AS7 (transmission losses), and L-AS9 (generator imbalance) under Rate Order No. WAPA-174 for a 5-year period through September 30, 2021.
In accordance with 10 CFR 903.23(a),
In accordance with 10 CFR 903.23(a), WAPA has determined that it is not necessary to hold public information or public comment forums for this rate action but is initiating a 30-day consultation and comment period to give the public an opportunity to comment on the proposed extension. RMR will review and consider all timely public comments at the conclusion of the consultation and comment period and adjust the proposal as appropriate.
Under a separate rate adjustment process, Rate Order No. WAPA-197, RMR is concurrently proposing to put long-term rates in place for RMR to use under the WEIS Market under Rate Schedules L-AS4 (energy imbalance), L-AS9 (generator imbalance), L-AS7 (balancing authority real power losses), and L-NFJDT (joint dispatch transmission) for this same 3-year period, October 1, 2021, through September 30, 2024.
This 3-year period would allow RMR time to refine the WEIS Market implementation and investigate the potential expansion of, and participation in, the Southwest Power Pool (SPP) Regional Transmission Organization (RTO) in the Western Interconnection. The potential expansion of the SPP RTO would have significant impacts on the above rate methodologies. Putting rates in place for the next three years would also allow time for RMR to evaluate what changes would need to be made to these rates before conducting a major rate adjustment process and putting all necessary formula rates in place for a new 5-year period that would begin on October 1, 2024.
By Delegation Order No. 00-037.00B, effective November 19, 2016, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to WAPA's Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, or to remand or disapprove such rates to FERC. By Delegation Order No. S1-DEL-S4-2021, effective February 25, 2021, the Acting Secretary of Energy also delegated the authority to confirm, approve, and place such rates into effect on an interim basis to the Under Secretary for Science (and Energy). By Redelegation Order No. 00-002.10E, effective February 14, 2020, the Under Secretary of Energy (to whom such authority was delegated by the Secretary of Energy in Delegation Order No. 00-002.00S from January 15, 2020, until that delegation was rescinded on February 25, 2021) redelegated the authority to confirm, approve, and place such rates into effect on an interim basis to the Assistant Secretary for Electricity. By Redelegation Order No. 00-002.10-05, effective July 8, 2020, the Assistant Secretary for Electricity further redelegated the authority to confirm, approve, and place such rates into effect on an interim basis to WAPA's Administrator. The delegations and redelegations not affirmatively rescinded remain valid.
WAPA previously determined that this action fits within the class listed in Appendix B to Subpart D of 10 CFR part 1021.410: Categorical exclusions applicable to B4.3: Electric power marketing rate changes and B4.4: Power marketing services and activities, which do not require preparation of either an environmental impact statement (EIS) or an environmental assessment (EA).
WAPA has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
This document of the Department of Energy was signed on April 9, 2021, by Tracey A. LeBeau, Interim Administrator, Western Area Power Administration, pursuant to delegated authority from the Secretary of Energy. That document, with the original signature and date, is maintained by DOE. For administrative purposes only,
Environmental Protection Agency (EPA).
Notice.
EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.
Comments must be received on or before May 21, 2021.
Submit your comments, identified by the docket identification (ID) number and the File Symbol or the EPA registration number of interest as shown in the body of this document, by one of the following methods:
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Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
Charles Smith, Biopesticides and Pollution Prevention Division (7511P), main telephone number: (703) 305-7090, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
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EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Pursuant to the provisions of FIFRA section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by the Agency on these applications.
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Environmental Protection Agency (EPA).
Notice of public meeting.
The Environmental Protection Agency (EPA), Office of Research and Development (ORD), gives notice of a virtual meeting of the Board of Scientific Counselors (BOSC) Executive Committee (EC) to review the draft reports of the Air and Energy (AE) and Chemical Safety for Sustainability and Health and Environmental Risk Assessment (CSS-HERA) subcommittees.
The meeting will be held over one day via videoconference on Tuesday, May 25, 2021, from 2 p.m. to 5 p.m. (EDT). Attendees must register by May 24, 2021.
Meeting times are subject to change. This meeting is open to the public. Comments must be received by May 24, 2021, to be considered by the Executive Committee. Requests for the draft agenda or making a presentation at the meeting will be accepted until May 24, 2021.
Instructions on how to connect to the videoconference will be provided upon registration at
Submit your comments to Docket ID No. EPA-HQ-ORD-2015-0765 by one of the following methods:
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Copyrighted materials in the docket are only available via hard copy. The telephone number for the ORD Docket Center is (202) 566-1752.
The Designated Federal Officer (DFO), Tom Tracy, via phone/voicemail at: (202) 564-6518; or via email at:
Any member of the public interested in receiving a draft agenda, attending the meeting, or making a presentation at the meeting should contact Tom Tracy no later than May 24, 2021.
The Board of Scientific Counselors (BOSC) is a federal advisory committee that provides advice and recommendations to EPA's Office of Research and Development on technical and management issues of its research programs. The meeting agenda and materials will be posted to
Proposed agenda items for the meeting include, but are not limited to, the following: Review the draft reports of the AE and CSS-HERA subcommittees.
Pub. L. 92-463, 1, Oct. 6, 1972, 86 Stat. 770.
Environmental Protection Agency (EPA).
Notice.
EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.
Comments must be received on or before May 21, 2021.
Submit your comments, identified by docket identification (ID) number and the File Symbol of interest as shown in the body of this document, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Charles Smith, Biopesticides and Pollution Prevention Division (7511P), main telephone number: (703) 305-7090, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
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EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the provisions of FIFRA section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by the Agency on these applications. For actions being evaluated under EPA's public participation process for registration actions, there will be an additional opportunity for public comment on the proposed decisions. Please see EPA's public participation website for additional information on this process (
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7 U.S.C. 136
Export-Import Bank of the United States.
Submission for OMB review and comments request.
The Export-Import Banks of the United States (EXIM), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
Comments must be received on or before June 21, 2021 to be assured of consideration.
Comments may be submitted electronically on
To request additional information, please Jean Fitzgibbon. 202-565-3620.
The Export-Import Bank of the United States, pursuant to the Export-Import Bank Act of 1945, as amended (12 U.S.C. 635, et.seq.), facilitates the finance of the export of U.S. goods and services. The “Report of Premiums Payable for Exporters Only” form will be used by exporters to report and pay premiums on insured shipments to various foreign buyers.
The Application for Short Term Letter of Credit Export Credit Insurance Policy is used to determine the eligibility of the applicant and the transaction for EXIM assistance under its insurance program. EXIM customers are able to submit this form on paper or electronically.
The application tool can be reviewed at:
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before June 21, 2021. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Under 47 CFR 1.929(c)(1) of the Commission's rules, any increase in the composite interference contour (CIC) of a site-based licensee in the Paging and Radiotelephone Service, Rural Radiotelephone Service, or 800 MHz Specialized Mobile Radio Service is a major modification of a license that requires prior Commission approval.
However, in February 2005, the Commission adopted and released final rules which amended section 1.929(c)(1) to specify that expansion of a composite interference contour (CIC) of a site-based licensee in the Paging and
In September 2011, the Commission's Media Bureau (Bureau) had released an MDCL Public Notice, in which it stated that it would permit AM stations, by rule waiver or experimental authorization, to use MDCL control technologies, which are transmitter control techniques that vary either the carrier power level or both the carrier and sideband power levels as a function of the modulation level. This allows AM licensees to reduce power consumption while maintaining audio quality and their licensed station coverage areas.
There are two basic types of MDCL control technologies. In one type, the carrier power is reduced at low modulation levels and increased at higher modulation levels. In the other type, there is full carrier power at low modulation levels and reduced carrier power and sideband powers at higher modulation levels. Use of any of these MDCL control technologies reduces the station's antenna input power to levels not permitted by Section 73.1560(a) of the Commission's rules.
The MDCL Public Notice permitted AM station licensees wanting to use MDCL control technologies to seek either a permanent waiver of Section 73.1560(a) for those licensees already certain of the particular MDCL control technology to be used, or an experimental authorization pursuant to Section 73.1510 of the Rules for those licensees wishing to determine which of the MDCL control technologies would result in maximum cost savings and minimum effects on the station's coverage area and audio quality. Between release of the MDCL Public Notice and release of the Notice of Proposed Rule Making in MB Docket No. 13-249, FCC 13-139 (NPRM), 33 permanent waiver requests and 20 experimental requests authorizing use of MDCL control technologies had been granted by the Bureau.
AM station licensees using MDCL control technologies have reported significant savings on electrical power costs and few, if any, perceptible effects on station coverage area and audio quality. Accordingly, the NPRM tentatively concluded that use of MDCL control technologies reduces AM broadcasters' operating costs while maintaining a station's current level of service to the public, without interference to other stations. The Commission, therefore, proposed to allow an AM station to commence operation using MDCL control technology by notification to the Commission, without prior Commission authority. Consistent with the Commission's new rule allowing AM broadcasters to implement MDCL technologies without prior authorization, by electronic notification within 10 days of commencing MDCL operations, the Commission created FCC Form 338, AM Station Modulation Dependent Carrier Level (MDCL) Notification. In addition to the standard general contact information, FCC Form 338 solicits minimal technical data, as well as the date that MDCL control operation commenced. This information collection regarding FCC Form 338 needs OMB review and approval.
The following rule section is covered by this information collection: 47 CFR 73.1560(a)(1) specifies the limits on antenna input power for AM stations. AM stations using MDCL control technologies are not required to adhere to these operating power parameters. AM stations may, without prior Commission authority, commence MDCL control technology use, provided that within ten days after commencing such operation, the licensee submits an electronic notification of commencement of MDCL operation using FCC Form 338.
The Commission is now requesting a three-year extension for this collection from the Office of Management and Budget (OMB).
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
Written PRA comments should be submitted on or before June 21, 2021. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
(1) The applicant's name;
(2) The names of the applicant's officers and directors;
(3) The business address of the applicant;
(4) The name and contact information of a designated contact for the applicant;
(5) A description of the geographic area that the applicant proposes to serve;
(6) The PEG channel capacity and capital support proposed by the applicant;
(7) The term of the agreement proposed by the applicant;
(8) Whether the applicant holds an existing authorization to access the public rights-of-way in the subject franchise service area;
(9) The amount of the franchise fee the applicant offers to pay; and
(10) Any additional information required by applicable state or local laws.
The information collection requirements contained in 47 CFR 76.41(d) states when a competitive franchise applicant files a franchise application with a franchising authority and the applicant has existing authority to access public rights-of-way in the geographic area that the applicant proposes to serve, the franchising authority grant or deny the application within 90 days of the date the application is received by the franchising authority. If a competitive franchise applicant does not have existing authority to access public rights-of-way in the geographic area that the applicant proposes to serve, the franchising authority must perform grant or deny the application within 180 days of the date the application is received by the franchising authority. A franchising authority and a competitive franchise applicant may agree in writing to extend the 90-day or 180-day deadline, whichever is applicable.
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Thursday, April 22, 2021, which is scheduled to commence at 10:30 a.m.
Due to the current COVID-19 pandemic and related agency telework and headquarters access policies, this meeting will be in a wholly electronic format and will be open to the public on the internet via live feed from the FCC's web page at
The meeting will be webcast with open captioning at:
Additional information concerning this meeting may be obtained from the Office of Media Relations, (202) 418-0500. Audio/Video coverage of the meeting will be broadcast live with open captioning over the internet from the FCC Live web page at
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the FDIC may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The FDIC wishes to conduct another Small Business Lending Survey and as part of its obligations under the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to take this opportunity to comment on the reinstatement of the related information collection described below (OMB Control No. 3064-0203).
Comments must be submitted on or before June 21, 2021.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Manny Cabeza, Regulatory Counsel, 202-898-3767,
Proposal to reinstate the following collections of information:
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The FDIC's Small Business
In addition, SBLS 2022 will
The proposed SBLS 2022
Questions in the first three
The SBLS 2022 collection is scheduled to be in the field beginning in May 2022. The collection will be administered by the U.S. Census Bureau via a web interface. Recommendations for which bank staff to answer each section will be made to respondents in order to match the appropriate expertise to relevant questions. Because the SBLS is designed as a nationally-representative survey of banks of all sizes, including community banks, regional banks, and large nationwide banks, the survey is intended be used to make inferences for the entire industry regarding U.S. banks' small business lending activity and practices.
Prior to finalizing the
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the
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Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on a revision and renewal concerning construction wage rate requirements—price adjustment (Actual Method). DoD, GSA, and NASA invite comments on: whether the proposed collection of information is necessary for the proper performance of the functions of Federal Government acquisitions, including whether the information will have practical utility; the accuracy of the estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. OMB has approved this information collection for use through September 30, 2021. DoD, GSA, and NASA propose that OMB extend its approval for use for three additional years beyond the current expiration date.
DoD, GSA, and NASA will consider all comments received by June 21, 2021.
DoD, GSA, and NASA invite interested persons to submit comments on this collection through
Zenaida Delgado, Procurement Analyst, at telephone 202-969-7207, or
9000-0154, Construction Wage Rate Requirements—Price Adjustment (Actual Method).
This clearance covers the information that contractors must submit to comply with the following Federal Acquisition Regulation (FAR) requirements:
• 52.222-32, Construction Wage Rate Requirements-Price Adjustment (Actual Method). This clause requires contractors to submit at the exercise of each option to extend the term of the contract, a statement of the amount claimed for incorporation of the most current Department of Labor wage determination, and any relevant supporting data, including payroll records, that the contracting officer may reasonably require.
Contracting officers use the information to establish the contract's construction requirements price adjustment to reflect the contractor's actual increase or decrease in wages and fringe benefits.
Office of Planning, Research, and Evaluation, Administration for Children and Families, HHS.
Request for public comment.
The Administration for Children and Families (ACF) at the U.S. Department of Health and Human Services (HHS) seeks approval to collect information for the Early Head Start-Child Care Partnerships Sustainability Study.
Copies of the proposed collection of information can be obtained and comments may be forwarded by emailing
Sec. 645A and 649 of the Improving Head Start for School Readiness Act of 2007.
Office of Child Support Enforcement; Administration for Children and Families; HHS.
Request for public comment.
The Administration for Children and Families (ACF) is requesting a 3-year extension of the Interstate Administrative Subpoena and Notice of Interstate Lien forms (OMB #0970-0152, expiration 7/31/2021). There are no changes requested to these forms.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
42 U.S.C. 652; 42 U.S.C. 654.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the cooperative agreements, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Cybersecurity and Infrastructure Security Agency (CISA), Department of Homeland Security (DHS).
Notice of Federal Advisory Committee Act (FACA) meeting; request for comments.
CISA announces a public meeting of the President's National Infrastructure Advisory Council (NIAC). To facilitate public participation, CISA invites public comments on the agenda items and any associated briefing materials to be considered by the council at the meeting.
The meeting will be held remotely via conference call. For access to the conference call bridge, information on services for individuals with disabilities, or to request special assistance to participate, please email
Comments identified by docket number CISA-2021-0006 may be submitted by any of the following methods:
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A public comment period is scheduled to be held during the meeting from 3:05 p.m.-3:15 p.m. EST. Speakers who wish to participate in the public comment period must register by emailing
Rachel Liang,
The NIAC is established under Section 10 of E.O. 13231 issued on October 16, 2001. Notice of this meeting is given under the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix (Pub. L. 92-463). The NIAC shall provide the President, through the Secretary of Homeland Security, with advice on the security and resilience of the Nation's critical infrastructure sectors.
Requests to attend via conference call will be accepted and processed in the order in which they are received. Individuals may register to attend the NIAC meeting by phone by sending an email to
While this meeting is open to the public, participation in FACA deliberations are limited to council members. A public comment period will be held during the meeting from approximately 3:05 p.m.-3:15 p.m. EST. Speakers who wish to comment must register in advance and can do so by emailing
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, please contact
U.S. Immigration and Customs Enforcement, Department of Homeland Security.
30-Day notice.
In accordance with the Paperwork Reductions Act (PRA) of 1995 the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance. This information collection was previously published in the
Comments are encouraged and will be accepted until May 21, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of the publication of this notice to
For specific questions related to collection activities, please contact Sharon Synder, Student and Exchange Visitor Program, 703-603-3400 or 1-800-892-4829, email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until June 21, 2021.
All submissions received must include the OMB Control Number 1615-0060 in the body of the letter, the agency name and Docket ID USCIS-2008-0021. Submit comments via the Federal eRulemaking Portal website at
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, telephone number (240) 721-3000 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking
You may access the information collection instrument with instructions or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Geological Survey, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Geological Survey (USGS) are proposing renew an information collection. As required by the Paperwork Reduction Act (PRA) of 1995, and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC.
Interested persons are invited to submit comments on or before May 21, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request additional information about this ICR, contact Rudy Schuster, Branch Chief by email at
In accordance with the PRA and 5 CFR 1320.8(d)(1), we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the USGS; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the USGS enhance the quality, utility, and clarity of the information to be collected; and (5) how might the USGS minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before
To protect the confidentiality and privacy of survey respondents, the data from the survey will not be associated with any respondent's email address at any time and will only be analyzed and reported in aggregate. All files containing PII will be password-protected, housed on secure USGS servers, and only accessible to the research team. The data from the survey will be aggregated and statistically analyzed and the results will be published in publicly available USGS reports.
An agency may not conduct, or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Indian Affairs, Interior.
Notice.
The Bureau of Indian Affairs (BIA) approved the Standing Rock Sioux Tribe Leasing Ordinance under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into business, residential, wind and solar leases without further BIA approval.
BIA issued the approval on April 14, 2021.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1001 Indian School Road NW, Albuquerque, NM 87104,
The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the Indian Long-Term Leasing Act of 1955, 25 U.S.C. 415. The HEARTH Act authorizes Tribes to negotiate and enter into business leases of Tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating Tribes develop Tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The HEARTH Act requires the Secretary to approve Tribal regulations if the Tribal regulations are consistent with the Department of the Interior's (Department) leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary—Indian Affairs, has approved the Tribal regulations for the Standing Rock Sioux Tribe of North & South Dakota.
The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian Tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and Tribal sovereignty. 77 FR 72,440, 72,447-48 (December 5, 2012). The principles supporting the Federal preemption of
Section 5 of the Indian Reorganization Act, 25 U.S.C. 5108, preempts State and local taxation of permanent improvements on trust land.
The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to “allow Tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in Tribal communities.” 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes “flexibility to adapt lease terms to suit [their] business and cultural needs” and to “enable [Tribes] to approve leases quickly and efficiently.” H. Rep. 112-427 at 6 (2012).
Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self-determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy.
Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing.
Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Standing Rock Sioux Tribe of North & South Dakota.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior's Bureau of Land Management (BLM) Alaska Resource Advisory Council (RAC) will meet as indicated below.
The Alaska RAC will hold a virtual meeting on May 25, 2021. The meeting will be held from 9 a.m. to 5 p.m., but may end earlier or later depending on the needs of group members.
The meeting will be held online through the Zoom meeting application. The public can watch the meeting and provide comments through this link:
Meeting links, guidance for attendees and the final agenda will be available on the BLM Alaska RAC web page at
Melinda Bolton, RAC Coordinator, by telephone at (907) 271-3342, or by email at
The 15-member Alaska RAC serves in an advisory capacity concerning issues relating to land use planning and the management of the public land resources located within the State of Alaska. All meetings are open to the public in their entirety. The meeting
Interested persons may make oral presentations to the RAC during the meeting or file written statements. Such requests should be made to the RAC Coordinator Melinda Bolton prior to the public comment period. Depending on the number of people who wish to speak and the time available, the time for individual comments may be limited. Individuals who plan to attend and need further information about the meetings, or special assistance such as sign language interpretation or other reasonable accommodations, may contact Melinda Bolton (see
Before including your address, phone number, email address, or other personal identifying information in your comments, please be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
43 CFR 1784.4-2.
Office of Natural Resources Revenue (“ONRR”), Interior.
Notice of information collection; request for comment.
In accordance the Paperwork Reduction Act of 1995 (“PRA”), ONRR is proposing to renew an information collection. Currently, this information collection is authorized by the Office of Management and Budget (“OMB”) under OMB Control Number 1012-0002, which expires on February 28, 2022. This Information Collection Request (“ICR”) pertains to the valuation of oil and gas produced from leases on Indian lands, Indian oil and gas royalties, and required recordkeeping for oil and gas valuation and royalties for Indian Tribes and allottees. ONRR uses forms ONRR-4109, ONRR-4110, ONRR-4295, ONRR-4393, ONRR-4410, and ONRR-4411 as part of these information collection requirements.
Interested persons are invited to submit comments on or before June 21, 2021.
All comment submissions must (1) reference “OMB Control Number 1012-0002” in the subject line; (2) be sent to ONRR before the close of the comment period listed under
•
•
To request additional information about this ICR, please contact Mr. Glen Reese, Reference & Reporting Management, ONRR, by telephone (303) 231-3160, or by email to
Pursuant to the PRA, 44 U.S.C. 3501,
ONRR is especially interested in public comments addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of ONRR's estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. ONRR will include or summarize each comment in its request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask ONRR in your comment to withhold your personal identifying information from public
(1)
ONRR and Tribal audit personnel use the information collected on form ONRR-4110 to evaluate (1) whether lessee-reported transportation allowances are within regulatory allowance limitations and calculated accurately under applicable regulations; and (2) whether the lessee has reported and paid the proper royalty amount. A lessee must use form ONRR-4110 when its transportation allowance includes costs incurred under non-arm's-length or no-contract transportation situations.
(2)
(a) ONRR and Tribal audit personnel use the information collected on form ONRR-4109,
(b) ONRR and Tribal audit personnel use the information collected on form ONRR-4295,
(c) A lessee must use form ONRR-4410,
(d) A lessee uses form ONRR-4411,
(3)
The requirement to report is mandatory for form ONRR-4410 and, under certain circumstances, form ONRR-4411. To obtain certain benefits, a lessee must file forms ONRR-4109, ONRR-4110, ONRR-4295, and ONRR-4393.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the PRA (44 U.S.C. 3501,
Office of Natural Resources Revenue (ONRR), Interior.
Notice of Information Collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995 (“PRA”), ONRR is proposing to renew an information collection. Currently, the information collection is authorized by the Office of Management and Budget (“OMB”) under OMB Control Number 1012-0001, which expires on February 28, 2022. Through this Information Collection Request (“ICR”), ONRR seeks renewed authority to collect information related to the paperwork requirements under the Chief Financial Officers Act of 1990 (“CFO Act”) covering the collection of royalties and other mineral revenues due, which obligations are accounted for as accounts receivables.
Interested persons are invited to submit comments on or before June 21, 2021.
All comment submissions must (1) reference “OMB Control Number 1012-0001” in the subject line; (2) be sent to ONRR before the close of the comment period listed under
•
•
To request additional information about this ICR, please contact Ms. Jennifer Dougherty, Financial Management, RRCM, ONRR by email at
Pursuant to the PRA, 44 U.S.C. 3501,
As part of ONRR's continuing effort to reduce paperwork and respondent burdens, ONRR is inviting the public and other Federal agencies to comment on new, proposed, revised, and continuing collections of information in accordance with the PRA and 5 CFR 1320.8(d)(1). This helps ONRR assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand ONRR's information collection requirements and provide the requested data in the desired format.
ONRR is especially interested in public comments addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of ONRR's estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) How might the agency minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments that you submit in response to this notice are a matter of public record. ONRR will include or summarize each comment in its request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask ONRR in your comment to withhold your personal identifying information from public review, ONRR cannot guarantee that it will be able to do so.
The basis for the data that a company submits on forms ONRR-2014 and ONRR-4430 is generally available within the records of the lessee or others involved in developing, transporting, processing, purchasing, or selling such minerals. The information that ONRR collects under this ICR includes data necessary to ensure that ONRR's accounts receivables are accurately based on the value of the mineral production, as reported to ONRR on forms ONRR-2014 and ONRR-4430.
As part of CFO Act audits, the OIG or its agent selects a sample of accounts receivable items based on forms ONRR-2014 and ONRR-4430 and provides the sample items to ONRR. ONRR then identifies the company names and addresses for the sample items selected and creates accounts receivable confirmation letters. In order to meet the CFO Act's requirements, the letters must be on ONRR letterhead and the Deputy Director for ONRR, or his or her designee, must sign the letters. The letter requests third-party confirmation responses by a specified date on whether ONRR's accounts receivable records agree with royalty payor records for the following items: (1) Customer identification; (2) royalty invoice number; (3) payor assigned document number; (4) date of ONRR receipt; (5) original amount the payor reported; and (6) remaining balance due to ONRR. The OIG or its agent mails the letters to the payors, instructing them to respond directly to confirm the accuracy and validity of selected royalty receivable items and amounts. In turn, it is the responsibility of the payors to verify, research, and analyze the amounts and balances reported on their respective forms ONRR-2014 and ONRR-4430.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
United States International Trade Commission.
Notice.
April 9, 2021.
Lawrence Jones ((202) 205-3358), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
Effective September 23, 2020, the Commission established a general schedule for the conduct of the final phase of its investigations on prestressed concrete steel wire strand (“PC strand”) from Argentina, Colombia, Egypt, Indonesia, Italy, Malaysia, Netherlands, Saudi Arabia, South Africa, Spain, Taiwan, Tunisia, Turkey, Ukraine, and the United Arab Emirates,
final phase of the Commission's investigations and of a public hearing held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission subsequently issued its final determinations that an industry in the United States was materially injured by reason of imports of PC strand from Argentina, Colombia, Egypt, Netherlands, Saudi Arabia, Taiwan, Turkey, and the United Arab Emirates provided for in subheading 7312.10.30 of the Harmonized Tariff Schedule of the United States (“HTSUS”) that have been found by the Commerce to be sold in the United States at LTFV and subsidized by the government of Turkey. Commerce has issued final affirmative antidumping duty determinations with respect to PC strand from Indonesia,
For further information concerning these investigations see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207). Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
: These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on March 16, 2021, under section 337 of the Tariff Act of 1930, as amended, on behalf of InMode Ltd. of Israel and Invasix Inc. d/b/a InMode of Lake Forest, California. Supplements to the complaint were filed on April 1 and April 5, 2021. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain skin rejuvenation resurfacing devices, components thereof, and products containing the same by reason of infringement of a claim of U.S. Patent No. 10,799,285 (“the '285 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute. The complainants request that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Katherine Hiner, Office of the Secretary, Docket Services Division, U.S. International Trade Commission, telephone (202) 205-1802.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2020).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of claim 1 of the '285 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and the parties upon which the complaint is to be served:
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations is not a party to this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), as amended in 85 FR 15798 (March 19, 2020), such responses will be considered by the Commission if received not later than 20 days after the date of service by the complainants of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
Drug Enforcement Administration, Department of Justice.
Notice of application.
Research Triangle Institute, has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before June 21, 2021. Such persons may also file a written request for a hearing on the application on or before June 21, 2021.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on March 18, 2021, Research Triangle Institute, 3040 East Cornwallis Road, Hermann Building, Room 106, Research Triangle Park, North Carolina 27709, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substance synthetically only for distribution to its customers for research and analytical reference standards. No other activity for this drug code is authorized for this registration.
On October 20, 2016, a former Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to Mark A. Wimbley, M.D. (hereinafter, Respondent), of Costa Mesa, California. Administrative Law Judge (hereinafter, ALJ) Exhibit (hereinafter, ALJX) 1, (OSC) at 1. The OSC proposed the revocation of and denial of any pending application to modify or renew Respondent's Certificate of Registration No. BW5359004 pursuant to 21 U.S.C. 823(f) and 824(a)(4) for the reason that “[his] continued registration is inconsistent with the public interest, as that term is defined in 21 U.S.C. 823(f).”
The OSC alleged that Respondent issued prescriptions for controlled substances to four
The OSC further alleged that Respondent “continued the unlawful practices . . . even after [he] was arrested on December 15, 2015, and charged by the State of California with 12 felony counts of prescribing controlled substances without a legitimate medical purpose.”
The OSC notified Respondent of the right to request a hearing on the allegations or to submit a written statement, while waiving the right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option.
By letter dated November 11, 2016, Respondent timely requested a hearing. ALJX 2 (Request for Hearing), at 1. The matter was placed on the docket of the Office of Administrative Law Judges and assigned to Chief Administrative Law Judge John J. Mulrooney II (hereinafter, the Chief ALJ). On November 15, 2016, the ALJ established a schedule for the filing of prehearing statements. ALJX 3 (Order for Prehearing Statements), at 1-2. After requesting and being granted an extension of time, the Government filed its Prehearing Statement on December 7, 2016, and Respondent filed its Prehearing Statement on December 28, 2016. ALJX 6 (hereinafter, Govt Prehearing) and ALJX 8 (hereinafter, Resp Prehearing). On January 4, 2017, the Chief ALJ issued his Prehearing Ruling that, among other things, set out eight Stipulations already agreed upon and established schedules for the filing of additional joint stipulations and supplemental prehearing statements, which were filed by both the Respondent and the Government on December 28, 2016, and January 25, 2017, respectively. ALJX 11 (Prehearing Ruling), at 1-6; ALJX 9 (hereinafter, Resp Supp Prehearing); ALJX 7 (hereinafter, Govt Supp Prehearing). On January 27, 2017, the Government filed a Motion
The hearing in this matter spanned four days.
Having considered this matter in the entirety, I find that Respondent issued prescriptions beneath the applicable standard of care and outside of the usual course of the professional practice in California, in violation of federal law, and that Respondent also committed violations of state law.
I issue this Decision and Order based on the entire record before me. 21 CFR 1301.43(e). I make the following findings of fact.
Respondent is registered with the DEA as a practitioner-DW/30 in schedules II, IIN, III, IIIN, IV, and V under DEA Certificate of Registration No. BW5359004 at the registered address of 2900 Bristol, A 106, Costa Mesa, CA 92626. Government Exhibit (hereinafter, GX) 1 (Respondent's Certificate of Registration). This registration expired on May 31, 2018.
The Government's documentary evidence consisted primarily of medical records and pharmacy records and CURES reports related to three individuals treated by Respondent between October 2014 and July 2016. The Government called three witnesses: A DEA Diversion Investigator (hereinafter, the DI), who participated in the investigation of Respondent; a California State Investigator (hereinafter, the SI); and an expert witness, Dr. Timothy Munzing. RD, at 5-35.
The Government first presented the testimony of the DI, Tr. 15-140, who testified that she took over as the lead diversion investigator on the case during the execution of a search warrant on the Respondent's house in November 2015 on Respondent's residence, office and vehicles.
The DI also testified to her presence at a second state warrant on Respondent's Clinic and vehicles, which was executed on August 30, 2016. Tr. 33, 45; RD, at 9; GX 19 (State Search Warrant and Receipts). She stated that the office was “less organized” and there was “less stuff” than during the first warrant, and the medical records seized were “brought back to the DEA office.” Tr. 46. The DI further testified that the investigators “went through all the boxes page by page to identify the patients that we were searching for.” Tr. 58; RD, at 9. She stated that the J.M. and C.B. files in the Government Exhibits include records obtained from both warrants and the R.D. file contains records only obtained as a result of the second warrant, and further that Respondent did not notify her until recently that there were any additional documents for these patients. Tr. 50-56, 58; RD, at 10. The Government's evidence includes three patient files obtained through those search warrants. GX 4, 6, 10-12. The DI also testified to the accuracy of the prescription records that she obtained from pharmacies. Tr. 61-86; GX 3, 5, 7-9, 11, 13. Finally, the DI testified to the methodology she undertook in obtaining the CURES report of the patients and Respondent. Tr. 89-90; GX 20-23.
I agree with the Chief ALJ that the DI's testimony was “plausible, detailed, consistent, and without any obvious motive to fabricate.” RD, at 11. Therefore, I agree with the Chief ALJ that her “testimony is accorded full credibility.”
The Government also presented the testimony of the SI, who is an investigator with the Department of Healthcare Services in California. Tr. 142-185; RD, at 5-8. The SI testified that she was the lead investigator for the State of California and began an investigation when, “in November 2015, [her] department received a complaint from a Medi-Cal Beneficiary stating that his information was being used to fill prescription drugs, and on those prescriptions the prescriber was [Respondent].” Tr. 146. The SI stated that she went to the location on the prescriptions and found it empty and had obtained a state search warrant for a new office address, which was executed on August 30, 2016.
I agree with the Chief ALJ and find that the SI “had no obvious motivation to be anything but objective, and presented testimony that was sufficiently plausible, detailed, and internally consistent to be accorded full credibility in this recommended decision.” RD, at 7-8.
The Government's expert witness, Dr. Timothy Munzing, has been employed by Kaiser-Permanente for over thirty-one years, twenty-eight of which he has served as the family medicine program director. GX 16 (Curriculum Vitae of Dr. Munzing);
The Chief ALJ found, and I agree, that Dr. Munzing “presented testimony that was generally authoritative, consistent, well-supported, objective, and persuasive.” RD, at 35.
Respondent presented the testimony of two witnesses at the hearing, including his own. He also presented
Dr. Malik testified as to his familiarity with the term “prescription drug cocktail” and that he has prescribed opioid medications to over 500 patients. Tr. 588;
I agree with the Chief ALJ that “[a]lthough Dr. Malik presented as generally knowledgeable, certain aspects of his testimony undermined the confidence that could otherwise be afforded his opinions.” RD, at 54. For example, the Chief ALJ noted that Dr. Malik testified that he had no idea that a pharmacy could refuse to fill a prescription presented by a patient, which is “basic knowledge related to the regulation of controlled substance.”
His knowledge deficits in rudimentary aspects of the CSA and its regulations, his lack of specificity regarding where he located the key aspects of the Supplemental Files upon which he based his opinions and his willingness to reach into the future to essentially bootstrap prescribing decisions made in the past, were all factors that eroded the weight that can be afforded to his expert onions here, and make those opinions less persuasive than the opinions by the Government's expert, Dr. Munzing.
Respondent testified on his own behalf. Tr. 610-734; 860-912. He testified that he attended medical school at the University of California at Los Angeles and trained to become a surgeon, but was in a car accident and “couldn't really operate.” Tr. 864; RX 1, at 1-2 (Respondent's Curriculum Vitae). Respondent testified about the courses that he had taken “primarily on pain management” and future courses he planned on taking. Tr. 864-65; RX 1, at 3-18; RD, at 35. He also testified about a Medical Board of California disciplinary action, after which he was allowed to prescribe only Schedule V controlled substances. Tr. 871-72; RX 16 (Interim Suspension Order).
Regarding his medical records, Respondent testified that he “tried to be extremely well documented,” but that he “didn't have a specific system for them. I had the patients, their packets and notes, and they weren't necessarily all together. They might have been. Some might have been somewhere together.” Tr. 632, 683.
Respondent testified as to the legitimacy of the files for C.B., J.M. and R.D. in RX 3, 4, and 5 (Respondent's Supplemental Records).
When asked about whether Respondent had told the DI that all of the medical records should be in his office, Respondent first answered, “I may have.”
Respondent agreed that medical records should contain exam notes, progress notes, referrals, diagnostic testing, and medications prescribed, red flags, diversion review, and steps to resolve red flags, and that in California Schedule II prescriptions require certain information.
During the hearing, in evaluating whether to admit Respondent's Supplemental Records, the Chief ALJ stated that Respondent's credibility is a “mixed bag. I think he was frequently lacking in detail. He lost patience then answered questions that were not asked of him. Frequently, he would be responsive to his own counsel but almost intentionally unresponsive to Government's counsel.” Tr. 731-32. Further, in the RD, the Chief ALJ stated that, “he presented as a defensive, frequently non-responsive, vague
During the hearing, over the Government's objections,
In the RD, the Chief ALJ explained that:
While true that in administrative enforcement proceedings the subsequent discovery of additional medical files can (and often does) raise the potential specter of evidence manufactured to support deficient records, the records offered by the Respondent contained some pages that would have been difficult to manufacture after-the-fact, including test results originating from other offices stamped with facsimile transmittal information and forms that were apparently completed by the patients themselves which are dated before the last search took place.
I agree with the RD that Respondent's exhibits contained records that could not have been easily manufactured and appear to be legitimate.
Regarding the applicable standard of care in California, Dr. Munzing testified that on the first visit “one must determine essentially whether or not this patient actually has a legitimate need for whatever treatment you're going to do.” Tr. 213. “[F]or controlled substances the first thing you need to do is take a history.”
The Government included in its evidence the Medical Board of California, Guide to the Laws Governing the Practice of Medicine (7th Ed. 2013) (hereinafter, the Guide) and the Medical Board of California, Guidelines for Prescribing Controlled Substances for Pain (November 2014). GX 17, 18. Dr. Munzing testified that the guidelines for prescribing controlled substances are meant to “kind of say here's the things you need to do if you're actually going to prescribe controlled substances.” Tr. 235. Dr. Munzing further stated that “[y]ou don't have to do every single one of those, but if you're substantially complying with the standard of care—with the guidelines that would be the standard of care.” Tr. 228. Regarding documentation, he testified that “really, the medical record documentation, not only is it a law, is it a requirement, but I think it is that because it really is about patient safety . . . . it's for my own recollection of on this date and time this is what was going on.”
The California Guide to the Practice of Medicine sets forth guidelines in managing pain patients, which Dr. Munzing described provides “almost a outline of what I described a little bit ago. You need to do a history and a physical exam . . . then you come up with a treatment plan.” Tr. 247 (citing to GX 17, at 59-61). He also stated that the Guide requires that the practitioner “go over and discuss informed consent with the patient” and “periodic review.”
Regarding “red flags,” Dr. Munzing testified that they are “things that kind of are just potential factors for abuse, diversion, misuse” and include “doctor shopping, seeing multiple doctors getting controlled substance medications, pharmacy shopping, going to multiple pharmacies.” Tr. 256-57. When a practitioner is presented with a red flag, he has to “delve a little deeper” and “it depends on what the red flag is.”
Dr. Munzing also testified that “when an individual is either taking an opioid or a physician is prescribing it, it's vitally important to calculate the Morphine equivalent dosing (MME). What that does is it translates an opioid, whether it be Oxycodone, or Methadone, or whatever to a base number, which they use Morphine as the base number.”
Regarding the applicable standard of care in California for prescribing controlled substances, Respondent's expert, Dr. Malik, testified, “If there is no physical examination documented, if there is no history documented, if the doctor's not making a diagnosis, just giving the pain medications, that is breaching the standard of care.”
In general, Dr. Malik's and Dr. Munzing's expert opinions regarding the standard of care for prescribing opioids in California were often similar. They both used the Medical Board of California guidelines to formulate their opinions about whether Respondent had met the standard of care.
In a few areas, the experts diverged. Dr. Malik testified that it is not a breach of the standard of care to prescribe a trinity cocktail,
Overall, Dr. Malik testified that “[Respondent is] a very poor documenter” and that “[i]t really takes a lot of effort to gather all that information, and think that the documentation is poor on his side, but I also believe that he has followed if not all, most of the recommendations from the guidelines of the Medical Board of California.”
As the Chief ALJ found, issues with Dr. Malik's credibility made his “opinions less persuasive than the opinions by the Government's expert, Dr. Munzing.” RD, at 57;
Having read and analyzed all of the record evidence, I agree with the RD's conclusion and find substantial record evidence that Respondent prescribed controlled substances outside of the usual course of the professional practice and below the applicable standard of care in California. RD, at 93-94 (listing sustained allegations). Overall, I find that the record contains substantial evidence that Respondent issued
Dr. Munzing testified in detail as to the contents of each record in the Government's Exhibits for J.M. He stated that the records included documentation of “Past medical problems” filled out by the patient, but with no date. Tr. 264-65 (citing GX 4, at 1-2). The records contained an opioid risk tool, which was never added up.
Dr. Munzing also testified that if a patient is on “Norco
The Government alleged that Respondent issued a total of thirty-two controlled substance prescriptions on seven dates to J.M. outside the usual course of professional practice and in violation of California law, on October 30, 2014, November 10, 2014, November 20, 2014, November 9, 19 and 29, 2015, April 9, 2016, and April 19, 2016. OSC, at 2-3; RD, at 68-70.
On October 30, 2014, J.M. received a prescription for: 30 milligram tablets of Roxicodone at 55 tablets to be taken one four times a day; 80 milligram tablets of Oxycontin at 46 tablets to be taken one four times a day; 350 milligram tablets of Soma at 40 tablets to be taken one three times a day; and 10 milligram tablets of Valium at 90 tablets to be take one four times a day. Tr. 291-92 (citing GX 3, at 1). Dr. Munzing testified that the closest medical record that corresponded with this visit was on October 10, 2014, which was a pain assessment questionnaire. Tr. 292-93 (citing GX 4, at 19). He further testified that the controlled substance prescriptions were not issued within the California standard of care, because there was no documented “medical
On November 10, 2014, Respondent prescribed J.M. 40 tablets of Soma at 350 milligrams per tablet; 40 tablets Valium at 10 milligrams per tablet; 46 tablets of Oxycontin at 80 milligrams per tablet, and 60 tablets of Roxicodone at 30 milligrams per tablet. GX 3, at 3-4. Dr. Munzing testified that there were no corresponding records to demonstrate that Respondent had comported with the standard of care in issuing these prescriptions to J.M. He further testified that the note from the pharmacist on the prescriptions indicated that the pharmacist had spoken to Respondent and “he says patient's pain is not well controlled,” but that there was no indication in the patient records that J.M.'s pain was not controlled. Tr. 303 (citing GX 3, at 4). Dr. Munzing testified that these prescriptions also were concerning for being a trinity cocktail and having a morphine equivalent dosage of 495, which was “still way over the 100 milligram threshold.” Tr. 310-11. He stated that J.M. is “at extremely high risk for overdose and death with the dosage, not just the trinity, but the morphine-equivalent dosing that's you know, exceedingly high.”
On November 20, 2014, Respondent prescribed J.M. 40 tablets of Soma at 350 milligrams per tablet; 40 tablets Valium at 10 milligrams per tablet; 46 tablets of Oxycontin at 80 milligrams per tablet, and 60 tablets of Roxicodone at 30 milligrams per tablet. GX 3, 5-6. Dr. Munzing testified that nothing in the J.M.'s patient file in the Government's Exhibits justify the prescriptions. Tr. 312-13 (citing GX 4, at 17-20). He concluded that the controlled substance prescriptions were issued outside the standard of care in California for “the same reasons [he] mentioned for the previous two prescriptions,” including “the trinity cocktail, the morphine equivalent doing, as well as the fact that the progress notes—there's nothing there to medically justify the appropriateness of these medications.” Tr. 313.
On November 9, 2015, Respondent prescribed J.M. 40 tablets of Soma at 350 milligrams per tablet; 40 tablets Valium at 10 milligrams per tablet; 40 tablets of Oxycontin at 80 milligrams per tablet, and 55 tablets of Roxicodone at 30 milligrams per tablet. GX 3, 7-6. Dr. Munzing testified that the Government's evidence contained no patient records dated after June 24, 2015 for J.M. Tr. 313-14. On November 19, 2015, Respondent prescribed the same medications at the same dosages and amounts, except that the quantity of oxycodone was 40 tablets. GX 3, at 9-10; Tr. 315. On November 29, 2015, Respondent issued a prescription for the same medications at the same dosages and amounts as the previous prescription to J.M. GX 3, at 11-12. On April 9, 2016, and April 19, 2016, Respondent issued a prescription for the same medications at the same dosages at smaller amounts with the addition of Motrin 600 milligrams at 60 tablets.
In contrast to Dr. Munzing, Dr. Malik testified based on his review of Respondent's Exhibit 4 for J.M. in Respondent's Supplemental Records. Tr. 747. He stated that “if you gather all the information from all the progress notes, the documentation was giving me enough information to say it was within the standard of care.”
On cross examination, Dr. Malik stated that he reviewed RX 4 in preparing his expert report contained in RX 10, and that the records for J.M. in this exhibit ranged from November 19,
Based on the uncontroverted evidence presented by the Government, I find that the controlled substance prescriptions issued on October 30, 2014, November 10, November 20, 2014, and November 9, 2015,
The Government alleged that Respondent issued a total of thirty controlled substance prescriptions on fifteen dates to R.D. outside the usual course of professional practice and without a legitimate medical purpose and in violation of California law, on July 8, 15, 22, and 29 of 2015; November 4, 11, 18 and 25 of 2015; June 2, 11, 20 and 28 of 2016; and July 6, 14, and 22, 2016. OSC, at 5; RD, at 77-79.
The Government's evidence related to R.D. demonstrated a patient questionnaire, dated March 11, 2009. GX 10, at 3. There is a progress note form that “actually has more information on it,” but is undated. Tr. 328-29 (citing GX 10, at 4). The patient file also included an opioid risk tool, an undated, unnamed pain scale, a depression checklist, which shows “kind of on the border of mild depression,” and a patient agreement.
On July 8, July 15, July 22, July 28, 2015, Respondent prescribed R.D. 60 tablets of Norco at 10/350 milligrams per tablet. GX 7, 1-2, 3-4, 5-6, 7-8; Tr. 369-70. Further, the Government presented a dispensing report from White Front Pharmacy that also indicated that on each of these dates, Respondent prescribed R.D. 2 milligrams of alprazolam. GX 8, at 3; Tr.
On November 4, November 11, November 18, and November 25, 2015, Respondent prescribed R.D. 60 tablets of Norco at 10/350 milligrams per tablet GX 7, 9-10, 11-12, 13-14, 15-16; Tr. 379-85. On November 11, Respondent prescribed an additional 10 pills of 2 milligrams per pill of Xanax. GX 7, at 11. The Government presented a dispensing report from White Front Pharmacy that also indicated that on each of these dates, Respondent prescribed R.D. 10 tablets of alprazolam at 2 milligrams. GX 8, at 4; Tr. 382-83. Dr. Munzing testified that these prescriptions were “an extreme departure from the standard of care” based on the records and the amounts. Tr. 384.
On June 2, June 11, June 20, June 28, July 6, July 14, July 22, 2016, Respondent prescribed R.D. 55 tablets of Norco at 10/325 milligrams per tablet. GX 7, at 17-18, 19-20, 21-22, 23-24, 25-26, 27-28, 29-30; Tr. 386. Additionally, on June 2, and July 22, 2016, Respondent prescribed 9 pills of 2 milligrams per pill of Xanax. GX 7, at 17-18, 29-30. The Government presented a dispensing report from White Front Pharmacy that also indicated that on June 11, 20, July 6 and July 14, 2016, Respondent prescribed 9 tablets of alprazolam at 2 milligrams to R.D. GX 8, at 7; Tr. 387-88. Dr. Munzing testified that the closest records to the prescriptions for R.D. were dated April 13, 2016. Tr. 389. He further testified that all of these prescriptions were “prescribed outside the standard of care” due to the lack of documentation of the history, imaging, evaluation, and that the amount, although slightly lower than the previous amounts, were still “a pretty hefty amount” and raised concerns about diversion and abuse.
Dr. Munzing also testified that R.D.'s file included a “huge red flag”
Dr. Malik testified based on his review of Respondent's Exhibit 5 for R.D.
On cross examination, Dr. Malik stated that he reviewed RX 5 in preparing his expert report contained in RX 17, and that the records for R.D. in RX 5 ranged from August 26, 2015,
Based on the uncontroverted evidence presented by the Government, I find that the controlled substance prescriptions issued on July 8, 15, 22, and 29, 2015,
I generally agree with the Chief ALJ that the Government did not adequately demonstrate that the red flags that Dr. Munzing identified with respect to R.D. were unresolved in the prescriptions that coincided with and postdated Respondent's Supplemental Records, because Dr. Munzing never reviewed or opined on the Respondent's files to determine whether the red flags had been resolved. RD, at 82. However, Dr. Munzing identified what he described as a “huge red flag” regarding R.D.'s arrest for a DUI, GX 10, at 59, 68, which was documented by R.D. in the April 13, 2016 R.D. records in the Government's Exhibits, and which Dr. Munzing stated “needs a lot of explanation.” Tr. 397. Respondent's records for R.D. include dates from April 13, 2016, to July 6, 2016, RX 5, at 1-25, and yet, nowhere in these records, nor in the Government's Exhibits, are any notes that could possibly resolve the red flag of the DUI. There is no mention of alcohol or a DUI on any of the Respondent's exhibits after this date. Dr. Malik testified that a DUI would be a potential red flag, and that “after fair warning, the physician should stop prescribing these pain medications with the patient anymore, but there have to be significant red flags for that to happen” and also that these conversations with the patient need to be documented by the doctor. Tr. 794-96. It is apparent that both experts agreed that a DUI is a red flag and must be documented. My reading of the records in evidence shows no mention of the red flag of the DUI and I believe that both experts testified that the DUI must be addressed in some manner, which it is clear from the record that it was not. Therefore, I also find that the controlled substance prescriptions issued to R.D. after the admission that raised the red flag on April 13, 2016, were issued outside of the usual course of the professional practice and beneath the applicable standard of care.
The Government alleged that Respondent issued a total of eight controlled substance prescriptions on four dates to C.B. outside the usual course of professional practice and without a legitimate medical purpose and in violation of California law. OSC, at 7; RD, at 86.
Dr. Munzing testified that C.B.'s medical complaints seemed to be that she had a skiing accident, but that “[t]he timing of the accident seems to move through the records, whether it be in the late 1990s or early 2000s.”
On January 6, January 25, Respondent prescribed C.B. 60 tablets of Vicodin at 7.5/300 milligrams per tablet and 30 tablets of Soma at 350 milligrams per tablet. GX 11, at 1-2, 3-4; Tr. 443-45. Dr. Munzing testified that these prescriptions do not meet the standard of care in California, because “there's no progress note or evidence that supports the medical justification.” Tr. 446. On February 11, 2016, Respondent prescribed C.B. 55 tablets of Vicodin at 7.5/300 milligrams per tablet and 55 tablets of Soma at 350 milligrams per tablet. GX 11, at 5-6. Dr. Munzing again testified that this prescription did not meet the standard of care in California, due to the lack of documentation. Tr. 447-48 (citing GX 12, at 325 (Patient records for C.B. dated January 27, 2016)). On March 3, 2016, Respondent prescribed C.B. 50 tablets of Vicodin at 7.5/300 milligrams per tablet and 30 tablets of Soma at 350 milligrams per tablet. GX 11, at 7-8. Dr. Munzing testified that this visit “does not fall within the standard of care, though in re-review in preparation for this hearing, I think that for this one visit, I would call this a simple departure . . . .” Tr. 449 (citing GX 12, at 322-24 (Patient records for C.B. dated March 3, 2016)).
Dr. Malik testified that C.B. was prescribed the “trinity cocktail” for brief period of time, but that “for that particular patient, these three medications for a certain period of time after the breast surgery in a patient whose body is already used to a high dose of opiates I think brought enough comfort to her pain.” Tr. 745. He testified that “[Respondent's] documentation was probably very down there, pretty bad, but . . . if I can gather all the information from all the records . . . I will say it was all within the standard of care.”
The Chief ALJ found that Respondent's Supplemental Records contained notes that correspond with all of the prescriptions and dates included in the OSC for C.B. RD, at 86 (citing GX 12 and RX 3). I agree with the Chief ALJ that because Dr. Munzing did not consider the detailed records in the Respondent's Supplemental Records and the Government did not present expert testimony regarding whether the Supplemental Records resolved the standard of care issues that Dr. Munzing had identified in the Government's Exhibits, “Dr. Malik's testimony that the prescribing to C.B. on those dates was within the standard of care based upon a review of that documentation stands unrefuted.” RD, at 88.
However, the Chief ALJ found, and I agree, that based on the uncontroverted testimony of Dr. Munzing, that the records for Schedule II
Overall, I find that the record contains substantial evidence to support the finding that Respondent issued numerous controlled substance prescriptions to J.M. and R.D. outside the usual course of the professional practice and beneath the applicable standard of care and in violation of several California laws and that Respondent issued controlled substance prescriptions to C.B. without complying with California law.
Under Section 304 of the CSA, “[a] registration . . . to . . . dispense a controlled substance . . . may be suspended or revoked by the Attorney General upon a finding that the registrant . . . has committed such acts as would render his registration under section 823 of this title inconsistent with the public interest as determined by such section.” 21 U.S.C. 824(a)(4). In the case of a “practitioner,” defined in 21 U.S.C. 802(21) to include a “physician,” Congress directed the Attorney General to consider the following factors in making the public interest determination:
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The applicant's experience in dispensing . . . controlled substances.
(3) The applicant's conviction record under Federal or State laws relating to the . . . distribution[ ] or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
According to Agency decisions, I “may rely on any one or a combination of factors and may give each factor the weight [I] deem[ ] appropriate in determining whether” to revoke a registration.
Under DEA's regulation, “[a]t any hearing for the revocation . . . of a registration, the . . . [Government] shall have the burden of proving that the requirements for such revocation . . . pursuant to . . . 21 U.S.C. [§ ] 824(a) . . . are satisfied.” 21 CFR 1301.44(e). In this matter, while I have considered all of the factors, the Government's evidence in support of its
In determining the public interest, the “recommendation of the appropriate State licensing board or professional disciplinary authority . . . shall be considered.” 21 U.S.C. 823(f)(1). Two forms of recommendations appear in Agency decisions: (1) A recommendation to DEA directly from a state licensing board or professional disciplinary authority (hereinafter, appropriate state entity), which explicitly addresses the granting or retention of a DEA COR; and (2) the appropriate state entity's action regarding the licensure under its jurisdiction on the same matter that is the basis for the DEA OSC.
In this case, neither the Medical Board of California (hereinafter, the State Board) nor any other state entity has made a direct recommendation to the Agency regarding whether the Respondent's registration should be suspended or revoked. However, during the hearing, Respondent introduced an “Interim Suspension Order” (hereinafter, Suspension Order) issued by the State of California Office of Administrative Hearings on December 7, 2016. RD, at 95 (citing RX 16). The Suspension Order stated that “Respondent shall not prescribe any Schedule II, III, or IV controlled substances.” RX 16, at 7. Respondent argued that “a petition for Interim Suspension Order to stop [Respondent] from practicing altogether was denied by the California Medical Board after they found he was not a danger to public safety, and [Respondent] is permitted to continue practicing medicine.” Resp Posthearing, at 7.
The fact that the State Board did not choose to immediately suspend Respondent's state medical license carries minimal-to-no weight under Factor One, because there is no evidence that the State Board would have made the same decision after a full hearing on the merits was completed, and additionally, the State Board did significantly restrict Respondent's prescribing authority pending a full determination on the allegations.
According to the CSA's implementing regulations, a lawful prescription for controlled substances is one that is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a). The Supreme Court has stated, in the context of the CSA's requirement that schedule II controlled substances may be dispensed only by written prescription, that “the prescription requirement . . . ensures patients use controlled substances under the supervision of a doctor so as to prevent addiction and recreational abuse . . . [and] also bars doctors from peddling to patients who crave the drugs for those prohibited uses.”
In defense of Respondent's continued registration, he has submitted supplemental records, which are far more detailed than the records in the Government's Exhibits. RX 3-5. However, Respondent's Supplemental Records only address a subset of the prescriptions at issue in this case, and the Government has established through unrefuted expert testimony that the records that Respondent did not supplement constituted “an extreme departure from” the standard of care in California. Tr. 384. Even Respondent's own expert testified that the records in the Government's Exhibits alone did not justify the prescriptions to J.M.
The end result remains that Respondent issued numerous controlled substance prescriptions beneath the applicable standard of care and outside of the usual course of the professional practice in California. DEA decisions have found that “just because misconduct is unintentional, innocent, or devoid of improper motive, [it] does not preclude revocation or denial. Careless or negligent handling of controlled substances creates the opportunity for diversion and [can] justify the revocation of an existing registration . . .”
The violations I have found demonstrate that Respondent repeatedly violated the applicable standard of care and state law and that his conduct was not an isolated occurrence, but occurred with multiple patients.
The Respondent asserted that “[t]he fact is that [Respondent's] biggest failure was over documenting not under documenting.” Resp Posthearing, at 6. This is simply not true based on the facts on the record. If Respondent's Supplemental Records are legitimate, an assumption to which I have applied a large degree of latitude in this case, he has not presented supplemental records to support many of the controlled substances prescriptions in the Government's
“Diversion occurs whenever controlled substances leave `the closed system of distribution established by the CSA . . . .' ”
Furthermore, Agency decisions highlight the Agency's interpretation that “[c]onscientious documentation is
I find that in issuing prescriptions to J.M. and R.D. beneath the applicable standard of care and outside the usual course of the professional practice in California, Respondent violated 21 CFR 1306.04(a) (“A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice”).
California law also requires that a “prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice.” Cal. Health & Safety Code § 11153(a). Therefore, I find that, similarly to 21 CFR 1306.04(a), the record contains substantial evidence that Respondent violated this provision with respect to some of the prescriptions for J.M. and R.D. in
Additionally, California law states that “repeated acts of clearly excessive prescribing, furnishing, dispensing, or administering of drugs or treatment . . . as determined by the standard of the community of licensees is unprofessional conduct for a physician.” Cal. Bus. & Prof. Code § 725(a). The Chief ALJ opined, and I agreed, that the record contains substantial evidence that Respondent's prescribing to J.M. was excessive in violation of this California provision of law.
California Health & Safety Code § 11190(a) requires that practitioners who prescribe Schedule II controlled substances must keep certain specific records, to include, “[t]he character, including the name and strength, and quantity of controlled substances involved.” Cal. Health & Safety Code § 11190(a)(3) (Westlaw, current with all laws through Ch. 372 of 2020 Regular Session). I found above that Respondent's recordkeeping for all three patients—J.M., R.D. and C.B.—were missing elements of the required specific records, and therefore, I find that the record contains substantial evidence that Respondent was in violation of this provision of state law and this is evidence that Respondent's registration is not in the public interest under Factors 2 and 4.
Ultimately I find that the record contains substantial evidence that Respondent issued multiple prescriptions of high dosages of controlled substances to multiple patients beneath the applicable standard of care and outside the usual course of the professional practice and in violation of state law. I therefore find that Factors Two and Four weigh in favor of revocation.
Under Factor Five, the Administrator considers “[s]uch other conduct which may threaten the public health and safety.” 5 U.S.C. 823(f)(5). Although Factor Five is broad, DEA decisions have qualified its breadth by limiting the considerations made under that factor to those where there is “a substantial relationship between the conduct and the CSA's purpose of preventing drug abuse and diversion.”
The Government alleged that “[d]espite being arrested and charged for unlawfully prescribing, Respondent continued to prescribe to J.M., R.D., and C.B. in violation of state and federal law.” Govt Posthearing, at 39. Therefore, the Government argued that “it is thus clear that being arrested and later arraigned for allegedly unlawfully prescribing was not enough of a deterrent for Respondent to stop such conduct. That he would continue to do so highlights the egregious nature of his actions and heightens the probability that Respondent is `a probable or possible threat . . . to the public health and safety.' ”
Until Respondent had entered into an agreement with the Orange County District Attorney's Office on August 30, 2016, whereby he “agreed to not prescribe Schedule II-IV controlled substances,” it was not
Overall, I conclude that the Government has met its
Where, as here, the Government has met its
The CSA authorizes the Attorney General to “promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions under this subchapter.” 21 U.S.C. 871(b). This authority specifically relates “to `registration' and `control,' and `for the efficient execution of his functions' under the statute.”
In evaluating the degree of a respondent's acceptance of responsibility required to entrust him with a registration, in
Respondent's mitigating evidence has reduced the number of violations found in this case; however, I see no evidence from Respondent that demonstrates that he will “prevent the re-occurrence of similar acts.”
The Agency also looks to the egregiousness and extent of the misconduct which are significant factors in determining the appropriate sanction.
In sanction determinations, the Agency has historically considered its interest in deterring similar acts, both with respect to the respondent in a particular case and the community of registrants.
Here, there is insufficient evidence in the record to demonstrate that Respondent can be entrusted with a registration.
Accordingly, I shall order the sanctions the Government requested, as contained in the Order below.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration BW5359004 issued to Mark A. Wimbley, M.D. Further,
On September 19, 2019, the Drug Enforcement Administration (hereinafter, DEA or Government) Administrative Law Judge Charles Wm. Dorman (hereinafter, ALJ), issued an Order Granting Government's Motion for Summary Disposition and Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision (hereinafter, RD) on the action to revoke the DEA Certificate of Registration Number BJ5665281 of Michael Jones, M.D. The ALJ transmitted the record to me on October 15, 2019, and asserted that no exceptions were filed by either party. ALJ Transmittal Letter, at 1. Having reviewed and considered the entire administrative record before me, I adopt the ALJ's RD with minor modifications, where noted herein.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. BJ5665281 issued to Michael Jones, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending application of Michael Jones to renew or modify this registration, as well as any other pending application of Michael Jones, for additional registration in Louisiana. This Order is effective May 21, 2021.
The Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (“DEA”), issued an Order to Show Cause (“OSC”), dated June 19, 2019, proposing to revoke the Certificate of Registration (“COR”), Number BJ5665281, of Michael Jones, M.D. (“Dr. Jones” or “Respondent”), and to deny any applications for renewal or modification of such registration, and any applications for any other DEA registrations, pursuant to 21 U.S.C. 824(a)(5). The OSC alleges that revocation is warranted because Respondent has been mandatorily excluded from all federal health care programs under 42 U.S.C. 1320a-7(a).
The Office of Administrative Law Judges (“OALJ”) received a copy of the OSC on June 19, 2019. OSC, at 1. Dr. Jones, through counsel, filed a hearing request on July 19, 2019, the 30th day from the date of the OSC. Thus, Dr. Jones's hearing request was timely filed.
On July 19, 2019, I issued an Order for Prehearing Statements (“OPHS”), directing the parties to file prehearing statements and establishing a date for a telephonic prehearing conference. OPHS, at 1-2. The Government timely filed its prehearing statement on August 2, 2019. Dr. Jones did not file a prehearing statement by his deadline for doing so.
I conducted a telephonic prehearing conference with the parties on August 21, 2019. Following the conference, I issued a Prehearing Ruling (“PHR”), in which I directed Dr. Jones to file a prehearing statement and a motion for leave to file his prehearing statement out of time.
On August 26, 2019, Dr. Jones filed his prehearing statement along with a motion for leave to file his prehearing statement out of time. Because the Government did not file an opposition to Respondent's motion for out-of-time filing, on September 10, 2019, I issued an Order Granting Respondent's Motion for Out of Time Prehearing Statement and Notice Concerning Summary Disposition (“Order Concerning Summary Disposition”), which granted Respondent's motion for out-of-time filing as unopposed. My Order Concerning Summary Disposition also established a deadline for the Government to file a motion for summary disposition and for Dr. Jones to respond to the Government's motion for summary disposition.
The Government timely filed its Motion for Summary Disposition on September 13, 2019. Dr. Jones timely filed his Opposition to Government's Motion for Summary Disposition on September 18, 2019 (“Respondent's Opposition”). Accordingly, I base this ruling and Recommended Decision on the Government's Motion for Summary Disposition, Dr. Jones's Opposition, and the Administrative Record before me.
The issue in this case is whether the record as a whole establishes by a preponderance of the evidence that the DEA should revoke the Certificate of Registration of Michael Jones, M.D., No. BJ5665281/XJ5665281, and deny any applications for renewal or modification of such registration, and deny any applications for any other DEA registrations, pursuant to 21 U.S.C. 824(a)(5), because he has been excluded from federal health care programs under 42 U.S.C. 1320a-7(a).
During the telephonic prehearing conference, the parties agreed to the following stipulations (“Stip.”), which are accepted as facts in this proceeding:
1. Respondent is registered with the DEA as a practitioner-DW/30 in Schedules II through V under DEA Certificate of Registration BJ5665281/XJ5665281 with a registered address of 3405 Saint Claude Ave., New Orleans, LA 70117-6144, and a mailing address of 2433 Bedford Dr., New Orleans, LA 70131-4703. Respondent's registration expires by its terms on December 31, 2021.
2. On or about September 25, 2018, Judgment was entered against Respondent based on Respondent's conviction on one count of “Conspiracy to Commit Health Care Fraud,” in violation of 18 U.S.C. 1349, one count of “Conspiracy to Pay and Receive Illegal Health Care Kickbacks,” in violation of 18 U.S.C. 371, and seven counts of “Health Care Fraud,” in violation of 18 U.S.C. 1347 and 2.
3. Based on Respondent's conviction, the U.S. Department of Health and Human Services, Office of Inspector
4. Reinstatement of eligibility to participate in Medicare, Medicaid and all federal health care programs after exclusion by HHS/OIG is not automatic.
5. Respondent is currently excluded from participation in Medicare, Medicaid and all federal health care programs.
6. Respondent stipulates to the admissibility of Government Exhibits 1-4.
In its Motion for Summary Disposition, the Government argues that there is no dispute of material fact requiring an adversarial hearing. Gov't Summ. Disp., at 1, 5-6. Specifically, the Government notes that Dr. Jones does not dispute that he is currently excluded from federal health care programs under 42 U.S.C. 1320a-7(a).
In his Opposition, Dr. Jones argues that summary disposition is inappropriate because he appealed his conviction to the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”). Resp't Opposition, at 1. Although the Fifth Circuit has not yet ruled on Dr. Jones's appeal, his Opposition states that he believes his appeal has merit on the ground that the prosecution “failed to present sufficient evidence at trial to sustain his convictions.”
Under DEA precedent, “it is well-settled that when no question of material fact is involved, a plenary, adversary administrative proceeding involving evidence and cross-examination of witnesses is not obligatory.”
The “party moving for summary disposition `must show, with materials of appropriate evidentiary quality, that every state of facts is excluded save that which entitles [it] to relief.' ”
“A fact is `
The Administrative Record contains “reliable and probative evidence” to support the conclusion that there is no genuine issue of material fact requiring an adversarial hearing.
The Government attached evidence to its Motion for Summary Disposition corroborating the factual stipulations. Specifically, the Government attached a notarized Certification of Registration History (Exh. 1); a copy of the judgment entered by the District Court against Dr. Jones (Exh. 2); a copy of the HHS/OIG exclusion letter (Exh. 3); and a printout from the HHS/OIG website (Exh. 4).
The notarized Certification of Registration History, dated June 24, 2019, is signed by the Associate Chief of DEA's Registration and Program Support Section. Gov't Summ. Disp., Exh. 1, at 1. The Certification states that Dr. Jones is registered with the DEA as a practitioner-DW/30 to handle controlled substances in Schedules 2-5 under COR No. BJ5665281 and that DEA last approved the renewal of this registration on November 29, 2018.
The Government's next exhibit is the judgment entered by the District Court against Dr. Jones on September 25, 2018. The District Court's judgment form shows that Dr. Jones was found guilty of one count of conspiracy to commit health care fraud (18 U.S.C. 1349); one count of conspiracy to pay and receive illegal health care kickbacks (18 U.S.C. 371); and seven counts of health care fraud (18 U.S.C. 1347). Gov't Summ. Disp., Exh. 2, at 1. The judgment further ordered Dr. Jones to pay $347,525 in restitution to Medicare, and sentenced him to serve three years in prison followed by two years of supervised release.
Next, the Government attached a copy of the HHS/OIG exclusion letter, dated March 29, 2019. That letter shows that as a result of Dr. Jones's convictions, HHS excluded him from participating in Medicare, Medicaid, and all federal health care programs for ten years. Gov't Summ. Disp., Exh. 3, at 1. The letter explains that Dr. Jones's ten-year exclusion would become effective twenty days from the date of the letter.
The four exhibits attached to the Government's Motion are the same exhibits the Government identified in its prehearing statement.
To meet its burden for sanction under 21 U.S.C. 824(a)(5), the Government must show that Respondent is excluded from participating in Medicare, Medicaid, and all federal health care programs under one of the four bases for mandatory exclusion in 42 U.S.C. 1320a-7(a). Mandatory exclusion from a federal health care program under 42 U.S.C. 1320a-7(a) serves as an independent basis for revoking a DEA registration. 21 U.S.C. 824(a)(5);
Once the Government meets its burden, the issue becomes which sanction should DEA impose in light of considerations concerning acceptance of responsibility, mitigation, egregiousness, and deterrence.
As discussed above, there is no dispute that Dr. Jones is currently excluded from all federal health care programs under 42 U.S.C. 1320a-7(a)(1). There is no dispute because Dr. Jones does not contest the fact that HHS/OIG excluded him from eligibility to participate in all federal health care programs for ten years beginning on April 18, 2019. Stips. 3, 5. Thus, to defeat the Government's Motion, Dr. Jones must present “ `competent evidence that could be presented at trial' ” relevant to the issue of which sanction should DEA impose.
Instead, Dr. Jones responded to the Government's Motion with the same proposed evidence he raised in his Prehearing Statement. And despite the fact that Dr. Jones was allowed to file a prehearing statement after the original deadline for doing so, and despite my advice to him at the prehearing conference concerning the level of detail that his prehearing statement should contain, Dr. Jones filed a prehearing statement with only a single sentence of proposed testimony. That single sentence previewed that Dr. Jones would testify that he appealed his criminal sentence to the Fifth Circuit and he believes his conviction will be overturned.
Dr. Jones's appeal of his conviction has no bearing on the issues relevant to this case. First, the appeal of his conviction does not change the fact that beginning on April 18, 2019, HHS/OIG excluded him from federal health care programs for ten years. Furthermore, Dr. Jones's pending appeal does not change the fact that he is currently excluded
Rather than respond to the Government's Motion with probative evidence that bears on the issue of whether he can be trusted to handle controlled substances, Dr. Jones has collaterally attacked the criminal proceedings underlying his mandatory exclusion. A respondent cannot use DEA proceedings to collaterally attack proceedings litigated in another forum.
In sum, the Administrative Record contains substantial, undisputed evidence to establish a
Accordingly, the Government's Motion for Summary Disposition is
With respect to Dr. Jones's request in his Opposition to stay these proceedings until the resolution of his appeal, that request is
Once the Government makes a
Revoking a registration on the ground that the registrant has been mandatorily excluded from federal health care programs is discretionary.
The Government's evidence does not provide details concerning Dr. Jones's criminal misconduct; however, the District Court's judgment offers sufficient information to find that Dr. Jones committed fraudulent activity related to medical services. Dr. Jones was convicted of seven counts of violating 18 U.S.C. 1347 (“Health care fraud”). Gov't Summ. Disp., Exh. 2, at 1. The elements of this statute require proof that an individual knowingly or willfully executed a scheme “to defraud any health care benefit program,” or “to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program.” 18 U.S.C. 1347(a). Dr. Jones was further convicted of one count of violating 18 U.S.C. 371 (“Conspiracy to commit offense or to defraud United States”), which subjects persons who conspire “to commit any offense against the United States, or to defraud the United States,” to a maximum prison sentence of five years, or to payment of a fine, or both. The District Court's judgment specifies that Dr. Jones's violation of 18 U.S.C. 371 involved conspiracy to pay and receive illegal health care kickbacks. Gov't Summ. Disp., Exh. 2, at 1. The District Court sentenced Dr. Jones to three years' imprisonment, to be served, if practicable, after the term of imprisonment of his co-defendant.
Despite the lack of evidence that Dr. Jones's criminal misconduct involved controlled substances, the District Court's judgment shows that Dr. Jones defrauded Medicare of hundreds of thousands of dollars. This type of criminal misconduct raises serious concerns about Dr. Jones's integrity and honesty, especially in his dealings with government agencies, and justifies revocation even if his misconduct did not involve controlled substances.
In fact, DEA has previously revoked registrations for misconduct comparable to Respondent's.
Furthermore, the exclusion letter notes that HHS/OIG deemed Dr. Jones's criminal misconduct to be egregious enough to warrant an exclusion period in excess of the statutory minimum. Gov't Summ. Disp., Exh. 3, at 1-2. The exclusion letter explains that HHS/OIG excluded Dr. Jones for ten years instead of the statutory minimum of five years, because (1) Dr. Jones's fraudulent activity was intended to cause financial loss to a government agency of more than $50,000; (2) he committed the fraudulent activity over a period of six years; and (3) the District Court's sentence included imprisonment.
The DEA “carefully consider[s] mitigating evidence provided by the respondent” when deciding the appropriate sanction in a Medicare exclusion case.
In the face of Dr. Jones's exclusion, he has not presented any evidence to convince DEA that it can trust him with the privilege and responsibility to handle controlled substances. Dr. Jones fraudulently obtained hundreds of thousands of dollars from a United States government agency over a period of six years. Based on several aggravating circumstances, HHS/OIG found Dr. Jones's criminal activity to be sufficiently egregious to justify imposing a longer exclusion period than statutorily required. Dr. Jones has not responded with any indication that he intends to accept responsibility at the DEA hearing or that he feels remorse for his misconduct. In fact, Dr. Jones pled not guilty to the criminal charges and his position on appeal is that the prosecution failed to present enough evidence at trial. Gov't Summ. Disp., Exh. 2, at 1; Resp't Opposition, at 1. Pleading not guilty and then attacking the conviction on appeal is inconsistent with a respondent who accepts responsibility and feels remorse for his misconduct. Furthermore, Dr. Jones has not presented any mitigation evidence, to include evidence that he has taken steps to assure DEA that he will not engage in fraudulent activity in the future. In the absence of mitigation evidence demonstrating that DEA can entrust Dr. Jones with a registration, revocation is appropriate.
For these reasons, it is
Dated: September 19, 2019.
On June 1, 2020, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, Government), issued an Order to Show Cause (hereinafter, OSC) to Javaid A. Perwaiz, M.D. (hereinafter, Registrant) of Chesapeake, Virginia. OSC, at 1. The OSC proposed the revocation of Registrant's Certificate of Registration No. AP1844287. It alleged that Registrant is without “authority to handle controlled substances in Virginia, the state in which [Registrant is] registered with DEA.”
Specifically, the OSC alleged that according to the records of the Virginia Department of Health Professionals, Registrant's Virginia Medicine & Surgery license expired on March 31, 2020. OSC, at 2. The OSC further alleged that because Registrant's medical license was expired, Registrant no longer held authority to handle controlled substances in Virginia.
The OSC notified Registrant of the right to request a hearing on the allegations or to submit a written statement, while waiving the right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option.
In a Declaration dated August 5, 2020, a Diversion Investigator (hereinafter, DI) assigned to the Norfolk Resident Office of the Washington Field Division stated that she first attempted service of the OSC by forwarding a copy of the OSC to Registrant's legal counsel via email on June 2, 2020. Request for Final Agency Action (hereinafter RFAA), App. 8 (Declaration of DI), at 2. After nine days with no response, the DI called the office of Registrant's legal counsel and left a message with his staff regarding the OSC.
The Government forwarded its RFAA, along with the evidentiary record, to this office on August 6, 2020. In its RFAA, the Government represents that “despite [Registrant's legal counsel's] assurances to DEA personnel that a response would filed [sic] in response to the [OSC], more than [thirty days] have passed since Registrant received the [OSC]; however, Registrant has not submitted to DEA a request for hearing.”
Based on the DI's Declaration, the Government's written representations, and my review of the record, I find that the Government accomplished service of the OSC on Registrant on or before June 19, 2020. I also find that more than thirty days have now passed since the Government accomplished service of the OSC. Further, based on the Government's written representations, I find that neither Registrant, nor anyone purporting to represent the Registrant, requested a hearing, submitted a written statement while waiving Registrant's right to a hearing, or submitted a corrective action plan. Accordingly, I find that Registrant has waived the right to a hearing and the right to submit a written statement and corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, therefore, issue this Decision and Order based on the record submitted by the Government, which constitutes the entire record before me. 21 CFR 1301.43(e).
Registrant is the holder of DEA Certificate of Registration No. AP1844287 at the registered address of 3003 Churchland Boulevard, Chesapeake, VA 23321. RFAA, App. 1. Pursuant to this registration, Registrant is authorized to dispense controlled substances in schedules II through V as a practitioner.
According to the records of the Virginia Department of Health Professionals, Registrant's Virginia Medicine & Surgery License expired on March 31, 2020. RFAA, App. 3, at 1. Additionally, Registrant's license remained expired as of the date of the OSC. RFAA, App. 7, at 1.
According to Virginia's online records, of which I take official notice, Registrant's license is still expired.
Accordingly, I find that Registrant is not currently licensed to engage in the practice of medicine in Virginia, the state in which Registrant is registered with the DEA.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the CSA “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration.
This rule derives from the text of two provisions of the CSA. First, Congress defined the term “practitioner” to mean “a physician . . . or other person licensed, registered, or otherwise permitted, by . . . the jurisdiction in which he practices . . . , to distribute, dispense, . . . [or] administer . . . a controlled substance in the course of professional practice.” 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that “[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.” 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, the DEA has held repeatedly that revocation of a practitioner's registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the state in which he practices.
Under the Virginia Drug Control Act, a practitioner “shall only prescribe, dispense, or administer controlled substances in good faith for medicinal or therapeutic purposes within the course of his professional practice.” Va. Code 54.1-3408. The Virginia Drug Control Act also defines a “practitioner,” as “a physician . . . licensed, registered, or otherwise permitted to distribute, dispense, prescribe and administer, or conduct research with respect to a controlled substance in the course of professional practice or research in the Commonwealth.” Va. Code 54.1-3401. Further, under Virginia state law, a “physician” is defined as “a person licensed to practice medicine in the Commonwealth of Virginia or in the jurisdiction where the health care is to be rendered or withheld.” Va. Code 54.1-2981;
Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice medicine in Virginia. As already discussed, a physician must be a licensed practitioner to dispense a controlled substance in Virginia. Thus, because Registrant lacks authority to practice medicine in Virginia and, therefore, is not authorized to handle controlled substances in Virginia, Registrant is not eligible to maintain a DEA registration. Accordingly, I will order that Registrant's DEA registration be revoked.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. AP1844287 issued to Javaid A. Perwaiz. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending application of Javaid A. Perwaiz to renew or modify this registration, as well as any other pending application of Javaid A. Perwaiz, for additional registration in Virginia. This Order is effective May 21, 2021.
Drug Enforcement Administration, Department of Justice.
Notice of application.
Research Triangle Institute has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before May 21, 2021. Such persons may also file a written request for a hearing on the application on or before May 21, 2021.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.34(a), this is notice that on March 18, 2021, Research Triangle Institute, 3040 East Cornwallis Road, Hermann Building, Room 106, Research Triangle Park, North Carolina 22709-0000, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Scottsdale Research Institute has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before May 21, 2021. Such persons may also file a written request for a hearing on the application on or before May 21, 2021.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.34(a), this is notice that on January 28, 2021, Scottsdale Research Institute, 5436 East Tapekim Road, Cave Creek, Arizona 85331, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import Marijuana (7360) and Tetrahydrocannabinols (7370) as
The company plans to import fungi material from which Psilocybin (7437) and Psilocyn (7438) will be produced for further manufacturing prior to use in research and clinical trials. No other activity for these drug codes is authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Justice Management Division, United States Department of Justice.
Notice of a new system of records.
Pursuant to the Privacy Act of 1974 and Office of Management and Budget (OMB) Circular No. A-108, notice is hereby given that the Justice Management Division, (JMD), a component within the United States Department of Justice (DOJ or “the Department”), proposes to develop a new system of records notice titled, “DOJ Personnel Public Health Emergency Records System,” JUSTICE/JMD-025. JMD proposes to establish this system of records to protect the Department's workforce and respond to Coronavirus Disease 2019 (COVID-19), a declared public health emergency, and other high-consequence public health threats.
In accordance with 5 U.S.C. 552a(e)(4) and (11), this notice is effective upon publication, subject to a 30-day period in which to comment on the routine uses, described below. Please submit any comments by May 21, 2021.
The public, OMB, and Congress are invited to submit any comments by mail to the United States Department of Justice, Office of Privacy and Civil Liberties, ATTN: Privacy Analyst, Two Constitution Square (2CON), 145 N Street, NE, Suite 8W.300, Washington, DC 20530; by facsimile at 202-307-0693; or by email at
Michael H. Allen, Deputy Assistant Attorney General, Policy, Management, and Procurement, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001, (202) 514-3101.
This system of records covers information necessary and relevant to Department activities responding to and mitigating COVID-19 and other high-consequence public health threats, and diseases or illnesses relating to a public health emergency. Such information may include information on Department personnel, including employees, interns, and contractors, who have contracted or may have been exposed to a suspected or confirmed disease or illness that is the subject of a declared public health emergency or who undergo preventative testing for, or receive a vaccination to prevent, a disease or illness that is the subject of a declared public health emergency, in accordance with federal, state, or local public health orders. The information collected may include identifying and contact information of individuals who have been suspected or confirmed to have contracted a disease or illness, or who have been exposed to an individual who had been suspected or confirmed to have contracted a disease or illness, related to a declared public health emergency; individual circumstances and dates of suspected exposure; testing results, symptoms, and treatments; vaccination records; health status information; and other information necessary and relevant to Department activities responding to and mitigating COVID-19 and other high-consequence public health threats and diseases or illnesses relating to a public health emergency. The Department maintains this information to understand the impact of an illness or disease on the Department workforce, and to assist in reducing the spread of the disease or illness among Department personnel. In certain instances, depending on the type of record collected and maintained, records maintained in this system of records may also be covered by Office of Personnel Management/Government-10 Employee Medical File System Records, 75 FR 35,099 (June 21, 2010). However, JUSTICE/JMD-025 covers additional records—specifically records collected in response to COVID-19, a high-consequence public health threat, as well as other declared public health emergencies.
When collecting information on Department employees, there are several employment laws that govern the collection, dissemination, and retention of employee medical information. These employment laws include the Americans with Disability Act (ADA), the Rehabilitation Act of 1973 (Rehab Act), and the Occupational Safety and Health Act of 1970 (OSH Act). Generally, under federal employment laws, medical information pertaining to employees is confidential and may be obtained by an employer only for certain reasons and only at certain points in the employment relationship. In response to a high-consequence public health threat such as COVID-19, or relating to other public health emergencies, an employer may be permitted to collect certain employee medical information that it would not otherwise be permitted to collect, depending upon the circumstances. This system of records will apply if it is determined that the circumstances permit the Department to legally collect the employee medical information at issue.
Further, this system of records notice (SORN) includes a reference to the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. 2000ff to ff-11. Title II of GINA prohibits employment discrimination based on genetic information, including family medical history; restricts the circumstances under which employers may lawfully acquire applicants' and employees' genetic information; and prohibits the disclosure of applicants' and employees' genetic information, with limited exceptions, including those stated in 42 U.S.C. 2000ff-5(b) and 29 CFR 1635.9(b). The Department may request the circumstances of an individual's suspected or actual exposure to a disease or illness, including the source of exposure. Although it is not the intent for the Department to collect family medical information, an individual may indicate that they were exposed to specific family members who have been diagnosed with, or are suspected to have, the disease or illness in question. To the extent this information may be acquired inadvertently, such information will be kept as a “confidential medical record” and maintained separately from an employee's general medical files,
In accordance with 5 U.S.C. 552a(r), the Department has provided a report to OMB and Congress on this new system of records.
DOJ Personnel Public Health Emergency Records System, JUSTICE/JMD-025.
Controlled Unclassified Information.
Records may be maintained at all locations at which the Department of Justice (DOJ), or contractors on behalf of the Department, operate or at which DOJ operations are supported, including the Robert F. Kennedy Main Justice Department Building, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001.
Additionally, records may be maintained electronically at one or more of the Department's data centers, including, but not limited to, one or more of the Department's Core Enterprise Facilities (CEF), including, but not limited to, the Department's CEF East, Clarksburg, WV 26306, or CEF West, Pocatello, ID 83201. Records within this system of records may be transferred to a Department-authorized cloud service provider within the Continental United States. Access to these electronic records may occur at any location at which the DOJ operates or where DOJ Office of the Chief Information Officer (OCIO) operations are supported. Some or all of the information in the system may be duplicated at other locations where the Department has granted direct access to support DOJ operations, system backup, emergency preparedness, and/or continuity of operations. To determine the location of a particular record maintained in this system of records, contact the system manager, whose contact information is listed in the “SYSTEM MANAGER(S)” paragraph, below.
Michael H. Allen, Deputy Assistant Attorney General, Policy, Management and Procurement, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001, (202) 514-3101.
Workforce safety federal requirements, including the Occupational Safety and Health Act of 1970, Executive Order No. 12,196, Occupational safety and health programs for Federal employees, 5 U.S.C. 7902; federal laws related to a specific public health emergency or high-consequence public health threat, including, Executive Order No. 13,994, Ensuring a Data-Driven Response to COVID-19 and Future High-Consequence Public Health Threats, and federal laws that authorize the Attorney General to create and maintain federal records of agency activities, including 5 U.S.C. 301 and 44 U.S.C. 3101.
The purpose of this system is to maintain records necessary and relevant to Department activities responding to and mitigating COVID-19, other high-consequence public health threats, or diseases and illnesses relating to a public health emergency. Such records include those records needed to understand the impact of an illness or disease on the Department workforce, and to assist in protecting the Department's workforce from, and responding to, a declared public health emergency or other high-consequence public health threats. Among other things, DOJ may use the information collected to facilitate the provision of vaccines to DOJ personnel, including employees, interns, and contractors; to inform individuals who may have been in proximity of a person possibly infected with the disease or illness at or on buildings, grounds, and properties that are owned, leased, or used by the Department; or to confirm which personnel have received vaccinations to prevent such disease or illness to spread throughout the Department's workforce.
Department personnel, including employees, interns, and contractors.
Records maintained in this system may include:
A. Full name, telephone number, worksite, email address, supervisor's name, address and contact information and/or the contractor's supervisor/contracting officer representative name, address and contact information;
B. Date(s) and circumstances of the individual's suspected or actual exposure to disease or illness including symptoms, as well as locations within the Department workplace where an individual may have contracted or been exposed to the disease or illness;
C. Other individual information directly related to the disease or illness (
D. Appointment scheduling information, including the date, time and location of a scheduled appointment.
E. Medical screening information, including the individual's name, date of birth, age, category of employment, current medical status, vaccination history, and any relevant medical history.
F. Vaccination records, including the date, type, and dose of vaccine administered to the individual.
Records may be obtained from DOJ personnel and contractors who may provide relevant information on a suspected or confirmed disease or illness, or the prevention of such disease or illness, which is the subject of a declared public health emergency. Information may also be sourced from personnel at medical facilities, or from existing systems of records, including but not limited to OPM/GOVT-10, Employee Medical File System Records, 75 FR 35,099 (June 21, 2010), and modified at 80 FR 74,815 (Nov. 30, 2015).
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system of records may be disclosed as a routine use pursuant to 5 U.S.C. 552a(b)(3) under the circumstances or for the purposes described below, to the extent such disclosures are compatible with the purposes for which the information was collected:
A. To appropriate medical facilities, or federal, state, local, tribal, territorial or foreign government agencies, to the extent permitted by law, for the purpose of protecting the vital interests of individual(s), including to assist the United States Government in responding to or mitigating high-consequence public health threats, or diseases and illnesses relating to a public health emergency.
B. Where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature—the relevant records may be referred to the appropriate federal, state, local, territorial, tribal, or foreign law
C. In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body, when the Department determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
D. To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Federal Government, when necessary to accomplish an agency function related to this system of records.
E. To a former employee of the Department for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
F. To Federal, state, local, territorial, tribal, foreign, or international licensing agencies or associations which require information concerning the suitability or eligibility of an individual for a license or permit.
G. To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
H. To the National Archives and Records Administration for purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
I. To appropriate agencies, entities, and persons when (1) the Department suspects or has confirmed that there has been a breach of the system of records; (2) the Department has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Department (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
J. To another Federal agency or Federal entity, when the Department determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
K. To any agency, organization, or individual for the purpose of performing authorized audit or oversight operations of the Department and meeting related reporting requirements.
L. To such recipients and under such circumstances and procedures as are mandated by Federal statute or treaty.
All records in this system of records are maintained electronically and in paper and are in compliance with applicable executive orders, statutes, and agency implementing recommendations. Electronic records are stored in databases and/or on hard disks, removable storage devices, or other electronic media.
The Department will retrieve records by any of the categories of records, including name, location, date of vaccination, or work status.
To the extent applicable, to ensure compliance with Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Genetic Information Nondiscrimination Act of 2008 (GINA), medical information must be “maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 42 U.S.C. 12112(d)(3)(B); 42 U.S.C. sec 2000ff-5(a); 29 CFR 1630.14(b)(1), (c)(1), (d)(4)(i); and 29 CFR 1635.9(a). This means that medical information and documents must be stored separately from other personnel records. As such, the Department must keep medical records for at least one year from creation date. 29 CFR 1602.14. Further, records compiled under this SORN will be maintained in accordance with NARA General Records Schedule (GRS) 2.7, Items 010, 070 or 080, and NARA records retention schedules DAA-GRS2017-0010-0001, DAA-GRS2017-0010-0012, and DAA-GRS2017-0010-0013, to the extent applicable.
The Department safeguards records in this system according to applicable rules and polices, including all applicable DOJ automated systems security and access policies. The Department has imposed strict controls to minimize the risk of compromising the information that is being stored. Users of individual computers can only gain access to the data by a valid user identification and password. Paper records are maintained in a secure, access-controlled room, with access limited to authorized personnel.
All requests for access to records must be in writing and should be addressed to the Justice Management Division, ATTN: FOIA Contact, Department of Justice, Rm. 1111, 950 Pennsylvania Avenue NW, Washington, DC 20530-000, phone: 202-514-3101, email:
Although no specific form is required, you may obtain forms for this purpose from the FOIA/Privacy Act Mail Referral Unit, United States Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20530, or on the Department of Justice website at
More information regarding the Department's procedures for accessing records in accordance with the Privacy Act can be found at 28 CFR part 16 Subpart D, “Protection of Privacy and Access to Individual Records Under the Privacy Act of 1974.”
Individuals seeking to contest or amend records maintained in this system of records must direct their requests to the address indicated in the “RECORD ACCESS PROCEDURES” paragraph, above. All requests to contest or amend records must be in writing and the envelope and letter should be clearly marked “Privacy Act Amendment Request.” All requests must state clearly and concisely what record is being contested, the reasons for contesting it, and the proposed amendment to the record. Some information may be exempt from the amendment provisions as described in the “EXEMPTIONS PROMULGATED FOR THE SYSTEM” paragraph, below. An individual who is the subject of a record in this system of records may contest or amend those records that are not exempt. A determination of whether a record is exempt from the amendment provisions will be made after a request is received.
More information regarding the Department's procedures for amending or contesting records in accordance with the Privacy Act can be found at 28 CFR 16.46, “Requests for Amendment or Correction of Records.”
Individuals may be notified if a record in this system of records pertains to them when the individuals request information utilizing the same procedures as those identified in the “RECORD ACCESS PROCEDURES” paragraph, above.
None.
None.
Institute of Museum and Library Services, National Foundation for the Arts and the Humanities.
Submission for OMB Review, comment request.
The Institute of Museum and Library Services announces the following information collection has been submitted to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. This Notice proposes the clearance of the web-based National Medal for Museum and Library Service Nomination Form. A copy of the proposed information collection request can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the
OMB is particular interested in comments that help the agency to:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this Notice to
Connie Bodner, Ph.D., Director of Grants Policy and Management, Office of Grants Policy and Management, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, Suite 4000, Washington, DC 20024-2135. Dr. Bodner can be reached by telephone at 202-653-4636, or by email at
The Institute of Museum and Library Services (IMLS) is the primary source of federal support for the nation's libraries and museums. We advance, support, and empower America's museums, libraries, and related organizations through grant making, research, and policy development. To learn more, visit
Institute of Museum and Library Services, National Foundation for the Arts and the Humanities.
Notice, request for comments, collection of information.
The Institute of Museum and Library Services (IMLS), as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act. This pre-clearance consultation program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. By this notice, IMLS is soliciting comments concerning a plan to continue the IMLS Grants to States Program State Program Reporting System (SPR) electronic data collection which supports both the financial and performance reporting for all grantees. A copy of the proposed information collection request can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the addressee section below on or before June 20, 2021.
Send comments to Connie Bodner, Ph.D., Director of Grants Policy and Management, Office of Grants Policy and Management, Institute of Museum and Library Services, 955 L'Enfant Plaza North, SW, Suite 4000, Washington, DC 20024-2135. Dr. Bodner can be reached by telephone at 202-653-4636, by email at
Teresa DeVoe, Associate Deputy Director—State Programs, Office of Library Services, Institute of Museum and Library Services, 955 L'Enfant Plaza North, SW, Suite 4000, Washington, DC 20024-2135. Ms. DeVoe can be reached by telephone at 202-653-4778, by email at
IMLS is particularly interested in public comments that help the agency to:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques, or other forms of information technology,
The Institute of Museum and Library Services is the primary source of Federal support for the Nation's libraries and museums. We advance, support, and empower America's museums, libraries, and related organizations through grant making, research, and policy development. To learn more, visit
The Grants to States program is the largest source of Federal funding support for library services in the U.S. Using a population-based formula, more than $160 million is distributed among the State Library Administrative Agencies (SLAAs) every year. SLAAs are official agencies charged by law with the extension and development of library services, and they are located in each of the 50 States of the United States, the District of Columbia, the five Territories, and the three Freely Associated States.
This action is to renew clearance of the forms and instructions for the IMLS State Program Reporting System for the next three years. These forms include SPR Reporting System User Documentation; Grants to States Program Report; Financial Status Report; SPR Phase 3 Reporting; State Legal Officer's Certification of the Authorized Certifying Official; and internet Safety Certification for Applicant Public Libraries, Public Elementary and Secondary School Libraries, and Consortia with Public and/or Public School Libraries.
National Science Foundation.
Notice of application of emergency provision for hazardous waste to be stored at McMurdo Station, Antarctica for more than 15 months due to an emergency, pursuant to 45 CFR 671.17.
The Office of Polar Programs, National Science Foundation, is giving notice that an emergency relating to considerations of human health and safety caused hazardous waste to be stored at McMurdo Station for more than 15 months. Hazardous waste in the form of batteries, regulated medical waste, laboratory chemical waste, gas cylinders, paints and solvents, petroleum-based compounds and fuel contaminated soils, with an aggregate of
The waste was to be removed in February 2021, at the end of the 2021-2021 season. Due to the world-wide pandemic, the United States Antarctic Program severely curtailed its activities on the continent and directed efforts to activities required to ensure the safe and continuous operation of all three USAP stations and activities required to avoid irreversible damage to science or operational infrastructure. In order to minimize the risk of introducing COVID-19 to the Antarctic continent, personnel was reduced to a minimum and the annual ships for resupply and waste removal were cancelled for the season. The removal of the hazardous waste is a priority for removal during the January-February 2022 time period.
Dr. Polly A. Penhale, Senior Advisor, Environment at 703-292-7420.
45 CFR 671.17.
Nuclear Regulatory Commission.
Request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is requesting public comment on the current state of commercial nuclear power operations relative to the use of artificial intelligence (AI) and machine learning (ML) tools.
Submit comments by May 21, 2021. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal Rulemaking website:
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
John C. Lane, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-2476, email:
Please refer to Docket ID NRC-2021-0048 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
•
•
•
The NRC encourages electronic comment submission through the Federal Rulemaking website (
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The NRC is exploring the potential for advanced computational and predictive capabilities involving AI and ML in the various phases of nuclear power generation operational experience and plant management. The NRC is soliciting comments on the state of practice, benefits, and future trends related to the advanced computational tools and techniques in predictive reliability and predictive safety assessments in the commercial nuclear power industry.
The NRC requests comments from the public, the nuclear industry and other stakeholders, as well as other interested individuals and organizations. The focus of this request is to gather information that will provide the NRC staff with a better understanding of current usage and future trends in AI and ML in the commercial nuclear power industry.
AI and ML are emerging, analytical tools, which, if used properly, show promise in their ability to improve reactor safety, yet offer economic savings. The NRC requests comments on issues listed below in this solicitation to enhance the NRC's understanding of the short- and long-term applications of AI
1. What is status of the commercial nuclear power industry development or use of AI/ML tools to improve aspects of nuclear plant design, operations or maintenance or decommissioning? What tools are being used or developed? When are the tools currently under development expected to be put into use?
2. What areas of commercial nuclear reactor operation and management will benefit the most, and the least, from the implementation of AI/ML? Possible examples include, but are not limited to, inspection support, incident response, power generation, cybersecurity, predictive maintenance, safety/risk assessment, system and component performance monitoring, operational/maintenance efficiency and shutdown management.
3. What are the potential benefits to commercial nuclear power operations of incorporating AI/ML in terms of (a) design or operational automation, (b) preventive maintenance trending, and (c) improved reactor operations staff productivity?
4. What AI/ML methods are either currently being used or will be in the near future in commercial nuclear plant management and operations? Example of possible AI/ML methods include, but are not limited to, artificial neural networks, decision trees, random forests, support vector machines, clustering algorithms, dimensionality reduction algorithms, data mining and content analytics tools, gaussian processes, Bayesian methods, natural language processing, and image digitization.
5. What are the advantages or disadvantages of a high-level, top-down strategic goal for developing and implementing AI/ML across a wide spectrum of general applications versus an ad-hoc, case-by-case targeted approach?
6. With respect to AI/ML, what phase of technology adoption is the commercial nuclear power industry currently experiencing and why? The current technology adoption model characterizes phases into categories such as: the innovator phase, the early adopter phase, the early majority phase, the late majority phase, and the laggard phase.
7. What challenges are involved in balancing the costs associated with the development and application of AI/ML tools, against plant operational and engineering benefits when integrating AI/ML into operational decision-making and workflow management?
8. What is the general level of AI/ML expertise in the commercial nuclear power industry (
9. How will AI/ML effect the commercial nuclear power industry in terms of efficiency, costs, and competitive positioning in comparison to other power generation sources?
10. Does AI/ML have the potential to improve the efficiency and/or effectiveness of nuclear regulatory oversight or otherwise affect regulatory costs associated with safety oversight? If so, in what ways?
11. AI/ML typically necessitates the creation, transfer and evaluation of very large amounts of data. What concerns, if any, exist regarding data security in relation to proprietary nuclear plant operating experience and design information that may be stored in remote, offsite networks?
For the Nuclear Regulatory Commission.
U.S. Nuclear Regulatory Commission.
Notice of Meeting.
The U.S. Nuclear Regulatory Commission (NRC) will convene a public teleconference meeting of the Advisory Committee on the Medical Uses of Isotopes (ACMUI) on May 27, 2021, to discuss the NRC staff's assessment of medical related events for fiscal year 2020 and the ACMUI Abnormal Occurrence Subcommittee's draft report on the proposed limited revisions to abnormal occurrence criteria for medical events. The meeting agenda is subject to change. Meeting information, including a copy of the agenda and related documents, will be available on the ACMUI's Meetings and Related Documents web page at
The teleconference meeting will be held on Thursday, May 27, 2021, 1:00 p.m. to 5:00 p.m. Eastern Daylight Time.
The ACMUI Chair, Darlene F. Metter, M.D., will preside over the meeting. Dr. Metter will conduct the meeting in a manner that will facilitate the orderly conduct of business. The following procedures apply to public participation in the meeting:
1. Persons who wish to provide a written statement should submit an electronic copy to Ms. Jamerson at the contact information listed above. All written statements must be received by May 24, 2021, three business days prior to the meeting, and must pertain to the topics on the agenda for the meeting.
2. Questions and comments from members of the public will be permitted during the meeting, at the discretion of the ACMUI Chairman.
3. The draft transcript and meeting summary will be available on ACMUI's website
4. Persons who require special services, such as those for the hearing impaired, should notify Ms. Jamerson of their planned participation.
This meeting will be held in accordance with the Atomic Energy Act of 1954, as amended (primarily Section 161a); the Federal Advisory Committee Act (5 U.S.C. App); and the Commission's regulations in 10 CFR part 7.
For the U.S. Nuclear Regulatory Commission.
Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from February 1, 2021 to February 28, 2021.
Julia Alford, Senior Executive Resources Services, Senior Executive Services and Performance Management, Employee Services, 202-606-2246.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No Schedule B Authorities to report during February 2021.
No Schedule B Authorities to report during February 2021.
The following Schedule C appointing authorities were approved during February 2021.
The were no Schedule C appointing authorities revoked during February 2021.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218.
Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from January 1, 2021 to January 31, 2021.
Julia Alford, Senior Executive Resources Services, Senior Executive Services and Performance Management, Employee Services, 202-606-2246.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No Schedule B Authorities to report during January 2021.
No Schedule B Authorities to report during January 2021.
The following Schedule C appointing authorities were approved during January 2021.
The were no Schedule C appointing authorities revoked during January 2021.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
1. Docket No(s).: MC2021-84 and CP2021-87; Filing Title: USPS Request to Add Priority Mail Contract 694 to Competitive Product List and Notice of Filing Materials Under Seal; Filing Acceptance Date: April 15, 2021; Filing Authority: 39 U.S.C. 3642, 39 CFR 3040.130 through 3040.135, and 39 CFR 3035.105; Public Representative: Kenneth R. Moeller; Comments Due: April 23, 2021.
This Notice will be published in the
The RRB invites comments on the proposed collection of information to determine (1) the practical utility of the
The survivor student annuity is usually paid by direct deposit to a financial institution either into the student's checking or savings account or into a joint bank account with a parent. The requirements for eligibility as a student are prescribed in 20 CFR 216.74, and include students in independent study and home schooling.
To help determine if a child is entitled to student benefits, the RRB requires evidence of full-time school attendance. This evidence is acquired through the RRB's student monitoring program, which utilizes the following forms. Form G-315, Student Questionnaire, obtains certification of a student's full-time school attendance as well as information on the student's marital status, social security benefits, and employment, which are needed to determine entitlement or continued entitlement to benefits under the RRA. Form G-315A, Statement of School Official, is used to obtain, from a school, verification of a student's full-time attendance when the student fails to return a monitoring Form G-315. Form G-315A.1, School Official's Notice of Cessation of Full-Time School Attendance, is used by a school to notify the RRB that a student has ceased full-time school attendance.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Securities and Exchange Commission.
Notice of meeting.
The Securities and Exchange Commission Small Business Capital Formation Advisory Committee, established pursuant to Section 40 of the Securities Exchange Act of 1934 as added by the SEC Small Business Advocate Act of 2016, is providing notice that it will hold a public meeting by videoconference. The public is invited to submit written statements to the Committee.
The meeting will be held on Friday, April 30, 2021, from 10:00 a.m. to 2:30 p.m. (ET) and will be open to the public. Written statements should be received on or before April 30, 2021.
The meeting will be conducted by remote means (videoconference). Members of the public may attend the meeting by viewing the webcast on the Commission's website at
• Use the Commission's internet submission form (
• Send an email message to
• Send paper statements to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090.
Statements also will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. (ET). All statements received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
Jenny Choi, Attorney, Office of the Advocate for Small Business Capital Formation, at (202) 551-5407, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-3628.
The meeting will be open to the public. Persons needing special accommodations because of a disability should notify the contact person listed in the section above entitled
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Under Section 16(a) of the Securities Exchange Act of 1934 (“Exchange Act”) (15 U.S.C. 78a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 13h-1 and Form 13H under Section 13(h) of the Exchange Act established a large trader reporting framework.
The identification, recordkeeping, and reporting framework provides the Commission with a mechanism to identify large traders and obtain additional information on their trading activity. Specifically, the rule requires large traders to identify themselves to the Commission and file certain interim updates with the Commission on Form 13H. Upon receipt of Form 13H, the Commission issues a unique identification number to the large trader, which the large trader then provides to its registered broker-dealers. Certain registered broker-dealers are required to maintain transaction records for each large trader, and are required to report that information to the Commission upon request.
The respondents to the collection of information required by Rule 13h-1 and Form 13H are large traders and
Compliance with Rule 13h-1 is mandatory. The information collection under Rule 13h-1 is considered confidential subject to the limited exceptions provided by the Freedom of Information Act.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995(44 U.S.C. 3501
Form F-6 (17 CFR 239.36) is a form used by foreign companies to register the offer and sale of American Depositary Receipts (ADRs) under the Securities Act of 1933 (15 U.S.C. 77a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form ABS-EE (17 CFR 249.1401) is filed by asset-backed issuers to provide asset-level information for registered offerings of asset-backed securities at the time of securitization and on an ongoing basis required by Item 1111(h) of Regulation AB (17 CFR 229.1111(h)). The purpose of the information collected on Form ABS-EE is to implement the disclosure requirements of Section 7(c) of the Securities Act of 1933 (15 U.S.C. 77g(c)) to provide information regarding the use of representations and warranties in the asset-backed securities markets. We estimate that approximately 13,374 securitizers will file Form ABS-EE annually at estimated 170,089 burden hours per response. In addition, we estimate that 25% of the 50.87152 hours per response (12.71788 hours) is carried internally by the securitizers for a total annual reporting burden of 170,089 hours (12.71788 hours per response × 13,374 responses).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the current pilot program related to Nasdaq Equity 11, Rule 11890 to the close of business on October 20, 2021.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to extend the current pilot program related to Equity 11, Rule 11890, Clearly Erroneous Transactions, to the close of business on October 20, 2021. The pilot program is currently due to expire on April 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to Equity 11, Rule 11890 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
These changes were originally scheduled to operate for a pilot period to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “LULD Plan”).
The Exchange now proposes to amend Equity 11, Rule 11890 to extend the pilot's effectiveness for a further six months until the close of business on October 20, 2021. If the pilot period is not either extended, replaced or approved as permanent, the prior versions of paragraphs (a)(2)(C), (c)(1), (b)(i), and (b)(ii) shall be in effect, and the provisions of paragraphs (g) through (i) shall be null and void.
The Exchange does not propose any additional changes to Equity 11, Rule 11890. Extending the effectiveness of Rule 11890 for an additional six months will provide the Exchange and other self-regulatory organizations additional time to consider whether further amendments to the clearly erroneous execution rules are appropriate.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning review of transactions as clearly erroneous. The Exchange believes that extending the clearly erroneous execution pilot under Equity 11, Rule 11890 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous execution rules across the U.S. equities markets while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate. The Exchange understands that the other national securities exchanges and FINRA will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 12g3-2 (17 CFR 240.12g3-2) under the Securities Exchange Act of 1934 (the “Exchange Act”) provides an exemption from Section 12(g) of the Exchange Act (15 U.S.C. 78l(g)) for foreign private issuers. Rule 12g3-2 is designed to provide investors in foreign securities with information about such securities and the foreign issuer. As a condition to the exemption, a non-Exchange Act reporting foreign private issuer must publish in English specified non-U.S. disclosure documents required by Rule 12g3-2(b) for its most recently completed fiscal year on its internet website or through an electronic information delivery system in its primary trading market. In addition, the rule requires a foreign private issuer similarly to publish electronically specified non-U.S. disclosure documents in English on an ongoing basis for subsequent fiscal years as a condition to maintaining the Rule 12g3-2(b) exemption. We estimate that, that approximately 1,386 respondents claim the exemption. Each respondent publishes an estimated 12 submissions pursuant to Rule 12g3-2 per year for a total of 16,632 responses. We estimate the number of burden hours incurred by foreign private issuers to produce the Rule 12g3-2(b) publications to total 37,206, or approximately 2.237 burden hours per response (2.237 hours per response × 16,632 responses).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
On February 11, 2021, The Nasdaq Stock Market LLC (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change, as modified by Amendment No. 1. Accordingly, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act” or “Exchange Act”),
The Exchange proposes to amend its rules relating to categories of registration and respective qualification examinations required for Trading Permit Holders (“TPHs”) and associated persons that engage in trading activities on the Exchange. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange has adopted registration requirements to ensure that associated persons of TPH organizations attain and maintain specified levels of competence and knowledge pertinent to their function. In general, the current rules require that persons engaged in a TPH organization's securities business who are to function as representatives or principals register with the Exchange in the category of registration appropriate to their functions by passing one or more qualification examinations
In 2017, the Commission approved a Financial Industry Regulatory Authority, Inc. (“FINRA”) proposed rule change adopting rules relating to qualification and registration requirements in the consolidated FINRA Rulebook, restructuring the FINRA representative-level qualification examinations, creating a general knowledge examination and specialized knowledge examinations, allowing permissive registration, establishing an exam waiver process for persons working for a financial services affiliate of a member, and amending certain Continuing Education (“CE”) requirements (the “FINRA Rule Changes”).
The Exchange now proposes to amend, reorganize and enhance its own membership, registration and qualification rules in part in response to the Registration Rule Changes, and also in order to conform the Exchange's rules more closely to those of its affiliated exchanges and non-affiliated exchanges in the interest of uniformity and to facilitate compliance with membership, registration and qualification regulatory requirements by members of multiple exchanges. The proposed rule change also includes the proposal to enhance its registration rules by adding a new registration requirement applicable to developers of algorithmic trading systems similar to a requirement adopted by FINRA pursuant to a 2016 FINRA proposed rule change.
Cboe Options Rule 3.30 currently requires that persons engaged, or to be engaged, in the securities business of a TPH who are to function as representatives or principals register with the Exchange in the category of registration appropriate to their functions as specified in Cboe Options Rule 3.30.
Proposed Rule 3.30 provides that each person engaged in the securities business of a TPH must register with the Exchange as a representative or principal in each category of registration appropriate to his or her functions and responsibilities as specified in proposed Rule 3.31, unless exempt from registration pursuant to proposed Rule 3.32. Proposed Rule 3.30 also provides that such person is not qualified to function in any registered capacity other than that for which the person is registered, unless otherwise stated in the rules.
Rule 3.30.07 currently requires that every TPH must register with the Exchange in a heightened capacity each individual acting in any of the following roles: (i) officer; (ii) partner; (iii) director; (iv) supervisor of proprietary trading, market-making or brokerage activities; and/or (v) supervisor of those engaged in proprietary trading, market-making or brokerage activities with respect to those activities. Each TPH must register with the Exchange at least two individuals acting in one or more of the capacities described in (i)-(v) above. The Exchange is able to waive this requirement if a TPH demonstrates conclusively that only one individual acting in one or more of the capacities described in (i) through (v) above should be required to register. In addition, a TPH that conducts proprietary trading only and has 25 or fewer registered persons shall instead be required to have a minimum of one officer or partner who is registered in this capacity. The Exchange is proposing to eliminate Rule 3.30.07 and, in its place, adopt a similar, but new, Rule 3.30.01. The new rule would provide TPHs that limit the scope of their business flexibility in satisfying the two-principal requirement. In particular, proposed Rule 3.30.01 requires that a TPH have a minimum of two General Securities Principals, provided that a TPH that is limited in the scope of its activities may instead have two officers or partners who are registered in a principal category that corresponds to the scope of the TPH's activities. For instance, if a TPH's business is limited to securities trading, the TPH may have two Securities Trader Principals, instead of two General Securities Principals. Additionally, proposed Rule 3.30.01 provides that any TPH with only one associated person is excluded from the two-principal requirement. Proposed Rule 3.30.01 would provide that existing TPHs as well as new applicants may request a waiver of the two-principal requirement, consistent with current Rule 3.30.07. Finally, the Exchange is proposing to retain the existing rule's provision permitting a proprietary trading firm with 25 or fewer registered representatives to have just one registered principal. The Exchange notes that proposed Rule 3.30.01 is substantively the same as FINRA's and other exchanges' corresponding Rules.
Current Rule 3.30(a)(1) prohibits TPHs from maintaining a registration with the Exchange for any person (A) who is no longer active in the TPH's securities business, (B) who is no longer functioning in the registered capacity, or (C) where the sole purpose is to avoid the examination requirement of the rule. A TPH may not make application for the registration of any person where there is no intent to employ such person in the TPH's securities business. However, a TPH may maintain or make application for the registration of a person who performs legal, compliance, internal audit, back-office operations, or similar duties for the TPH or a person engaged in the securities business of a foreign securities affiliate or subsidiary of the TPH. The Exchange is proposing to replace this provision with new Rule 3.30.02. The Exchange is also proposing to expand the scope of permissive registrations and to clarify a TPH's obligations regarding individuals who are maintaining such registrations.
Specifically, proposed Rule 3.30.02 allows any associated person to obtain and maintain any registration permitted by the TPH. For instance, an associated person of a TPH working solely in a clerical or ministerial capacity, such as in an administrative capacity, would be able to obtain and maintain a General Securities Representative registration with the TPH. As another example, an associated person of a TPH who is registered, and functioning solely, as a General Securities Representative would be able to obtain and maintain a General Securities Principal registration with the TPH. Further, proposed Rule 3.30.02 allows an individual engaged in the securities business of a foreign securities affiliate or subsidiary of a TPH to obtain and maintain any registration permitted by the TPH.
The Exchange is proposing to permit the registration of such individuals for several reasons. First, a TPH may foresee a need to move a former representative or principal who has not been registered for two or more years back into a position that would require such person to be registered. Currently, such persons are required to requalify (or obtain a waiver of the applicable qualification examinations) and reapply for registration. Second, the proposed rule change would allow TPHs to develop a depth of associated persons with registrations in the event of unanticipated personnel changes. Third, allowing registration in additional categories encourages greater regulatory understanding.
Individuals maintaining a permissive registration under the proposed rule change would be considered registered persons and subject to all Exchange rules, to the extent relevant to their activities. For instance, an individual working solely in an administrative capacity would be able to maintain a General Securities Representative registration and would be considered a registered person for purposes of rules relating to borrowing from or lending to customers, but the rule would have no practical application to his or her conduct because he or she would not have any customers.
Consistent with the Exchange's supervision rules, TPHs would be required to have adequate supervisory systems and procedures reasonably designed to ensure that individuals with permissive registrations do not act outside the scope of their assigned functions. With respect to an individual who solely maintains a permissive registration, such as an individual working exclusively in an administrative capacity, the individual's day-to-day supervisor may be a
Current Rule 3.30(a)(1) provides that before a registration can become effective, TPHs must submit the appropriate application for registration, pass a qualification examination appropriate to the category of registration and submit any required registration and examination fees. The Exchange is proposing to incorporate similar language in new Rule 3.30.03.
In addition, as part of the FINRA Rule Changes, FINRA adopted a restructured representative-level qualification examination program whereby representative-level registrants would be required to take a general knowledge examination (the Securities Industry Essentials Exam or “SIE”) and a specialized knowledge examination appropriate to their job functions at the firm with which they are associating. The Exchange similarly adopted this requirement, which is reflected in current Cboe Options Rules 3.30.08 and 3.37(d).
Further, proposed Rule 3.30.03 provides that if a registered person's job functions change and he or she needs to become registered in another representative-level category, he or she would not need to pass the SIE again. Rather, the registered person would need to pass only the appropriate representative-level qualification examination. Moreover, proposed Rule 3.30.03 provides that all associated persons, such as associated persons whose functions are solely and exclusively clerical or ministerial, are eligible to take the SIE. Proposed Rule 3.30.03 also provides that individuals who are not associated persons of firms, such as members of the general public, are eligible to take the SIE. The Exchange believes that expanding the pool of individuals who are eligible to take the SIE would enable prospective securities industry professionals to demonstrate to prospective employers a basic level of knowledge prior to submitting a job application. Further, this approach would allow for more flexibility and career mobility within the securities industry. While all associated persons of firms as well as individuals who are not associated persons would be eligible to take the SIE pursuant to the proposed rule, passing the SIE alone would not qualify them for registration with the Exchange. Rather, to be eligible for registration with the Exchange, an individual must pass an applicable representative or principal qualification examination and complete the other requirements of the registration process.
Proposed Rule 3.30.03 also provides that the Exchange may, in exceptional cases and where good cause is shown, waive the applicable qualification examination(s) and accept other standards as evidence of an applicant's qualifications for registration. The rule will also state that advanced age or physical infirmity will not individually of themselves constitute sufficient grounds to waive a qualification examination and that experience in fields ancillary to the securities business may constitute sufficient grounds to waive a qualification examination. The Exchange notes that proposed language relating to waivers is already contained in current Rule 3.30.05.
The Exchange next proposes to adopt Rule 3.30.04, which governs the requirements for registered persons who wish to function as a principal for a limited period. Particularly, proposed Rule 3.30.04 provides that a TPH may designate any person currently registered, or who becomes registered, with the TPH as a representative to function as a principal for a limited period, provided that such person has at least 18 months of experience functioning as a registered representative with the five-year period immediately preceding the designation. The proposed rule is intended to ensure that representatives designated to function as principals for the limited period under the proposal have an appropriate level of registered representative experience. The proposed rule clarifies that the requirements of the rule apply to designations to any principal category, including those categories that are not subject to a prerequisite representative-level registration requirement, such as the Financial and Operations Principal registration category.
The proposed rule also clarifies that the individual must fulfill all applicable prerequisite registration, fee and examination requirements before his or her designation as a principal. Further, the proposed rule provides that in no event may such person function as a principal beyond the initial 120 calendar days without having successfully passed an appropriate principal qualification examination. The proposed rule also provides an exception to the experience requirement for principals who are designated by a TPH to function in other principal categories for a limited period. Specifically, the proposed rule states
Proposed Rule 3.30.05 provides that associated persons taking the SIE would be subject to the SIE Rules of Conduct, and associated persons taking a representative or principal examination would be subject to the Rules of Conduct for representative and principal examinations. Pursuant to proposed Rule 3.30.05, a violation of the SIE Rules of Conduct or the Rules of Conduct for representative and principal examinations by an associated person would be deemed to be a violation of Exchange rules requiring just and equitable principles of trade.
Further, the proposed rule states that individuals taking the SIE who are not associated persons must agree to be subject to the SIE Rules of Conduct. Among other things, the SIE Rules of Conduct would require individuals to attest that they are not qualified to engage in the investment banking or securities business based on passing the SIE and would prohibit individuals from cheating on the examination or misrepresenting their qualifications to the public subsequent to passing the SIE. Moreover, non-associated persons may forfeit their SIE results and may be prohibited from retaking the SIE if the Exchange determines that they cheated on the SIE or that they misrepresented their qualifications to the public subsequent to passing the SIE.
The proposed rule further notes that the Exchange considers all qualification examinations content to be highly confidential and that the removal of examination content from an examination center, reproduction, disclosure, receipt from or passing to any person, or use for study purposes of any portion of such qualification examination or any other use that would compromise the effectiveness of the examinations and the use in any manner and at any time of the questions or answers to the examinations is prohibited and would be deemed a violation of Exchange rules requiring just and equitable principles of trade.
Proposed Rule 3.30.06 provides that any person who fails a qualification examination may retake that examination after 30 calendar days from the date of the person's last attempt to pass that examination. The proposed rule further provides that if a person fails an examination three or more times in succession within a two-year period, he or she would be prohibited from retaking the examination until a period of 180 calendar days from the date of the person's last attempt to pass it. These waiting periods would apply to the SIE and the representative- and principal-level examinations. The Exchange notes that proposed Rule 3.30.06 is substantively similar to FINRA and other exchanges' rules.
Pursuant to current Rule 3.33, the CE requirements applicable to registered persons consist of a Regulatory Element and a Firm Element. The Regulatory Element applies to registered persons and must be completed within prescribed time frames. The Firm Element consists of annual, TPH-developed and administered training programs designed to keep covered registered persons current regarding securities products, services and strategies offered by the TPH. For purposes of the Firm Element, the term “covered registered persons” means any registered Securities Trader and any registered person who has direct contact with customers in the conduct of the TPH's securities sales, trading and investment banking activities and to the immediate supervisors of such persons.
The CE requirements are set forth in current Rule 3.33. The Exchange believes that all registered persons, regardless of their activities, should be subject to the Regulatory Element of the CE requirements so that they can keep their knowledge of the securities industry current. Therefore, the Exchange proposes to adopt Rule 3.30.07, to clarify that all registered persons, including those who solely maintain a permissive registration, are required to satisfy the Regulatory Element, as specified in current Rule 3.33. Individuals who have passed the SIE but not a representative- or principal-level examination and do not hold a registered position would not be subject to any CE requirements.
Proposed Rule 3.30.07 also provides that a registered person of a TPH who becomes CE inactive would not be permitted to be registered in another registration category with the TPH or be registered in any registration category with another TPH, until the person has satisfied the Regulatory Element. The Exchange notes that proposed Rule 3.30.07 is substantively similar to FINRA and other exchanges' rules.
Proposed Rule 3.30.08 provides that any person who was last registered as a representative two or more years immediately preceding the date of receipt by the Exchange of a new application for registration as a representative is required to pass a qualification examination for representatives appropriate to the category of registration as specified in proposed Rule 3.31(b). Proposed Rule 3.30.08 also sets forth that a passing result on the SIE would be valid for up to four years. Therefore, under the proposed rule change, an individual who passes the SIE and is an associated person of a TPH at the time would have up to four years from the date he or she passes the SIE to pass a representative-level examination to register as a representative with that TPH, or a subsequent TPH, without having to retake the SIE. In addition, an individual who passes the SIE and is not an associated person at the time would have up to four years from the date he or she passes the SIE to become an associated person of TPH and pass a representative-level examination and register as a representative without having to retake the SIE.
Moreover, an individual holding a representative-level registration who leaves the industry after the effective date of this proposed rule change would have up to four years to re-associate with a TPH and register as a representative without having to retake the SIE. However, the four-year expiration period in the proposed rule change extends only to the SIE, and not the representative- and principal-level registrations. The representative- and principal-level registrations would continue to be subject to a two-year expiration period as is the case today.
Finally, proposed Rule 3.30.08 clarifies that, for purposes of the proposed rule, an application would not be considered to have been received by the Exchange if that application does not result in a registration. The Exchange notes that proposed Rule 3.30.08 is substantively similar to similar FINRA and other exchanges' rules.
The Exchange is proposing Rule 3.30.09 to provide a new process whereby individuals who would be working for a “financial services industry affiliate of a TPH”
Under the proposed waiver process, the first time a registered person is designated as eligible for a waiver based on the FSA criteria, the TPH with which the individual is registered would notify the Exchange of the FSA designation. The TPH would concurrently file a full Form U5 terminating the individual's registration with the firm, which would also terminate the individual's other self-regulatory organization and state registrations. To be eligible for initial designation as an FSA-eligible person by a TPH, an individual must have been registered for a total of five years within the most recent 10-year period prior to the designation, including for the most recent year with that TPH. An individual would have to satisfy these preconditions only for purposes of his or her initial designation as an FSA-eligible person, and not for any subsequent FSA designation(s). Thereafter, the individual would be eligible for a waiver for up to seven years from the date of initial designation,
Example 1. TPH A designates an individual as an FSA-eligible person by notifying the Exchange and files a Form U5. The individual joins Firm A's financial services affiliate. TPH A does not submit a waiver request for the individual. After working for TPH A's financial services affiliate for three years, the individual directly joins TPH B's financial services affiliate for three years. TPH B then submits a waiver request to register the individual.
Example 2. Same as Example 1, but the individual directly joins TPH B after working for TPH A's financial services affiliate, and TPH B submits a waiver request to register the individual at that point in time.
Example 3. TPH A designates an individual as an FSA-eligible person by notifying the Exchange and files a Form U5. The individual joins TPH A's financial services affiliate for three years. TPH A then submits a waiver request to re-register the individual. After working for TPH A in a registered capacity for six months, TPH A re-designates the individual as an FSA-eligible person by notifying the Exchange and files a Form U5. The individual rejoins TPH A's financial services affiliate for two years, after which the individual directly joins TPH B's financial services affiliate for one year. TPH B then submits a waiver request to register the individual.
Example 4. Same as Example 3, but the individual directly joins TPH B after the second period of working for TPH A's financial services affiliate, and TPH B submits a waiver request to register the individual at that point in time.
An individual designated as an FSA-eligible person would be subject to the Regulatory Element of CE while working for a financial services industry affiliate of a TPH. The individual would be subject to a Regulatory Element program that correlates to his or her most recent registration category, and CE would be based on the same cycle had the individual remained registered. If the individual fails to complete the prescribed Regulatory Element during the 120-day window for taking the session, he or she would lose FSA eligibility (
Upon registering an FSA-eligible person, a TPH would file a Form U4 and request the appropriate registration(s) for the individual. The TPH would also submit an examination waiver request to the Exchange,
(a) Prior to the individual's initial designation as an FSA-eligible person, the individual was registered for a total of five years within the most recent 10-year period, including for the most recent year with the TPH that initially designated the individual as an FSA-eligible person;
(b) The waiver request is made within seven years of the individual's initial designation as an FSA-eligible person by a TPH;
(c) The initial designation and any subsequent designation(s) were made concurrently with the filing of the individual's related Form U5;
(d) The individual continuously worked for the financial services affiliate(s) of a TPH since the last Form U5 filing;
(e) The individual has complied with the Regulatory Element of CE; and
(f) The individual does not have any pending or adverse regulatory matters, or terminations, that are reportable on the Form U4, and has not otherwise been subject to a statutory disqualification while the individual was designated as an FSA-eligible person with a TPH.
Following the Form U5 filing, an individual could move between the financial services affiliates of a TPH so long as the individual is continuously working for an affiliate. Further, a TPH could submit multiple waiver requests for the individual, provided that the
Proposed Rule 3.30.10 provides specific relief to registered persons serving in the Armed Forces of the United States. Among other things, the proposed rule permits a registered person of a TPH who volunteers for or is called into active duty in the Armed Forces of the United States to be registered in an inactive status and remain eligible to receive ongoing transaction-related compensation. The proposed rule also includes specific provisions regarding the deferment of the lapse of registration requirements for formerly registered persons serving in the Armed Forces of the United States. The proposed rule further requires that the TPH with which such person is registered promptly notify the Exchange of such person's return to employment with the TPH. The proposed rule would require a TPH that is a sole proprietor to also similarly notify the Exchange of his or her return to participation in the investment banking or securities business. The proposed rule also provides that the Exchange would defer the lapse of the SIE for formerly registered persons serving in the Armed Forces of the United States.
Existing Rule 3.30 prohibits a TPH from maintaining a registration with the Exchange for any person who is no longer active in the TPH's investment banking or securities business, who is no longer functioning in the registered capacity, or where the sole purpose is to avoid an examination requirement. The Rule also prohibits a TPH from applying for the registration of a person where the TPH does not intend to employ the person in its investment banking or securities business. These prohibitions do not apply to the current permissive registration categories identified in Rule 3.30.
In light of proposed 3.30.02, Permissive Registrations, discussed above the Exchange is proposing to not carry over this language to new rule 3.30 and instead adopt Rule 3.30.11, which prohibits a TPH from registering or maintaining the registration of a person unless the registration is consistent with the requirements of proposed Rule 3.30. The Exchange notes that proposed Rule 3.30.11 is substantively similar FINRA and other exchanges' rules.
The Exchange is proposing to adopt new and revised registration category rules and related definitions in proposed Rule 3.31, Registration Categories.
As set forth in proposed Rule 3.31(a)(1), for purposes of these registration rules, the term “principal” means any person associated with a TPH, including, but not limited to, sole proprietor, officer, partner, director or other person occupying a similar status or performing similar functions, actively engaged in the management of the TPH's securities business, including supervision, solicitation, conduct of the TPH's business, or the training of persons associated with a TPH for any of these functions. Proposed Rule 3.31(a)(1) also clarifies that a TPH's chief executive officer (“CEO”) and chief financial officer (“CFO”) (or equivalent officers) are considered principals based solely on their status. The proposed rule further clarifies that the term “principal” includes any other associated person who is performing functions or carrying out responsibilities that are required to be performed or carried out by a principal under Exchange Rules.
In addition, the proposed Rule provides that the phrase “actively engaged in the management of the TPH's securities business” includes the management of, and the implementation of corporate policies related to, such business as well as managerial decision-making authority with respect to the TPH's securities business and management-level responsibilities for supervising any aspect of such business, such as serving as a voting member of the TPH's executive, management or operations committees. The Exchange notes that proposed definition in Rule 3.31(a)(1) is substantively similar to the definition of principal in FINRA and other exchanges' rules.
Proposed Rule 3.31(a)(2)(A) states that each principal as defined in paragraph (a)(1) (of Rule 3.31) is required to register with the Exchange as a General Securities Principal, subject to the following exceptions.
Proposed Rule 3.31(a)(2)(A) further provides that if a principal's activities are limited solely to the functions of a General Securities Sales Supervisor, then the principal may appropriately register in that category in lieu of registering as a General Securities Principal, provided that if the principal is engaged in options sales activities he or she would be required to register as a General Securities Sales Supervisor or as a Registered Options Principal.
Proposed Rule 3.31(a)(2)(B) requires that an individual registering as a General Securities Principal satisfy the General Securities Representative prerequisite registration and pass the General Securities Principal qualification examination. Proposed Rule 3.31(a)(2)(B) also clarifies that an individual may register as a General Securities Sales Supervisor and pass the General Securities Sales Supervisor Module qualification examination in lieu of passing the General Securities Principal examination.
The Exchange notes that proposed General Securities Principal requirements and qualifications set forth in Rule 3.31(a)(2) are similar to the
Current Rule 3.30(c) provides that each TPH that registered as a broker-dealer shall designated a CCO on Schedule A of Form BD and that such individuals are required to register with the Exchange and pass the appropriate heightened qualification examination(s). Current Rule 3.30.08 further provides that any individual that is a CCO (or performs similar functions) for a TPH that engages in in proprietary trading, market-making or effecting transactions on behalf of a broker-dealer is required to register and qualify as a Securities Trader Compliance Officer (CT) and pass the Series 14 examination or pass the General Securities Principal or Securities Trader Principal qualification examination.
Under the new registration rules, the Exchange proposes to adopt Rule 3.31(a)(3) providing that each person designated as a Chief Compliance Officer on Schedule A of Form BD shall be required to register with the Exchange as a General Securities Principal, provided that such person may instead register as a Compliance Officer if his or her duties do not include supervision of trading. All individuals registering as Compliance Officers would be required, prior to or concurrent with such registration, to pass the Compliance Official qualification examination. An individual designated as a Chief Compliance Officer on Schedule A of Form BD of a TPH that is engaged in limited securities business could also be registered in a principal category under Rule 3.31(a) that corresponds to the limited scope of the TPH's business.
The Exchange notes that the proposed Compliance Officer requirements and qualifications set forth in Rule 3.31(a)(3) are similar to the requirements and qualifications required by FINRA's and other exchange's rules.
Rule 3.31(a)(4) would provide that an individual designated as a Chief Compliance Officer on Schedule A of Form BD may register and qualify as a Securities Trader Compliance Officer if, with respect to transactions in equity, preferred or convertible debt securities, or options, such person is engaged in proprietary trading or Market Making, the execution of transactions on an agency basis, or the direct supervision of such activities other than a person associated with a TPH whose trading activities are conducted principally on behalf of an investment company that is registered with the SEC pursuant to the Investment Company Act and that controls, is controlled by, or is under common control with a TPH. Each individual registering as a Securities Trader Compliance Officer would be required to first become registered pursuant to paragraph (b)(4) as a Securities Trader, and to pass either (i) the Compliance Official qualification exam or (ii) the General Securities Principal qualification exam. The Exchange notes that the proposed Securities Trader Compliance Officer requirements and qualifications set forth in Rule 3.31(a)(4) are similar to the requirements and qualifications required by other exchanges' rules.
Existing Rule 3.30(b) provides that every TPH that is subject to Exchange Act Rule 15c3-1 shall designate a Financial/Operations Principal. It requires each person associated with a TPH who performs such duties to be registered as a Financial/Operations Principal with the Exchange and to pass the Series 27 examination.
It further provides that each Financial/Operations Principal designated by a TPH shall be registered in that capacity with the Exchange as prescribed by the Exchange, and that a Financial/Operations Principal of a TPH may be a full-time employee, a part-time employee or independent contractor of the TPH. The Exchange proposes to delete Exchange 3.30(b) and adopt in its place Exchange Rule 3.31(a)(5). Under the new rule, every TPH of the Exchange that is operating pursuant to the provisions of Rules 15c3-1(a)(1)(ii), (a)(2)(i) or (a)(8) of the Exchange Act, shall designate at least one Financial and Operations Principal who shall be responsible for performing the duties described in proposed Rule 3.31(a)(5)(A)(i)-(vii). In addition, each person associated with a TPH who performs such duties shall be required to register as a Financial and Operations Principal with the Exchange. Proposed Exchange Rule 3.31(a)(5)(C) would require all individuals registering as a Financial and Operations Principal to pass the Financial and Operations Principal qualification examination before such registration may become effective. The Exchange notes that proposed Financial and Operations Principal requirements and qualifications set forth in Rule 3.31(a)(5) are similar to the requirements and qualifications required by other exchanges' rules.
Existing Rule 3.30.08 provides that an individual associated with a TPH that: (i) Supervises or monitors proprietary trading, market-making and/or brokerage activities for broker-dealers; (ii) supervises or trains those engaged in proprietary trading, market-making and/or effecting transactions on behalf of a broker-dealer, with respect to those activities; and/or (iii) is an officer, partner or director of a TPH or TPH organization is required to register and qualify as a Securities Trader Principal (TP) and satisfy the prerequisite registration and qualification requirements. The Rule further provides that to qualify for registration as a Securities Trader Principal, such person must pass the Series 24 (General Securities Principal) qualification examination or the General Securities
In place of Rule 3.30.08, the Exchange proposes to adopt Rule 3.31(a)(6), Securities Trader Principal. Proposed Rule 3.31(a)(6) requires that a principal responsible for supervising the securities trading activities specified in proposed Rule 3.31(b)(3), which provides for registration in the representative-level “Securities Trader” category, register as a Securities Trader Principal. The proposed rule requires individuals registering as Securities Trader Principals to be registered as Securities Traders and to pass the General Securities Principal qualification examination. The Exchange notes that proposed Rule 3.31(a)(6) is substantively similar to FINRA and other exchanges' rules governing Securities Trader Principals.
Existing Rule 3.30(d) provides that associated persons of a TPH that conducts a public customer business must also comply with the registration requirements set forth in Chapter 3, which include the Registered Options Principal. Rule 3.36 provides no TPH shall be approved to transact options business with the public until those persons associated with it who are designated as Options Principals have been approved by and registered with the Exchange.
The Exchange is proposing to delete Rule 3.30 and in its place adopt Rule 3.31(a)(7), Registered Options Principal, which would require under its Section (a)(7)(A) that each TPH that is engaged in transactions in options with the public to have at least one Registered Options Principal.
Proposed Rule 3.31(a)(8) provides that a principal may register with the Exchange as a General Securities Sales Supervisor if his or her supervisory responsibilities in the investment banking or securities business of a TPH are limited to the securities sales activities of the TPH, including the approval of customer accounts, training of sales and sales supervisory personnel and the maintenance of records of original entry or ledger accounts of the TPH required to be maintained in branch offices by Exchange Act record-keeping rules.
A person registering as a General Securities Sales Supervisor must satisfy the General Securities Representative prerequisite registration and pass the General Securities Sales Supervisor examinations. Moreover, a General Securities Sales Supervisor is precluded from performing any of the following activities: (1) Supervision of market-making commitments; (2) supervision of the custody of firm or customer funds or securities for purposes of Exchange Act Rule 15c3-3; or (3) supervision of overall compliance with financial responsibility rules. The Exchange notes that proposed Rule 3.31(a)(8) is substantively similar to FINRA and other exchanges' rules governing General Securities Sales Supervisors.
The Exchange proposes to adopt a definition for the term “representative” in proposed Exchange Rule 3.31(b)(1). Currently, the Exchange's rules do not define the term “representative,” although Rule 3.37(a) states that persons who perform duties for the TPH that are customarily performed by sales representatives' solicitors, or branch office managers shall be designated as Representatives.
Under current Rule 3.37(d), a person accepting orders from non-TPH customers (unless such customer is a broker-dealer registered with the
Proposed Rule 3.31(b)(2)(A) states that each representative as defined in proposed Rule 3.31(b)(1) is required to register with the Exchange as a General Securities Representative, subject to the following exceptions. The proposed rule provides that if a representative's activities include the function of a Securities Trader, then the representative must appropriately register in that category.
The proposed rule further provides that each person seeking to register as a General Securities Representative shall, prior to or concurrent with such registration, pass the SIE and the General Securities Representative qualification examinations. The Exchange notes that proposed Rule 3.31(b)(2) is substantively similar to FINRA and other exchanges' rules governing General Securities Representatives.
Pursuant to current Rule 3.30.08, associated persons must pass the qualification examination for Securities Trader (the Series 57 examination) and SIE and register with the Exchange as a Securities Trader if that person is engaged in proprietary trading, market-making and/or effecting transactions on behalf of a broker-dealer.
The Exchange proposes to delete Rule 3.30 and with respect to the Securities Trader requirement, replace it with proposed Rule 3.31(b)(3). Rule 3.31(b)(3) would require each representative as defined in Rule 3.31(b)(1) to register with the Exchange as a Securities Trader if, with respect to transactions in equity, preferred or convertible debt securities, or options, such person is engaged in proprietary trading or Market Making, the execution of transactions on an agency basis, or the direct supervision of such activities other than a person associated with a TPH whose trading activities are conducted principally on behalf of an investment company that is registered with the SEC pursuant to the Investment Company Act and that controls, is controlled by, or is under common control with a TPH. Rule 3.31(b)(3) would continue to require individuals registering as Securities Traders to pass the SIE as well as the Securities Trader qualification exam.
Additionally, proposed Rule 3.31(b)(3)(A) would require each person associated with a TPH who is: (i) Primarily responsible for the design, development or significant modification of an algorithmic trading strategy relating to equity, preferred or convertible debt securities or options; or (ii) responsible for the day-to-day supervision or direction of such activities to register with the Exchange as a Securities Trader.
For purposes of this proposed new registration requirement an “algorithmic trading strategy” is an automated system that generates or routes orders (or order-related messages) but does not include an automated system that solely routes orders received in their entirety to a market center. The proposed registration requirement applies to orders and order related messages whether ultimately routed or sent to be routed to an exchange or over the counter. An order router alone would not constitute an algorithmic trading strategy. However, an order router that performs any additional functions would be considered an algorithmic trading strategy. An algorithm that solely generates trading ideas or investment allocations—including an automated investment service that constructs portfolio recommendations—but that is not equipped to automatically generate orders and order-related messages to effectuate such trading ideas into the market— whether independently or via a linked router—would not constitute an algorithmic trading strategy.
The associated persons covered by the expanded registration requirement would be required to pass the requisite qualification examination and be subject to the same continuing education requirements that are applicable to individual Securities Traders. The Exchange believes that potentially problematic conduct stemming from algorithmic trading strategies—such as failure to check for order accuracy, inappropriate levels of messaging traffic, and inadequate risk management controls—could be reduced or prevented, in part, through improved education regarding securities regulations for the specified individuals involved in the algorithm design and development process.
The proposal is intended to ensure the registration of one or more associated persons that possesses knowledge of, and responsibility for, both the design of the intended trading strategy and the technological implementation of the strategy, sufficient to evaluate whether the resulting product is designed to achieve regulatory compliance in addition to business objectives. For example, a lead developer who liaises with a head trader regarding the head trader's desired algorithmic trading strategy and is primarily responsible for the supervision of the development of the algorithm to meet such objectives must be registered under the proposal as the associated person primarily responsible for the development of the algorithmic trading strategy and supervising or directing the team of developers. Individuals under the lead developer's supervision would not be required to register under the proposal if they are not primarily responsible for the development of the algorithmic trading strategy or are not responsible for the day-to-day supervision or direction of others on the team. Under this scenario, the person on the business side that is primarily responsible for the design of the algorithmic trading strategy, as communicated to the lead developer, also would be required to register. In the event of a significant modification to the algorithm, TPHs, likewise, would be required to ensure that the associated person primarily responsible for the significant modification (or the associated person supervising or directing such activity), is registered as a Securities Trader.
A TPH employing an algorithm is responsible for the algorithm's activities whether the algorithm is designed or developed in house or by a third-party. Thus, in all cases, robust supervisory procedures, both before and after deployment of an algorithmic trading strategy, are a key component in protecting against problematic behavior stemming from algorithmic trading. In addition, associated persons responsible for monitoring or reviewing the performance of an algorithmic trading strategy must be registered, and a TPH's trading activity must always be supervised by an appropriately registered person. Therefore, even where a firm purchases an algorithm off-the-shelf and does not significantly modify the algorithm, the associated person responsible for monitoring or reviewing the performance of the algorithm would be required to be registered.
The Exchange notes that proposed Rule 3.31(b)(3) is substantively similar
Current Rule 3.30.09 and Rule 3.37(e) provide that any person who is in good standing as a representative with the Financial Conduct Authority in the United Kingdom or with a Canadian stock exchange or securities regulator shall be exempt from the requirement to pass the SIE. The Exchange proposes to relocate the language contained in Rule 3.30.09 (which rule is being deleted) and Rule 3.37(e) to new Rule 3.31 Interpretation and Policy .01 as Rule 3.31 governs the SIE requirements and as the relocation is consistent with the location of the provision in the rules of other exchanges.
The Exchange is also proposing to adopt Rule 3.31.02, which provides that each person who is registered with the Exchange as a Registered Options Principal, General Securities Representative, Options Representative, or General Securities Sales Supervisor shall be eligible to engage in security futures activities as a principal provided that such individual completes a Firm Element program as set forth in proposed Rule 3.33 that addresses security futures products before such person engages in security futures activities.
The Exchange proposes to adopt new Rule 3.31 Interpretation and Policy .03 which requires notification to the Exchange by a TPH that has one Registered Options Principal in the event such person is terminated, resigns, becomes incapacitated or is otherwise unable to perform the duties of a Registered Options Principal, and imposes certain restrictions on the TPH's options business in that event.
Proposed Rule 3.31.04 explains the purpose of the General Securities Sales Supervisor registration category. The General Securities Sales Supervisor category is an alternate category of registration designed to lessen the qualification burdens on principals of general securities firms who supervise sales. Without this category of limited registration, such principals would be required to separately qualify pursuant to the rules of FINRA, the MSRB, and the Cboe options exchanges. While persons may continue to separately qualify with all relevant self-regulatory organizations, the General Securities Sales Supervisor examination permits qualification as a supervisor of sales of all securities through one registration category. Persons registered as General Securities Sales Supervisors may also qualify in any other category of principal registration. Persons who are already qualified in one or more categories of principal General Securities Sales Supervisors may supervise sales activities of all securities by also qualifying as General Securities Sales Supervisors. The proposed rule further provides that any person required to be registered as a principal who supervises sales activities in corporate, municipal and option securities, investment company products, variable contracts, and security futures (subject to the requirements of Rule 3.31.02) may be registered solely as a General Securities Sales Supervisor. In addition to branch office managers, other persons such as regional and national sales managers may also be registered solely as General Securities Sales Supervisors as long as they supervise only sales activities. Proposed Rule 3.31.04 is similar to corresponding FINRA and other exchanges' rules.
Proposed Rule 3.31.05 provides a table summary of the categories of registration and applicable qualifications and alternative qualifications set forth throughout Rule 3.31.
Existing Rule 3.30(2) currently provides that the following persons associated with a TPH are not required to register: (a) Individual associated persons whose functions are solely and exclusively clerical or ministerial; (b) individual TPHs and individual associated persons who are not actively engaged in the securities business; (c) individual TPHs and individual associated persons whose functions are related solely and exclusively to the TPH's or TPH organization's need for nominal corporate officers or for capital participation; (d) individual associated persons that are restricted from accessing the Exchange (physically and electronically) and that do not engage in the securities business of the TPH or TPH organization relating to activity that occurs on the Exchange; and (e) individual associated persons whose functions are related solely and exclusively to: (i) Transactions in commodities; (ii) transactions in security futures; and/or (iii) effecting transactions on the floor of another national securities exchange and who are registered as floor members with such exchange.
The Exchange is proposing to adopt Rule 3.30(2) as Rule 3.32 subject to certain changes. Rule 3.30 exempts from registration those associated persons who are not actively engaged in the securities business. It also exempts from registration those associated persons whose functions are related solely and exclusively to a member's need for nominal corporate officers or for capital participation.
FINRA Rule 1230 provides an exemption from registration with FINRA to persons associated with a FINRA member whose functions are solely and exclusively clerical or ministerial and persons associated with a FINRA member whose functions are related solely and exclusively to (i) effecting transactions on the floor of a national securities exchange and who are appropriately registered with such exchange; (ii) effecting transactions in municipal securities; (iii) effecting transactions in commodities; or (iv)
The Exchange proposes to adopt Rule 3.32.01 to clarify that the function of accepting customer orders is not considered a clerical or ministerial function and that associated persons who accept customer orders under any circumstances are required to be appropriately registered. However, the proposed rule provides that an associated person is not accepting a customer order where occasionally, when an appropriately registered person is unavailable, the associated person transcribes the order details and the registered person contacts the customer to confirm the order details before entering the order.
Existing Rule 3.33 (Continuing Education for Registered Persons), includes a Regulatory Element and a Firm Element. The Regulatory Element applies to registered persons and consists of periodic computer-based training on regulatory, compliance, ethical, supervisory subjects and sales practice standards. The Firm Element consists of at least annual, TPH-developed and administered training programs designed to keep covered registered persons current regarding securities products, services and strategies offered by the TPH.
The Exchange proposes to amend Rule 3.33(a) to provide, consistent with proposed Rule 3.30.09, that a waiver-eligible person would be subject to a Regulatory Element program that correlates to his or her most recent registration category, and that the content of the Regulatory Element would be based on the same cycle had the individual remain registered. The proposed rule change is similar to FINRA's and other exchanges' rules.
Further, the Exchange proposes to amend Rule 3.33(a)(1) to provide that any person whose registration has been deemed inactive under the rule may not accept or solicit business or receive any compensation for the purchase or sale of securities. The proposed amendment provides, however, that such person may receive trail or residual commissions resulting from transactions completed before the inactive status, unless the TPH with which the person is associated has a policy prohibiting such trail or residual commissions. The proposed amendment to Rule 3.33(a)(1) also provides that if a waiver-eligible person fails to complete the Regulatory Element during the prescribed time frames, he or she would lose waiver eligibility.
The Exchange proposes to amend Rule 3.33(a)(2) to provide that unless otherwise determined by the Exchange, a registered person other than a person designated as eligible for a waiver pursuant to Rule 3.30.09 will be required to re-take the Regulatory Element and satisfy all of its requirements under certain circumstances.
Lastly, the Exchange proposes to amend Rule 3.33(a)(3) to provide that the Exchange offers Regulatory Elements for Exchange registered persons: the S201 for registered principals and supervisors, the S106 for persons registered only as Investment Company and Variable Contracts Representatives, and the S101 for all other registered persons.
The Exchange proposes to amend Rule 3.33(c)(1) to provide that any registered person or any or any associated person who has direct contact with customers in the conduct of the TPH's or TPH organization's securities sales, trading or investment banking activities, and to the immediate supervisors of such persons, is subject to the Firm Element.
The Exchange believes that training in ethics and professional responsibility should apply to all registered persons. Therefore, proposed Rule 3.33(c)(2)(ii), which provides that the Firm Element training programs must cover applicable regulatory requirements, would also require that a firm's training program cover training in ethics and professional responsibility. The proposed change to the Firm Element section of proposed Rule 3.33 is similar to changes made by other exchanges.
The Exchange is proposing to adopt new Rule 3.34, Electronic Filing Requirements for Uniform Forms, which, among other things, will consolidate various Web CRD Form U4 and U5 electronic filing requirements in a single location and also would impose certain new requirements. More specifically, current Rule 3.30, Interpretations and Polices .01—.03, state that each individual required to register shall electronically file a Uniform Application for Securities Industry Registration (“Form U4”) through the Central Registration Depository system (“Web CRD”) operated by FINRA and to electronically submit to Web CRD any required amendments to Form U4. Further, any TPH or TPH organization that discharges or terminates the employment or retention of an individual required to register must comply with certain termination filing requirements, which include the filing of a Form U5. Form U4 and Form U5 electronic filing requirements applicable to options principals and representatives, as well a Form U5 requirement applicable to members upon termination of employment of any of their registered persons, are found in Exchange Rules 3.36 and 3.37. The Exchange proposes to delete current Exchange Rule 3.30, Interpretations and Polices .01-.03, and the electronic filing requirements of Exchange Rules 3.36
First, proposed Rule 3.34(a) would provide that all forms required to be filed under the Exchange's registration rules shall be filed through an electronic process or such other process as the Exchange may prescribe to Web CRD.
Under Rule 3.34(b), TPHs would be required to designate registered principal(s) or corporate officer(s) who are responsible for supervising a firm's electronic filings. The registered principal(s) or corporate officer(s) who has or have the responsibility to review and approve the forms filed pursuant to the rule would be required to
Under Rule 3.34(c)(1), initial and transfer electronic Form U4 filings and any amendments to the disclosure information on Form U4 must be based on a manually signed Form U4 provided to the TPH or applicant for membership by the person on whose behalf the Form U4 is being filed. As part of the TPH's recordkeeping requirements, it would be required to retain the person's manually signed Form U4 or amendments to the disclosure information on Form U4 in accordance with Rule 17a4(e)(1) under the Act and make them available promptly upon regulatory request. An applicant for membership must also retain every manually signed Form U4 it receives during the application process and make them available promptly upon regulatory request. Rule 3.34(c)(2) and Interpretation and Policy .03 and 04 provide for the electronic filing of Form U4 amendments without the individual's manual signature, subject to certain safeguards and procedures.
Rule 3.34(d) provides that upon filing an electronic Form U4 on behalf of a person applying for registration, a TPH must promptly submit fingerprint information for that person and that the Exchange may make a registration effective pending receipt of the fingerprint information. It further provides that if a TPH fails to submit the fingerprint information within 30 days after filing of an electronic Form U4, the person's registration will be deemed inactive, requiring the person to immediately cease all activities requiring registration or performing any duties and functioning in any capacity requiring registration. Under the rule the Exchange must administratively terminate a registration that is inactive for a period of two years. A person whose registration is administratively terminated could reactivate the registration only by reapplying for registration and meeting the qualification requirements of the applicable provisions of proposed Exchange Rule 3.31. Upon application and a showing of good cause, the Exchange could extend the 30-day period.
Rule 3.34(e) would require initial filings and amendments of Form U5 to be submitted electronically. As part of the TPH's recordkeeping requirements, it would be required to retain such records for a period of not less than three years, the first two years in an easily accessible place, in accordance with Rule 17a-4 under the Act, and to make such records available promptly upon regulatory request.
Finally, proposed Rule 3.34.02 would provide a TPH could enter into an agreement with a third party pursuant to which the third party agrees to file the required forms electronically on behalf of the TPH and the TPH's associated persons. Notwithstanding the existence of such an agreement, the TPH would remain responsible for complying with the requirements of the Rule.
The Exchange proposes to announce the implementation date of the proposed rule change in an Exchange Notice, to be published no later than thirty (30) days following the operative date. The implementation date will be no later than sixty (60) days following the operative date, with the exception of the new registration requirement for developers of algorithmic trading strategies which would become effective 180 days following the implementation date.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes that the proposed rule change will streamline, and bring consistency and uniformity to, the registration rules, which will, in turn, assist TPHs and their associated persons in complying with these rules and improve regulatory efficiency. The proposed rule change will also improve the efficiency of the examination program, without compromising the qualification standards, by eliminating duplicative testing of general securities knowledge on examinations and by removing examinations that currently have limited utility. In addition, the proposed rule change will expand the scope of permissive registrations, which, among other things, will allow TPHs to develop a depth of associated persons with registrations to respond to unanticipated personnel changes and will encourage greater regulatory understanding. Further, the proposed rule change will provide a more streamlined and effective waiver process for individuals working for a financial services industry affiliate of a TPH, and it will require such individuals to maintain specified levels of competence and knowledge while working in areas ancillary to the securities business. The proposed rule change will improve the supervisory structure of firms by imposing an experience requirement for representatives that are designated by firms to function as principals for a 120-day period before having to pass an appropriate principal qualification examination. The proposed rule change will also prohibit unregistered persons from accepting customer orders under any circumstances, which will enhance investor protection.
The extension of the Securities Trader registration requirement to developers of algorithmic trading strategies requires associated persons primarily responsible for the design, development or significant modification of an algorithmic trading strategy or responsible for the day-to-day supervision or direction of such
Finally, the proposed rule change makes organizational changes to the Exchange's registration and qualification rules to align them with registration and qualification rules of other exchanges as discussed above, in order to prevent unnecessary regulatory burdens and to promote efficient administration of the rules. The change also makes minor updates and corrections to the Exchange's rules which improve readability.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule changes which are, in all material respects, based upon and substantially similar to, recent rule changes adopted by FINRA and/or other national securities exchanges, will reduce the regulatory burden placed on market participants engaged in trading activities across different markets. The Exchange believes that the harmonization of these registration requirements across the various markets will reduce burdens on competition by removing impediments to participation in the national market system and promoting competition among participants across the multiple national securities exchanges.
The Exchange neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to extend its time to announce the implementation schedule for FINRA's corporate bond
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On January 15, 2021, the Commission approved a proposed rule change for FINRA to establish a new issue reference data service for corporate bonds.
FINRA has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing, so FINRA can implement the proposed rule change immediately.
2.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the current pilot program related to Phlx Equity 4, Rule 3312 (Clearly Erroneous Transactions) to the close of business on October 20, 2021.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to extend the current pilot program related to Equity 4, Rule 3312, Clearly Erroneous Transactions, to the close of business on October 20, 2021. The pilot program is currently due to expire on April 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to Equity 4, Rule 3312 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
These changes were originally scheduled to operate for a pilot period to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “LULD Plan”).
The Exchange now proposes to amend Equity 4, Rule 3312 to extend the pilot's effectiveness for a further six months until the close of business on October 20, 2021. If the pilot period is not either extended, replaced or approved as permanent, the prior versions of paragraphs (a)(2)(C), (c)(1), (b)(i), and (b)(ii) shall be in effect, and the provisions of paragraphs (g) through (i) shall be null and void.
The Exchange does not propose any additional changes to Equity 4, Rule 3312. Extending the effectiveness of Rule 3312 for an additional six months will provide the Exchange and other self-regulatory organizations additional time to consider whether further amendments to the clearly erroneous execution rules are appropriate.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning review of transactions as clearly erroneous. The Exchange believes that extending the clearly erroneous execution pilot under Equity 4, Rule 3312 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous execution rules across the U.S. equities markets while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate. The Exchange understands that the other national securities exchanges and FINRA will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17Adb-6 requires every registered transfer agent to make and keep current records about a variety of information, such as: (1) Specific operational data regarding the time taken to perform transfer agent activities (to ensure compliance with the minimum performance standards in Rule 17Adb-2 (17 CFR 240.17Adb-2)); (2) written inquiries and requests by shareholders and broker-dealers and response time thereto; (3) resolutions, contracts, or other supporting documents concerning the appointment or termination of the transfer agent; (4) stop orders or notices of adverse claims to the securities; and (5) all canceled registered securities certificates.
Rule 17Adb-7 requires each registered transfer agent to retain the records specified in Rule 17Adb-6 in an easily accessible place for a period of six months to six years, depending on the type of record or document. Rule 17Adb-7 also specifies the manner in which records may be maintained using electronic, microfilm, and microfiche storage methods.
These recordkeeping requirements are designed to ensure that all registered transfer agents are maintaining the records necessary for them to monitor and keep control over their own performance and for the Commission to adequately examine registered transfer agents on an historical basis for compliance with applicable rules.
The Commission estimates that approximately 359 registered transfer agents will spend a total of 179,500 hours per year complying with Rules 17Adb-6 and 17Adb-7 (500 hours per year per transfer agent).
The retention period under Rule 17Adb-7 for the recordkeeping requirements under Rule 17Adb-6 is six months to six years, depending on the particular record or document. The recordkeeping and retention requirements under Rules 17Adb-6 and 17Adb-7 are mandatory to assist the Commission and other regulatory agencies with monitoring transfer agents and ensuring compliance with the rules. These rules do not involve the collection of confidential information.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o Cynthia Roscoe, 100 F Street, NE Washington, DC 20549, or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Credit Risk Retention (“Regulation RR”) (17 CFR 246.1 through 246.22) recordkeeping and disclosure requirements implement Section 15G of the Securities Exchange Act of 1934 (15 U.S.C. 78o-11) Section 15G clarifies the scope and application of Section 306(a) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7244(a)). Section 306(a) of the Sarbanes-Oxley Act requires, among other things, an issuer to provide timely notice to its directors and executive officers and to the Commission of the imposition of a blackout period that would trigger a trading prohibition under Section 306(a)(1) of the Sarbanes-Oxley Act. Section 306(a)(1) prohibits any director or executive officer of an issuer of any equity security, from directly or indirectly, purchasing, selling or otherwise acquiring or transferring any equity security of that issuer during the blackout period with respect to such equity security, if the director or executive officer acquired the equity security in connection with his or her service or employment. Approximately 1,647 issuers file using Regulation RR responses and it takes approximately 14.389 hours per response. We estimate that 75% of the 14.389 hours per response (10.792 hours) is prepared by the registrant for a total annual reporting burden of 17,774 hours (10.792 hours per response × 1,647 responses).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 350l-3520), the Securities and Exchange Commission (the “Commission”) has submitted to the Office of Management and Budget a request for extension of the previously approved collection of information discussed below.
Rule 17g-1 (17 CFR 270.17g-1) under the Investment Company Act of 1940 (the “Act”) (15 U.S.C. 80a-17(g)) governs the fidelity bonding of officers and employees of registered management investment companies (“funds”) and their advisers. Rule 17g-1 requires, in part, the following:
The form and amount of the fidelity bond must be approved by a majority of the fund's independent directors at least once annually, and the amount of any premium paid by the fund for any “joint insured bond,” covering multiple funds or certain affiliates, must be approved by a majority of the fund's independent directors.
The amount of the bond may not be less than the minimum amounts of coverage set forth in a schedule based on the fund's gross assets. The bond must provide that it shall not be cancelled, terminated, or modified except upon 60-days written notice to the affected party and to the Commission. In the case of a joint insured bond, 60-days written notice must also be given to each fund covered by the bond. A joint insured bond must provide that the fidelity insurance company will provide all funds covered by the bond with a copy of the agreement, a copy of any claim on the bond, and notification of the terms of the settlement of any claim prior to execution of that settlement. Finally, a fund that is insured by a joint bond must enter into an agreement with all other parties insured by the joint bond regarding recovery under the bond.
Upon the execution of a fidelity bond or any amendment thereto, a fund must file with the Commission within 10 days: (i) A copy of the executed bond or any amendment to the bond, (ii) the independent directors' resolution approving the bond, and (iii) a statement as to the period for which premiums have been paid on the bond. In the case of a joint insured bond, a fund must also file: (i) A statement showing the amount the fund would have been required to maintain under the rule if it were insured under a single insured bond; and (ii) the agreement between the fund and all other insured parties regarding recovery under the bond. A fund must also notify the Commission in writing within five days of any claim or settlement on a claim under the fidelity bond.
A fund must notify by registered mail each member of its board of directors of: (i) Any cancellation, termination, or modification of the fidelity bond at least 45 days prior to the effective date; and (ii) the filing or settlement of any claim under the fidelity bond when notification is filed with the Commission.
Rule 17g-1's independent directors' annual review requirements, fidelity bond content requirements, joint bond agreement requirement, and the required notices to directors are designed to ensure the safety of fund assets against losses due to the conduct of persons who may obtain access to those assets. These requirements also seek to facilitate oversight of a fund's fidelity bond. The rule's required filings with the Commission are designed to assist the Commission in monitoring funds' compliance with the fidelity bond requirements.
Based on conversations with representatives in the fund industry, the Commission staff estimates that for each of the estimated 2.200 active funds (respondents),
These estimates of average burden hours are made solely for the purposes of the Paperwork Reduction Act. These estimates are not derived from a comprehensive or even a representative survey or study of Commission rules. The collection of information required by Rule 17g-1 is mandatory and will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17g-3 contains certain reporting requirements for NRSROs including financial statements and information concerning its financial condition that the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors. Currently, there are 9 credit rating agencies registered as NRSROs with the Commission. The Commission estimates that the total burden for respondents to comply with Rule 17g-3 is 3,285 hours.
An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
The public may view background documentation for this information collection at the following website: >
Washington, DC 20549-2736
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 30b1-4 (17 CFR 270.30b1-4) under the Investment Company Act of 1940 (15 U.S.C. 80a-1
The Commission estimates that there are approximately 2,207 funds registered with the Commission, representing approximately 11,890 fund portfolios that are required to file Form N-PX reports. The 11,890 portfolios are comprised of approximately 6,392 portfolios holding equity securities, 2,857 portfolios holding no equity securities, and 1,476 portfolios holding fund securities (
The estimated cost burden of Form N-PX is $1,000 in external costs per portfolio holding equity securities that is paid to third-party service providers. External costs for portfolios holding no equity securities have previously been estimated to be zero because portfolios holding no equity securities generally have no proxy votes to report and therefore do not require third-party service providers to assist with proxy voting and preparing reports on Form N-PX. The estimated cost burden of Form N-PX for fund of funds is estimated to be $100 per portfolio because fund of funds generally either have no proxy votes to report; or if proxy votes are reported, they are generally limited in the number of securities and the number of voting matters relative to portfolios holding equity securities. Therefore, the aggregate cost burden, when calculated using the current number of portfolios, is approximately $6.54 million in external costs.
Estimates of average burden hours and costs are made solely for the purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms. Compliance with the collection of information requirements of Form N-PX is mandatory. Responses to the collection of information will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website: >
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the current pilot program related to BX Equity 11, Rule 11890 (Clearly Erroneous Transactions) to the close of business on October 20, 2021.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to extend the current pilot program related to Equity 11, Rule 11890, Clearly Erroneous Transactions, to the close of business on October 20, 2021. The pilot program is currently due to expire on April 20, 2021.
On September 10, 2010, the Commission approved, on a pilot basis, changes to Equity 11, Rule 11890 that, among other things: (i) Provided for uniform treatment of clearly erroneous execution reviews in multi-stock events involving twenty or more securities; and (ii) reduced the ability of the Exchange to deviate from the objective standards set forth in the rule.
These changes were originally scheduled to operate for a pilot period to coincide with the pilot period for the Plan to Address Extraordinary Market Volatility (the “Limit Up-Limit Down Plan” or “LULD Plan”).
The Exchange now proposes to amend Equity 11, Rule 11890 to extend the pilot's effectiveness for a further six months until the close of business on October 20, 2021. If the pilot period is not either extended, replaced or approved as permanent, the prior versions of paragraphs (a)(2)(C), (c)(1), (b)(i), and (b)(ii) shall be in effect, and the provisions of paragraphs (g) through (i) shall be null and void.
The Exchange does not propose any additional changes to Equity 11, Rule 11890. Extending the effectiveness of Rule 11890 for an additional six months will provide the Exchange and other self-regulatory organizations additional time to consider whether further amendments to the clearly erroneous execution rules are appropriate.
The Exchange believes the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The Exchange believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning review of transactions as clearly erroneous. The Exchange believes that extending the clearly erroneous execution pilot under Equity 11, Rule 11890 for an additional six months would help assure that the determination of whether a clearly erroneous trade has occurred will be based on clear and objective criteria, and that the resolution of the incident will occur promptly through a transparent process. The proposed rule change would also help assure consistent results in handling erroneous trades across the U.S. equities markets, thus furthering fair and orderly markets, the protection of investors and the public interest. Based on the foregoing, the Exchange believes the amended clearly erroneous executions rule should continue to be in effect on a pilot basis while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposal would ensure the continued, uninterrupted operation of harmonized clearly erroneous execution rules across the U.S. equities markets while the Exchange and other self-regulatory organizations consider whether further amendments to these rules are appropriate. The Exchange understands that the other national securities exchanges and FINRA will also file similar proposals to extend their respective clearly erroneous execution pilot programs. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 15 (17 CFR 249.323) is a certification of termination of a class of security under Section 12(g) or notice of suspension of duty to file reports pursuant to Sections 13 and 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78a
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The public may view background documentation for this information collection at the following website:
Social Security Administration (SSA).
Notice of a new matching program.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a new matching program with the Bureau of the Fiscal Service (Fiscal Service), Department of the Treasury (Treasury). Under this matching program, Fiscal Service, Treasury will disclose savings security data to SSA. SSA will use the data to determine continued eligibility for Supplemental Security Income (SSI) applicants and recipients, or the correct benefit amount for recipients and deemors who did not report or
The deadline to submit comments on the proposed matching program is May 21, 2021. The matching program will be applicable on June 26, 2021, or once a minimum of 30 days after publication of this notice has elapsed, whichever is later. The matching program will be in effect for a period of 18 months.
You may submit comments by any one of three methods—internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2020-0041 so that we may associate your comments with the correct regulation.
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Interested parties may submit general questions about the matching program to Andrea Huseth, Division Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, G-401 WHR, 6401 Security Boulevard, Baltimore MD 21235-6401, at telephone: (410) 966-5855, or send an email to
None.
Surface Transportation Board.
Decision No. 3 in Docket No. FD 36500; notice of receipt of prefiling notification.
Canadian Pacific Railway Limited (Canadian Pacific), Canadian Pacific Railway Company (CPRC), and their U.S. rail carrier subsidiaries, Soo Line Railroad Company (Soo Line), Central Maine & Quebec Railway US Inc., Dakota, Minnesota & Eastern Railroad Corporation, and Delaware & Hudson Railway Company, Inc. (collectively, CP) and Kansas City Southern and its U.S. rail carrier subsidiaries, The Kansas City Southern Railway Company (KCSR), Gateway Eastern Railway Company, and The Texas Mexican Railway Company (collectively, KCS) (CP and KCS collectively, Applicants) have notified the Surface Transportation Board (Board) of their intent to file an application seeking authority for the acquisition of control by Canadian Pacific, through its indirect, wholly owned subsidiary Cygnus Merger Sub 2 Corporation (Cygnus Merger Sub 2 Corp.), of Kansas City Southern, and through it, of KCSR and its railroad affiliates, and for the resulting common control by Canadian Pacific of its U.S. railroad subsidiaries, and KCSR and its railroad affiliates. Applicants have indicated that 2019 will be the base year for their impact analysis and that they anticipate filing their application on or shortly after June 28, 2021.
Any filing submitted in this proceeding should be filed with the Board via e-filing on the Board's website. In addition, one copy of each filing must be sent (and may be sent by email only, if service by email is acceptable to the recipient) to each of the following: (1) Secretary of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590; (2) Attorney General of the United States, c/o Assistant Attorney General, Antitrust Division, Room 3109, Department of
Valerie Quinn at (202) 245-0283. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339.
Applicants state that, on March 21, 2021, Canadian Pacific (along with two of its wholly-owned subsidiaries, Cygnus Merger Sub 1 Corporation and Cygnus Merger Sub 2 Corp.) and Kansas City Southern entered into an Agreement and Plan of Merger (Merger Agreement) under which Canadian Pacific, through its indirect, wholly owned subsidiary, Cygnus Merger Sub 2 Corp., would acquire all of the capital stock of Kansas City Southern. (Notice of Intent 2.)
Applicants indicate that they will use 2019 as the base year for the impact analysis in the application and that they anticipate filing their application on or shortly after June 28, 2021. (Notice of Intent 1.)
1. This proceeding is assigned to Administrative Law Judge Thomas McCarthy for the handling of all discovery matters and initial resolution of all discovery disputes.
2. In addition to filing pleadings with the Board and serving copies on the Secretary of Transportation, the Attorney General of the United States, Applicants' representatives, and other parties of record, parties must send a copy of all filings and documents to Judge McCarthy at 1331 Pennsylvania Avenue NW, Washington, DC 20004-1710, and at
3. Judge McCarthy will be added to the service list in this proceeding and a copy of this decision will be served upon him.
4. A copy of this decision will be served on the U.S. Office of Personnel Management (OPM), at Human Resource Solutions, ALJ Program Office, 1900 E Street NW, Suite 2469, Washington, DC 20415-9400 and electronically at
5. This decision is effective on its service date.
By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and Schultz.
Office of the United States Trade Representative.
Notice.
The U.S. Trade Representative has determined not to list any countries as denying fair market opportunities for U.S. products, suppliers, or bidders in foreign government-funded airport construction projects.
Kate Psillos, International Procurement Negotiator,
Section 533 of the Airport and Airway Improvement Act of 1982, as amended by section 115 of the Airport and Airway Safety and Capacity Expansion Act of 1987, Public Law 100-223 (
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before May 11, 2021.
Send comments identified by docket number FAA-2020-0429 using any of the following methods:
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Deana Stedman, AIR-612, Federal Aviation Administration, 2200 South 216th Street, Des Moines, WA 98198, phone and fax 206-231-3187, email
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our
Written comments should be submitted by May 21, 2021.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Brian Konie, Rules and Regulations Group, Office of Policy, by email at:
No laser light show, projection system, or device may vary from compliance with 21 CFR 1040.11(c) in design or use without the approval of an application for variance in accordance with 21 CFR 1010.4. Those applying for an FDA variance (using and per FDA Form 3147), must make advance written notification as early as possible to FAA for any projections into open airspace at any time. To notify FAA of a proposed outdoor laser operation, proponents complete and submit FAA Form 7140-1, Notice of Proposed Outdoor Laser Operation(s), to FAA. FAA Form 7140-1 is the approved method for collecting information required to process submissions from proponents intending to project into open airspace.
FAA received one comment from two contributing authors. The comment supported past changes made to the technical aspects of FAA Form 7140-1 and raised multiple points with suggestions to improve, notably: Defining regulatory authority, when to submit a form, combining the form within another document, and clarifying language on the form. FAA appreciates the time taken by the authors to comment, acknowledges the suggestions, and intends to revise FAA Form 7140-1 to improve clarity.
Federal Aviation Administration (FAA), DOT.
Request for Public Comments.
Notice is being given that the FAA is considering a request from the Town of Fryeburg, ME to dispose of 2.0 Acres of land at Eastern Slopes Regional Airport, Fryeburg ME. The land was the site of the non-directional beacon located 10.2 nautical miles from the airport and was decommissioned and removed from the site. The land is no longer needed for aviation purposes and can be disposed without affecting future aviation needs of the airport. Ninety percent of the revenue generated by the disposal will be returned to the FAA and used for future airport grants.
Comments must be received on or before May 21, 2021.
You may send comments using any of the following methods:
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Interested persons may inspect the request and supporting documents by contacting the FAA at the address listed under
Mr. Jorge E. Panteli, Compliance and Land Use Specialist, Federal Aviation Administration New England Region Airports Division, 1200 District Avenue, Burlington, Massachusetts 01803. Telephone: 781-238-7618.
49 United States Code 47107(h)(2).
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's
Comments on this petition must identify the petition docket number and must be received on or before May 11, 2021.
Send comments identified by docket number FAA-2020-0492 using any of the following methods:
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Deana Stedman, AIR-612, Federal Aviation Administration, 2200 South 216th Street, Des Moines, WA 98198, phone and fax 206-231-3187, email
This notice is published pursuant to 14 CFR 11.85.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, this notice announces that FRA is forwarding the Information Collection Request (ICR) abstracted below to the Office of Management and Budget (OMB) for review and comment. The ICR describes the information collection and its expected burden. On December 18, 2020, FRA published a notice providing a 60-day period for public comment on the ICR.
Interested persons are invited to submit comments on or before May 21, 2021.
Written comments and recommendations for the proposed ICR should be sent within 30 days of publication of this notice to
Ms. Hodan Wells, Information Collection Clearance Officer, Office of Railroad Safety, Regulatory Analysis Division, Federal Railroad Administration, telephone: (202) 493-0440, email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages.
Before OMB decides whether to approve the proposed collection of information, it must provide 30 days for public comment. Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507(b)-(c); 5 CFR 1320.12(d);
Comments are invited on the following ICR regarding: (1) Whether the information collection activities are necessary for FRA to properly execute its functions, including whether the information will have practical utility; (2) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (3) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (4) ways to minimize the burden of information collection activities on the public, including the use of automated collection techniques
The summary below describes the ICR that FRA will submit for OMB clearance as the PRA requires:
Under 44 U.S.C. 3507(a) and 5 CFR 1320.5(b) and 1320.8(b)(3)(vi), FRA informs all interested parties that a respondent is not required to respond to, conduct, or sponsor a collection of information that does not display a currently valid OMB control number.
44 U.S.C. 3501-3520.
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice; request for comment.
The Surface Transportation Project Delivery Program (STPD Program), often referred to as the “NEPA Assignment Program,” allows a State to assume FRA's responsibilities for Federal environmental review, consultation, and compliance under the National Environmental Policy Act (NEPA), and other Federal environmental laws, for railroad projects. When a State assumes these responsibilities, it carries out the assigned environmental review process, in lieu of FRA. The STPD Program requires annual audits for the first four years of the State's lead role in the program to ensure compliance with program requirements. This notice requests comments on FRA's first audit report of the California High-Speed Rail Authority (CHSRA) under the STPD Program.
Comments must be received on or before May 21, 2021.
Comments related to Docket No. FRA-2021-0037 may be submitted by going to
Andréa Martin, Senior Environmental Protection Specialist, Office of Railroad Policy and Development (RPD), telephone: (202) 493-6201, email:
This report summarizes the results of FRA's first audit of CHSRA's conduct of its environmental review responsibilities under 23 U.S.C. 327, in accordance with the July 23, 2019, memorandum of understanding (section 327 MOU) between CHSRA and FRA.
To carry out its audit responsibilities under the section 327 MOU, FRA formed a team (Audit Team) in April 2020. The Audit Team consisted of NEPA subject matter experts (SMEs) from FRA's environmental and project management divisions and the John A. Volpe National Transportation Systems Center. In addition, FRA designated a Senior Environmental Protection Specialist to serve as a NEPA Assignment Program liaison to CHSRA. The Audit Team reviewed certain NEPA project documentation completed by CHSRA during the first year of the NEPA Assignment Program, and CHSRA's self-assessment of its NEPA Assignment Program. In addition, the Audit Team reviewed documents related to quality assurance and quality control (QA/QC) and conducted interviews with relevant CHSRA staff between December 8 and 10, 2020.
Overall, the Audit Team found that CHSRA is carrying out the responsibilities it has assumed and complies with the provisions of the section 327 MOU.
The STPD Program allows a State to assume FRA's environmental responsibilities for review, consultation, and compliance for railroad projects.
FRA published a notice of the draft MOU in the
Section 327(g) requires the Secretary of Transportation (Secretary) to conduct annual audits during each of the first four years of State participation. After the fourth year, the Secretary must monitor the State's compliance with section 327 MOU, but no longer conducts audits. The results of each audit must be made available for public comment.
FRA's annual audits are the primary mechanism to (1) oversee the State's compliance with this MOU and applicable Federal laws and policies; (2) determine the State's attainment of the performance measures identified in part 10 of the section 327 MOU; and (3) collect information needed for the Secretary's annual report to Congress pursuant to 23 U.S.C. 327(i). FRA will conduct three more annual audits consistent with 23 U.S.C. 327(g) and part 11 of the section 327 MOU. FRA must present the results of each audit in a report and make the report available for public comment in the
Consistent with the section 327 MOU, the Audit Team examined a sample of CHSRA's NEPA project files; CHSRA's self-assessment report; and CHSRA policies, guidance, and manuals relating to NEPA responsibilities. The scope of the project file portion of the audit included a review of six reexaminations for previously approved Final Environmental Impact Statements (EIS) and one Final EIS/Record of Decision (ROD), representing all projects in process or initiated after the section 327 MOU's effective date through June 30, 2020. In conducting the audit, and to determine compliance with the section 327 MOU, the FRA Audit Team focused on objectives related to six NEPA Assignment Program Elements: Program management, documentation and records management, QA/QC, training, performance measurement, and legal sufficiency. Each NEPA Assignment Program Element is described further below.
The Audit Team interviewed 11 CHSRA staff, in one of CHSRA's three regional offices, and at its headquarters office. In addition, the Audit Team interviewed one staff member from the U.S. Environmental Protection Agency. The Audit Team invited CHSRA staff, middle management, counsel, and executive management to participate in the interview process to ensure representation of a diverse range of staff expertise, experience, and program responsibility.
To evaluate CHSRA's performance against its documented procedures, the Audit Team compared the procedures outlined in CHSRA's environmental manuals and policies to the information obtained during staff interviews and project file reviews. The Audit Team documented observations under the six NEPA Assignment Program Elements.
Overall, CHSRA has carried out the environmental responsibilities assumed through the section 327 MOU and the Audit Team found that CHSRA is complying with the section 327 MOU.
Consistent with part 4 of the section 327 MOU, CHSRA has developed and implemented the updated Environmental Policies and Procedures Handbook, Environmental Compliance Program Manual, a QA/QC Plan, and the NEPA Assignment Training Course. CHSRA has also conducted the required self-assessment.
CHSRA has incorporated the NEPA Assignment Program into its overall project development process included in CHSRA's environmental manuals and policies. CHSRA has also created a NEPA assignment team in the CHSRA headquarters office to support the new responsibilities under the NEPA Assignment Program. To ensure NEPA Assignment responsibilities are fulfilled, CHSRA staff at the headquarters office review projects for compliance with assigned environmental laws and regulations independently from staff responsible for developing the NEPA and related documentation, as required in part 3 of the section 327 MOU.
CHSRA environmental staff at the three regional offices coordinate their NEPA related project-work with headquarters staff through NEPA Coordinators. Prior to assuming responsibilities under the NEPA Assignment Program, CHSRA regional staff reported to their regional office. However, following its assumption of FRA's NEPA responsibilities, CHSRA hired a NEPA Assignment Manager in the headquarters office who is responsible for overseeing CHSRA's policies, manuals, guidance, and training under the NEPA Assignment Program. CHSRA also has assigned a team of attorneys to advise on the environmental review process. The legal team includes both CHSRA in-house counsel and outside counsel, who advise on issues relate to the assigned responsibilities.
Since the NEPA Assignment Program became effective, CHSRA staff noted that their relationship with resource agencies has not changed, and the overall environmental and consultation process has continued without significant change. FRA's Audit Team's review of project files supports this conclusion.
Between July 23, 2019, and June 30, 2020, CHSRA made 22 NEPA auditable actions. Employing judgmental sampling, the Audit Team reviewed seven NEPA project files; six were reexaminations of previously approved Final EISs and one was a combined Final EIS/ROD. These projects represented a sampling of CHSRA environmental review efforts in process, or initiated after, the section 327 MOU's effective date through June 30, 2020, covering a range of resource considerations and agency coordination requirements. The Audit Team found that CHSRA maintained a complete final electronic record, including all NEPA-related documentation.
The Audit Team recognized several CHSRA efforts to ensure consistency of project documentation through CHSRA's use of an accessible file database. Interviews with CHSRA staff indicated that the regional staff consistently manage project files, including working files. In addition, CHSRA uses a software program to document public and resource agency comments, allowing CHSRA to track comments, responses, and resolution.
Under part 10.2.B of the section 327 MOU, CHSRA has agreed to carry out regular QA/QC activities to ensure the assumed responsibilities are conducted in accordance with applicable law and the section 327 MOU. The Audit Team noted that CHSRA has implemented a QA/QC program where environmental staff in the three regions coordinate with the NEPA assignment team within the headquarters office. The NEPA assignment team is responsible for reviewing all NEPA documentation and technical reports to ensure compliance. CHSRA staff also have access to SMEs for various environmental resources and regulations. During interviews, CHSRA staff noted that the NEPA assignment team acts independently to provide unbiased and objective reviews of work products. The Audit Team also found that regional staff understands how to implement the QA/QC process throughout the environmental review process.
During subsequent audits, the FRA Audit Team will require that CHSRA provide FRA with supporting QA/QC documentation associated with project files. This will allow the Audit Team to confirm QA/QC measures are being fully implemented for the projects under review. The Audit Team also recommends that CHSRA review a judgmental or random sampling of projects between FRA's annual audits to check compliance and identify potential improvements that can be made to the QA/QC process.
CHSRA committed to implementing training necessary to meet its environmental obligations under the section 327 MOU. CHSRA developed its NEPA Assignment Training Plan to fulfill the requirements of part 12 of the section 327 MOU. The training covers all topics related to CHSRA's responsibilities under NEPA assignment. Based on interviews and a review of training documentation and records, all CHSRA staff received the training in accordance with the training plan after the MOU was executed.
The FRA Audit Team recommends that CHSRA expand its training plan to include additional training opportunities. This training could include formal or informal training with State and Federal resource agencies, in addition to the regularly scheduled agency coordination meetings.
In accordance with part 10.1.1 of the section 327 MOU, FRA and CHSRA have established performance measures that CHSRA will seek to attain and that FRA will consider during FRA's audits.
CHSRA is still in the early stages of developing metrics to track attainment of performance measures outlined in the section 327 MOU. However, based on the results of the audit review and interviews, the FRA Audit Team found that CHSRA is implementing the performances measures. CHSRA environmental leadership staff indicated they will continue to implement the performance measures in part 10 of the section 327 MOU.
CHSRA conducts a legal sufficiency review at various stages of the environmental review process, consistent with existing internal procedures. This review is generally conducted by outside counsel and CHSRA attorneys. CHSRA attorneys are responsible for making the final written determination regarding legal sufficiency of EISs prior to their publication.
FRA provided this draft audit report to CHSRA for a 21-day review and comment period. The FRA Audit Team considered CHSRA comments in developing this draft audit report. This draft audit report is available for public review for a 30-day comment period in accordance with 23 U.S.C. 327(g). No later than 60 days after the close of the comment period, FRA will respond to all comments submitted to finalize this draft audit report pursuant to 23 U.S.C. 327(g)(B). FRA will publish the final audit report in the
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, this notice announces that FRA is forwarding the Information Collection Request (ICR) abstracted below to the Office of Management and Budget (OMB) for review and comment. The ICR describes the information collection and its expected burden. On December 30, 2020, FRA published a notice providing a 60-day period for public comment on the ICR.
Interested persons are invited to submit comments on or before May 21, 2021.
Written comments and recommendations for the proposed ICR should be sent within 30 days of publication of this notice to
Ms. Hodan Wells, Information Collection Clearance Officer, Office of Railroad Safety, Regulatory Analysis Division, Federal Railroad Administration, telephone: (202) 493-0440, email:
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages.
Before OMB decides whether to approve the proposed collection of information, it must provide 30 days for public comment. Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507(b)-(c); 5 CFR 1320.12(d);
Comments are invited on the following ICR regarding: (1) Whether the information collection activities are
The summary below describes the ICR that FRA will submit for OMB clearance as the PRA requires:
Under 44 U.S.C. 3507(a) and 5 CFR 1320.5(b) and 1320.8(b)(3)(vi), FRA informs all interested parties that a respondent is not required to respond to, conduct, or sponsor a collection of information that does not display a currently valid OMB control number.
44 U.S.C. 3501-3520.
National Highway Traffic Safety Administration, Department of Transportation (DOT).
Receipt of petition.
This document announces the National Highway Traffic Safety Administration (NHTSA) receipt of a petition for a decision that model year (MY) 2020-2021 GMC Sierra 2500HD Trucks (TKs) that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS) with a GVWR range of 6,105-6,950 lbs., are eligible for importation into the United States because they are substantially similar to vehicles that were originally manufactured for sale in the United States and that were certified by their manufacturer as complying with the safety standards (the U.S.-certified version of the 2020-2021 GMC Sierra 2500HD TKs) and are capable of being readily altered to conform to the standards.
The closing date for comments on the petition is May 21, 2021.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
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•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard along with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Robert Mazurowski, Office of Vehicle Safety Compliance, NHTSA (202-366-1012).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same MY as the model of the motor vehicle to be compared,
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice of each petition that it receives in the
Diversified Vehicle Services Inc. (DVS), (Registered Importer R-98-165), of Indianapolis, Indiana has petitioned NHTSA to decide whether nonconforming 2020-2021 GMC Sierra 2500HD TKs are eligible for importation into the United States. The vehicles which DVS believes are substantially similar are MY 2020-2021 GMC Sierra 2500HD TKs sold in the United States and certified by their manufacturer as conforming to all applicable FMVSS.
The petitioner claims that it compared non-U.S. certified MY 2020-2021 GMC Sierra 2500HD TKs to their U.S. certified counterparts and found the vehicles to be substantially similar with respect to compliance with most FMVSS.
DVS submitted information with its petition intended to demonstrate that non-U.S. certified MY 2020-2021 GMC Sierra 2500HD TKs, as originally manufactured, conform to many applicable FMVSS in the same manner as their U.S.-certified counterparts, or are capable of being readily altered to conform to those standards. Specifically, the petitioner claims that the non-U.S. certified MY 2020-2021 GMC Sierra 2500HD TKs, as originally manufactured, conform to: FMVSS Nos.102,
The petitioner also contends that the subject non-U.S. certified vehicles are capable of being readily altered to meet the following FMVSS, in the manner indicated:
FMVSS No. 101,
The petitioner additionally states a reference and certification label will need to be added to the left front door post area to meet the requirements of 49 CFR part 567.
49 U.S.C. 30141(a)(1)(A), (a)(1)(B), and (b)(1); 49 CFR 593.7; delegation of authority at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration, Department of Transportation (DOT).
Receipt of petition.
This document announces the National Highway Traffic Safety Administration (NHTSA) receipt of a petition for a decision that model year (MY) 2020-2021 GMC Sierra Trucks (TKs) that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS) with a GVWR range of 4,520-5,270 lbs, are eligible for importation into the United States because they are substantially similar to vehicles that were originally manufactured for sale in the United States and that were certified by their manufacturer as complying with the safety standards (the U.S.-certified version of the 2020-2021 GMC Sierra TKs) and are capable of being readily altered to conform to the standards.
The closing date for comments on the petition is May 21, 2021.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard along with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Robert Mazurowski, Office of Vehicle Safety Compliance, NHTSA (202-366-1012).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same MY as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice of each petition that it receives in the
Diversified Vehicle Services Inc. (DVS), (Registered Importer R-98-165), of Indianapolis, Indiana has petitioned NHTSA to decide whether nonconforming 2020-2021 GMC Sierra TKs are eligible for importation into the United States. The vehicles which DVS believes are substantially similar are MY 2020-2021 GMC Sierra TKs sold in the United States and certified by their manufacturer as conforming to all applicable FMVSS.
The petitioner claims that it compared non-U.S. certified MY 2020-2021 GMC Sierra TKs to their U.S. certified counterparts and found the vehicles to be substantially similar with respect to compliance with most FMVSS.
DVS submitted information with its petition intended to demonstrate that non-U.S. certified MY 2020-2021 GMC Sierra TKs, as originally manufactured, conform to many applicable FMVSS in the same manner as their U.S.-certified counterparts, or are capable of being readily altered to conform to those standards. Specifically, the petitioner claims that the non-U.S. certified MY 2020-2021 GMC Sierra TKs, as originally manufactured, conform to: FMVSS Nos.102,
The petitioner also contends that the subject non-U.S. certified vehicles are capable of being readily altered to meet the following FMVSS, in the manner indicated:
FMVSS No. 101,
The petitioner additionally states a reference and certification label will need to be added to the left front door post area to meet the requirements of 49 CFR part 567.
49 U.S.C. 30141(a)(1)(A), (a)(1)(B), and (b)(1); 49 CFR 593.7; delegation of authority at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration, Department of Transportation (DOT).
Receipt of petition.
This document announces the National Highway Traffic Safety Administration (NHTSA) receipt of a petition for a decision that model year (MY) 2020-2021 GMC Sierra 3500HD Trucks (TKs) that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS) with a GVWR range of 6,231-7,059 lbs, are eligible for importation into the United States because they are substantially similar to vehicles that were originally manufactured for sale in the United States and that were certified by their manufacturer as complying with the safety standards (the U.S.-certified version of the 2020-2021 GMC Sierra 3500HD TKs) and are capable of being readily altered to conform to the standards.
The closing date for comments on the petition is May 21, 2021.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard along with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Robert Mazurowski, Office of Vehicle Safety Compliance, NHTSA (202-366-1012).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same MY as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice of each petition that it receives in the
Diversified Vehicle Services Inc. (DVS), (Registered Importer R-98-165), of Indianapolis, Indiana has petitioned NHTSA to decide whether nonconforming 2020-2021 GMC Sierra 3500HD TKs are eligible for importation into the United States. The vehicles which DVS believes are substantially similar are MY 2020-2021 GMC Sierra 3500HD TKs sold in the United States and certified by their manufacturer as conforming to all applicable FMVSS.
The petitioner claims that it compared non-U.S. certified MY 2020-2021 GMC Sierra 3500HD TKs to their U.S. certified counterparts and found the vehicles to be substantially similar with respect to compliance with most FMVSS.
DVS submitted information with its petition intended to demonstrate that non-U.S. certified MY 2020-2021 GMC Sierra 3500HD TKs, as originally manufactured, conform to many applicable FMVSS in the same manner as their U.S.-certified counterparts, or are capable of being readily altered to conform to those standards. Specifically, the petitioner claims that the non-U.S. certified MY 2020-2021 GMC Sierra 3500HD TKs, as originally manufactured, conform to: FMVSS Nos.102,
The petitioner also contends that the subject non-U.S. certified vehicles are capable of being readily altered to meet the following FMVSS, in the manner indicated:
FMVSS No. 101,
The petitioner additionally states a reference and certification label will need to be added to the left front door post area to meet the requirements of 49 CFR part 567.
49 U.S.C. 30141(a)(1)(A), (a)(1)(B), and (b)(1); 49 CFR 593.7; delegation of authority at 49 CFR 1.95 and 501.8.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 21, 2021.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Center for Verification and Evaluation, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Center for Verification and Evaluation, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 21, 2021.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 21, 2021.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration (VBA), Department of Veterans Affairs.
Notice.
Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before June 21, 2021.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the western distinct population segment of the yellow-billed cuckoo (western yellow-billed cuckoo) (
This rule is effective May 21, 2021.
This final rule is available on the internet at
The coordinates or plot points or both from which the maps are generated are included in the decisional record for this critical habitat designation and are available at
Michael Fris, Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, California 95825; or by telephone 916-414-6600. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS) at 800-877-8339.
On October 3, 2013 (78 FR 61621), we published a proposed rule to list the western distinct population segment (DPS) of the yellow-billed cuckoo as threatened. On August 15, 2014 (79 FR 48547), we published a proposed rule to designate critical habitat for the DPS. On October 3, 2014 (79 FR 59992), we published the final listing rule, which added the western yellow-billed cuckoo to the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations at 50 CFR 17.11(h) as a threatened species. On February 27, 2020 (85 FR 11458), we published a revised proposed critical habitat designation and opened a public
We reviewed the site-specific comments related to critical habitat for the western yellow-billed cuckoo (see Summary of Comments and Recommendations), completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act, reviewed our analysis of the Physical or biological features (PBFs) essential to the long-term conservation of the western yellow-billed cuckoo, reviewed the application of our conservation strategy and criteria for identifying critical habitat across the range of the western yellow-billed cuckoo to refine our designation, and completed the economic analysis of the designation. This final rule incorporates changes to our 2020 revised proposed critical habitat rule based on the comments that we received, and have responded to in this document, and considers efforts to conserve the western yellow-billed cuckoo.
As a result, our final designation of critical habitat reflects the following changes from the February 27, 2020, revised proposed rule (85 FR 11458):
(1) We revised unit areas based on comments received regarding areas that did or did not contain the physical or biological features essential to the conservation of the species.
(2) We revised Federal, Tribal, and private land ownership information regarding Unit 70 (UT-1) based on information received from Duchesne County, Utah.
(3) We excluded approximately 172,490 ac (69,808 ha) from entire or portions of Units as identified in Table 3, Areas Excluded by Critical Habitat Unit.
(4) In the revised proposed rule, we misidentified the acreage of off-site restoration areas identified in the Lower Colorado River Multi-Species Conservation Program Habitat Conservation Plan (LCR MSCP HCP). We now acknowledge this miscalculation and as a result of the HCP providing conservation for the western yellow-billed cuckoo and its habitat, we are excluding from this designation all lands that were identified as proposed critical habitat within the planning area.
(5) The U.S. Forest Service (USFS) suggested that the Tucson Audubon Society (MacFarland and Horst 2015) did not survey Unit 44 (AZ-32, California Gulch). We corrected the unit description with survey information used to determine occupancy for this unit.
(6) We updated the climate change information with new references based on comments.
(7) We corrected a number of errors in unit length, acreage, and descriptions.
(8) We clarified that Rockhouse Demonstration Site on the Salt River inflow to Roosevelt Lake was not included as critical habitat.
(9) In the revised proposed rule, we failed to identify potential exclusions for San Carlos Apache parcels on the lower San Pedro River and Aravaipa Creek and for Eagle Creek on the San Carlos Apache Tribal lands. These Tribal lands have been excluded. We corrected ownership and operation of San Carlos Apache Reservoir and Coolidge Dam.
In the revised proposed critical habitat rule, we stated that a draft analysis document under the National Environmental Policy Act (NEPA) for the designation of critical habitat was made available to the public for comment. We have now finalized an environmental assessment with a finding of no significance under NEPA. The document and finding of no significance is available at
We also finalized our information pertaining to our economic analysis after considering public comment on the draft document. The final document (IEc 2020, entire) is available at
The western yellow-billed cuckoo is a migratory bird species, traveling between its wintering grounds in Central and South America and its breeding grounds in North America (Continental United States and Mexico) each spring and fall often using river corridors as travel routes. Habitat conditions through most of the western yellow-billed cuckoo's range are often dynamic and may change condition or location within or between years depending on environmental conditions, vegetation growth, tree regeneration, plant maturity, stream dynamics, and sediment movement and deposition. The species' major food resources (insects) are also similarly variable in abundance and distribution. As a result, the western yellow-billed cuckoo's use of an area is tied to the area's habitat condition and food resources, which as stated, can be variable between and within years. This variability in resources may cause the western yellow-billed cuckoo to move between areas in its wintering or breeding grounds to take advantage of habitat conditions and food availability. For a thorough discussion of the western yellow-billed cuckoo's biology and natural history, including limiting factors and species resource needs, please refer to the proposed and final rules to list this species as threatened published in the
We requested written comments from the public on the initial proposed (2014) and revised proposed (2020) designation of critical habitat for the western yellow-billed cuckoo during multiple comment periods. The first comment period opened on August 15, 2014, and closed on October 14, 2014 (79 FR 48548). The comment period was reopened from November 12, 2014, to January 12, 2015 (79 FR 67154). On December 2, 2014, we announced a public hearing which was held in Sacramento, California, on December 18, 2014 (79 FR 71373). On February 27, 2020, we opened a comment period on the revised proposed critical habitat (85 FR 11458). The comment period closed on April 27, 2020.
In our 2014 proposed rule designating critical habitat, we contacted appropriate Federal, State, Tribal governments, and local agencies; scientific organizations; and other interested parties, and invited them to comment on the proposed critical habitat designation and 2014 draft economic analysis. We also held a public hearing in December 2014 in Sacramento, California, and received comments from scientific experts,
During the comment period on the 2014 proposed rule, we received nearly 1,200 written comments as well as over 87,000 form letters on the proposed critical habitat designation or the draft economic analysis (IEc 2013, entire). During the comment period on the revised proposed rule, we received an additional 99 comment letters and over 6,000 form letters on the revised proposed critical habitat designation or the draft economic analysis (IEc 2019, entire; IEc 2020, entire). We also received from several parties additional requests for exclusion of areas that were not identified in the revised proposed rule. We reviewed each exclusion request and whether the requester provided information or a reasoned rationale to initiate an analysis or support an exclusion (see Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act: 81 FR 7226; February 11, 2016). All substantive information provided during each comment period has either been incorporated directly into this final determination or addressed in our responses below.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review actions under the Act, we solicited expert opinion on the 2014 proposed critical habitat from six knowledgeable individuals with scientific expertise that includes familiarity with the western yellow-billed cuckoo and its habitat, biological needs, and threats. We received responses from four of the peer reviewers. In 2020, during the public comment period, we received comments from one of the peer reviewers regarding our revised proposed rule. We addressed the 2014 and 2020 peer reviewer comments in this final rule as appropriate.
We reviewed all the comments we received from the peer reviewers for substantive issues and new information regarding the western yellow-billed cuckoo and its habitat use and needs. The peer reviewers generally concurred with the information regarding the western yellow-billed cuckoo and its habitat. In some cases, they provided additional information, clarifications, and suggestions to improve the designation. Our revised designation was developed in part to address some of the concerns and information raised by the 2014 peer reviewers. The reviewers also provided or corrected references we cited in the proposed rule. The additional details and information have been incorporated into this final listing rule as appropriate. Substantive comments we received from peer reviewers as well as Federal, State, Tribal, and local governments, nongovernmental organizations, and the public are outlined below.
In regard to the commenter's request to exclude their rights-of-way areas from the critical habitat designation, the commenters provided general statements of their desire to be excluded but no information or reasoned rationale as described in our preamble discussion in our policy on exclusions (see Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act: 81 FR 7226; February 11, 2016) (Policy on Exclusions) or as described in our 2020 revised proposed rule (85 FR 11502). For the Service to properly evaluate an exclusion request, the commenter must provide information concerning how their rights-of-way maintenance activities would be limited or curtailed by the designation, and hence the need for exclusion. In addition, as noted above, the requirement to consult with us on Federal actions that may affect designated critical habitat is designed to allow actions to proceed while avoiding destruction or adverse modification of critical habitat.
In the Policy on Exclusions, we outline the procedures we undertake when determining if an area should or should not be excluded. In determining whether or not to exclude an area, the Secretary is given a great deal of discretion for undertaking an exclusion analysis or determining to exclude an area. In our review of their request of exclusion, we determined that the effect of having critical habitat designated in their rights-of-way would be to require consultation with us for those Federal agency actions that may affect such designated critical habitat. In addition, we determined that this consultation requirement would not preclude these rights-of-way maintenance activities from occurring, and subsequently would not result in a potential for increased risk of wildfires, power outages, or injury to human life and property.
We also reviewed Reclamation's request for excluding the two areas associated with Caballo Reservoir (Unit 39, NM-8A and NM-8B) and determined that exclusion of these areas is appropriate. See Exclusions (
With respect to the remaining area within Unit 37 (NM-6B), we have no information indicating that designation of these areas as critical habitat would prevent IBWC from implementing the treaty or meeting their water delivery commitments, or would otherwise disrupt water management actions. For example, our economic analysis did not identify water delivery or other water management actions as incurring significant costs as a result of designating these areas, nor did it anticipate that water operations would
In regard to the IBWC's request to exclude areas in Unit 20 due to potential impacts to waste water treatment facilities, we have no information indicating that such impacts are likely. Due to the arid nature of the Southwest and lack of consistent water flows, waste water treatment facilities often assist in maintaining river flows and may benefit riparian habitat (Luthy
In response to the Commission's request that the two units be excluded in their entirety based on the Middle Rio Grande Endangered Species Collaborative Program (Program), we have determined that the exclusion would not be appropriate for several reasons. Although we commend the Program for investing time, effort, and funding for conservation on the Middle Rio Grande, the habitat conservation efforts to date that have been implemented are focused on instream restoration for the Rio Grande silvery minnow, and conservation efforts for the western yellow-billed cuckoo have been mostly associated with surveying, monitoring, and non-habitat related efforts (MRGESCP 2003, entire). In identifying critical habitat for the western yellow-billed cuckoo, we identified those areas that meet the definition of critical habitat at section 3(5)(A) of the Act. Although management actions for one listed species may overlap other species' habitat or be mutually beneficial to multiple listed species, the physical and biological features in occupied habitat for yellow-billed cuckoo differ from the physical and biological features identified for the Rio Grande silvery minnow. We reviewed the habitat restoration efforts conducted by the Middle Rio Grande Endangered Fish Recovery Program and found that the vast majority of habitat management actions were focused on instream water management and fish habitat and not western yellow-billed cuckoo habitat. Instream habitats do not contain the physical or biological features essential to the conservation of the western yellow-billed cuckoo and therefore are not considered critical habitat. As a result, excluding these areas based on management for listed fish species does not meet our criteria for exclusion.
The Service did not include all habitats where the species breeds, feeds, migrates, and stops over as critical habitat. Our designation of critical habitat focuses on selected areas used for breeding by the western yellow-billed cuckoo, and as a result purposefully does not include all breeding areas used by the species.
We do not consider the western yellow-billed cuckoo to be a habitat generalist. As explained in our revised proposed rule, western yellow-billed cuckoos in ephemeral drainages in the southwestern United States are found in drainages with sparse, patchy, or dense tree cover, high humidity, and increased insect availability. Our description of habitat and inclusion of additional PBFs for the species is due to greater specificity as to the types of habitat used by the western yellow-billed cuckoo and not an abandonment or reclassification of habitat historically described for the species. Ephemeral drainages associated with monsoon events are relatively small and within a specific geographic area in southeastern Arizona.
In response to AGFD's questions regarding our methodology for determining occupancy, we followed the Act's requirement that we determine occupancy based on areas that are occupied at the time of listing. We revised our language within the unit descriptions to more accurately describe occupancy status of the areas. We agree that survey information in Arizona identified by Corman and Magill (2000) cannot provide definitive occupancy or breeding information due to the survey methodology used in the study. We also agree that statewide protocol surveys would provide additional information on western yellow-billed cuckoo distribution and breeding. We used numerous sources to make our determination of occupancy and breeding status for the areas identified as critical habitat; we determined that these sources viewed in combination constitute the best scientific and commercial information available.
Under the Act, we are required to designate critical habitat as long as we find that the designation is prudent and determinable as we did for the western yellow-billed cuckoo. Given that the western yellow-billed cuckoo in Arizona occupies a variety of riparian habitats and its range overlaps with several other listed species, designating critical habitat would potentially provide additional funding through section 6 of the Act and support the State's other conservation programs.
Tamarisk can provide habitat for the western yellow-billed cuckoo, especially in areas where altered river flows have caused the native vegetation to become degraded. We compiled the currently known information for western yellow-billed cuckoo's use of tamarisk and included information in the rule. Western yellow-billed cuckoos breed in tamarisk, especially if mixed with other native habitat.
Regarding economic costs to State agencies, exhibit 3 of the economic analysis presents the unit incremental administrative costs of section 7 consultation used in the economic analysis. The total unit cost presented in that exhibit includes costs to the Service, other Federal agencies, and third parties. State agencies receiving Federal funds to conduct projects would be considered third parties in consultation and thus are represented in the cost estimates produced by the economic analysis. The analysis estimates that the incremental costs
We completed our status review and published our not warranted 12-month finding in the
AGFD recommended exclusion of some AGFD properties under HCPs or conservation management. In our evaluation of areas to be excluded from the final designation, we identified the Upper Verde Wildlife Area, the Alamo Lake Wildlife Area, and State lands covered under the LCR MSCP (see Exclusions).
The OSC stated that the Service should leverage existing collaborative efforts and implement landscape-scale partnerships and incentivize ecologically-based cooperative water management practices to conserve riparian and western yellow-billed cuckoo habitats while providing
The designation of critical habitat requires Federal agencies to consult with the Service on activities they conduct, permit, or fund. Because the areas being designated are occupied, the Federal agencies managing water storage and delivery infrastructures already must ensure that their operations do not jeopardize western yellow-billed cuckoo due to the threatened status of the species. Our economic analysis did not identify significant additional costs associated with the designation of critical habitat as the measures that may be required would likely be the same as those necessary under the jeopardy analysis other than administrative analysis of any adverse modification review for the agencies' actions.
Collaborative multi-stakeholder cooperative partnerships can be important to long-term conservation of sensitive species and their habitats while still allowing for the interests of stakeholders and needs of the public to continue. However, we are required to designate critical habitat for threatened and endangered species where we find the designation to be both prudent and determinable as is the case with the western yellow-billed cuckoo. In our development of critical habitat, we consider designating those areas with the PBFs essential to the conservation of the species and not based on land ownership, unless limiting the designation to just Federal lands provides for the conservation of the species. In our proposed rule, we solicited the public for information regarding potential exclusion of areas based on management plans or other conservation efforts including partnerships and we engaged with our partners regarding excluding private lands within the units identified in Idaho. We received a request to only include private lands with landowner consent from OSC; however, we received no information from private landowners to exclude their specific lands in Idaho.
We do not agree that specific areas and essential features within critical habitat do not require special management considerations or protection because adequate protections are already in place. In
In this final rule, we excluded State lands that have management measures in place to protect habitat for the western yellow-billed cuckoo (see Exclusions, Private or Other Non-Federal Conservation Plans or Agreements and Partnerships, in General). We value our partnership with New Mexico State agencies and appreciate the conservation efforts associated with the NMDGF State Wildlife Action Plan and coordination with the Service on endangered and threatened wildlife conservation measures and commitments through the consultation process. State Wildlife Action Plans, including the NMDGF State Wildlife Action Plan (NMDGF SWAP 2016, entire), are planning documents that provide a high level overview of the status of species and habitats within each State and are not a plan which specifically implements conservation measures, provides management direction, or ensures specific project or species funding. In some cases, these conservation efforts identified in State Wildlife Action Plans may aid in general riparian health, which in some cases, indirectly benefit western yellow-billed cuckoos. However, the NMDGF and the NMDA did not provide a reasoned explanation that the benefits of exclusion outweigh the benefits of inclusion in support of a request for exclusion. As a result, we did not conduct an exclusion analysis specific to New Mexico State lands. In addition, State agencies receiving Federal funds to conduct projects would be considered third parties in consultation and thus are represented in the cost estimates produced by the economic analysis. The economic analysis found that the incremental economic costs associated with critical habitat to third parties such as States would be minimal.
In accordance with our requirements to coordinate with Tribes on a government-to-government basis, we solicited information from and met with members of the Fort Mojave Indian Tribe; Colorado River Indian Reservation; Fort Yuma Indian Reservation; Cocopah Tribe; Yavapai-Apache Nation; Hualapai Indian Tribe; San Carlos Reservation; Navajo Nation; Santa Clara, Ohkay Owingeh and San Ildefonso Pueblos; Cochiti, Santo Domingo, San Felipe, Sandia, Santa Ana and Isleta Pueblos; Shoshone-Bannock, Fort Hall Reservation; the Cachil DeHe Band of Wintun Indians; and the Ute Tribe of the Uinta and Ouray Reservations regarding the designation of critical habitat for the western yellow-billed cuckoo. The comments we received from the Tribes included revisions to Tribal ownership and requests to be excluded from the
We have reviewed their requests and excluded all the Tribal lands from the final designation under section 4(b)(2) of the Act. See Exclusions (
Our
For activities that have a Federal nexus on the Ute Reservation, the consultation history for impacts to the species has been minimal. The economic analysis estimated that the annual rate of expected consultations for the entire Unit 70 would be less than one per year (0.8) (IEc 2020, Exhibit A-2). As result of excluding the Tribal lands, we would expect even fewer consultations for the area.
In 2016, we issued a biological opinion to the USFS for Rosemont Copper's proposed activities (Service 2016b, entire). We subsequently received notification from the USFS that they had suspended all activities under the Rosemont Project Mine Plan of Operations due to litigation and court ruling to halt the project (Dewberry 2019, entire; Helminger 2019). In 2019, we suspended our 2016 biological opinion and its accompanying incidental take statement (Service 2019b, entire). On February 10, 2020, we received an adverse ruling on our biological opinion (Case 4:17-cv-00475-JAS Document 291). The USFS and Corps did not request an appeal of this decision. As a result of these court rulings, Rosemont's claim (James 2020, entire) that impacts to critical habitat have already been analyzed under the jeopardy standard is not correct. In addition, review of critical habitat is not reviewed under the jeopardy standard but rather under the different adverse modification standard. Should Rosemont Copper wish to resume seeking Federal permits for their activities, the Federal agencies would need to consult with the Service and obtain a new biological opinion for incidental take and adverse modification review.
In reviewing areas to designate critical habitat, we used the best scientific and commercial information available to determine those areas that are occupied and contain the physical or biological features essential to the conservation of the species. Western yellow-billed cuckoo use of the area during the breeding season is well documented and the area meets our criteria and conservation strategy for designation.
The commenters expressed their confidence in the ability to deliver conservation benefit to the western yellow-billed cuckoo by way of the mitigation, management, and monitoring strategies in the MSCP. However, the commenters did state that large-scale Federal actions outside of Pima County's control could have significant negative impacts on species and lands under their management. The
In regard to economic benefits, a primary reason for conducting the economic analysis is to provide information regarding the economic impacts and benefits associated with a critical habitat designation. Executive Order 12866 directs agencies to assess the costs and benefits of any regulatory action. The primary intended benefit of critical habitat is to support the conservation of threatened and endangered species, such as the western yellow-billed cuckoo. However, public perception of limits imposed by the regulation may inadvertently cause changes in future land use, and as a result may provide additional benefits to the species and its habitat. In our economic analysis, data limitations prevented us from quantifying such additional economic benefits. Quantification of these benefits would require primary research and the generation of substantial amounts of new data, which is beyond the scope of our analysis and Executive Order 12866.
Prior to publication of the revised proposed rule, we completed a draft NEPA analysis for the designation of critical habitat and made the document available to the public by request or through the Sacramento Fish and Wildlife Office website. After the public comment period and our determination of the areas to be designated, we finalized an environmental assessment with a finding of no significance under NEPA. In our process for excluding areas from critical habitat, we conduct a balancing analysis describing the benefits of including an area as critical habitat versus the benefits of excluding an area as critical habitat. Our reasoning and logic for coming to our conclusion on whether we are or are not excluding an area is included for each exclusion and follows our Policy for Exclusions (81 FR 7226) (see Exclusions).
As for using other species' management plans as justification to exclude an area, we do this on a case-by-case basis. For us to consider use of other species' management plans, we look to whether habitat needs and use are similar for each species to the point that the management of the other species' habitat will also benefit the western yellow-billed cuckoo. For this designation we have looked at numerous southwestern willow flycatcher management plans and found that in cases where breeding areas overlap, management actions to protect and conserve riparian habitat are generally consistent for both species and that using these plans is appropriate for conservation of the western yellow-billed cuckoo.
Restoration of habitat to eliminate tamarisk could benefit the western yellow-billed cuckoo. However, the restoration of riparian habitat is difficult and requires long-term commitments from stakeholders. Mere removal of tamarisk, despite being a nonnative species, would be strongly discouraged regardless if the area is within critical habitat or not. In Arizona and New Mexico, the western yellow-billed cuckoo uses and breeds in tamarisk-dominated sites, especially if other native vegetation components still exist at the site. The western yellow-billed cuckoo also uses areas dominated by tamarisk for foraging. Actions to remove tamarisk and restore riparian vegetation would also need to go through section 7 consultation or section 10 permitting requirements due to the western yellow-billed cuckoo being listed as a threatened species with critical habitat being evaluated only as to whether Federal actions carried out, funded or permitted would adversely modify such areas as defined by the Act.
The western yellow-billed cuckoo is protected by all the section 9 prohibitions under the Act, which includes actions that harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct. Pesticide use and application for agricultural purposes, including use of rotenone, is already regulated under Federal, State, and County laws, regulations, or permits. Such application takes into account measures to avoid and reduce impacts to wildlife and nontarget areas. Expanding additional area around critical habitat is not the intent of designation under the Act and our implementing regulations. In determining critical habitat, we are to identify those areas essential to the conservation of the species by identifying areas that contain those physical or biological features used by the species. Including additional areas that do not contain any physical or biological features would be contrary to our implementation of the Act.
As a result of comments received, we reviewed our conservation strategy and made minor edits and included additional language for its justification
Although we didn't complete a carrying capacity for the designation as suggested by the commenters, based on the information available, some areas have sufficient habitat that is underused by the species. One example of this is habitat along the Sacramento River in California. In our designation of critical habitat, we included a large extent of habitat along the Sacramento River, which, despite losses, has had a large population of breeding western yellow-billed cuckoos. In recent years, this area has been and continues to be the focus of numerous habitat restoration efforts to assist in development of riparian habitat for numerous sensitive and listed species. Although these restoration efforts have made more habitat available, the western yellow-billed cuckoo has not reoccupied these areas; consequently, habitat is not currently considered a limiting factor for the species (Dettling
Our intent of identifying cattle grazing in the 2020 revised proposed rule was not to imply that all cattle grazing activities are detrimental to habitat for the western yellow-billed cuckoo; on the contrary, we mentioned cattle grazing to identify areas where proper grazing operations have been implemented to either coexist or enhance habitat conditions. We have clarified the language regarding livestock grazing in this final rule. Our economic analysis of the incremental impacts of critical habitat did not identify significant costs attributed to the designation of critical habitat for livestock grazing operations throughout the designation.
Our maps in the proposed and this final designation follow certain guidelines to incorporate such maps within the
In determining critical habitat, as described in our 2020 revised proposed and in this final rule, we developed a conservation strategy to identify those areas essential to the conservation of the western yellow-billed cuckoo as defined under section 3(5)(A)(i) of the Act. Because one or more of the physical or biological features identified for the western yellow-billed cuckoo occur throughout most areas occupied by the DPS, we used the conservation strategy to assist us in determining those areas that are essential to the conservation of the species.
Our economic analysis appropriately considers those incremental effects of the designation of critical habitat and applies costs to the incremental actions and not additional costs for actions in unoccupied habitat. As stated above, because we consider the areas occupied, the majority of costs associated with the designation are incremental to costs to Federal agencies for actions they conduct, fund, or permit that may affect the species. With the addition of critical habitat, Federal agencies will now also analyze whether their actions within the critical habitat boundaries result in adverse modification or destruction of designated critical habitat, and we consider those costs to be administrative in extent.
In regard to expanding our textual exclusion descriptions, our descriptions are adequate and the list of manmade features are merely examples of the types of features that do not constitute critical habitat within the designated areas. The commenter should focus on whether the feature is manmade and hardened such that any physical or biological features would not be present. In response to vegetation clearing from right-of-ways see our response to Comments 7 and 56 above.
The Swan Valley locations recommended for inclusion constitute habitat supportive of the western yellow-billed cuckoo; however, they are isolated from other areas of habitat, and the observation record indicates it is only sporadically occupied. The Boise River is considered to be periodically used by western yellow-billed cuckoo as stop-over habitat, but also does not have consistent use associated with breeding individuals of the species. As a result, we did not consider critical habitat in these areas based on our Conservation Strategy and criteria for designating critical habitat.
The designation of critical habitat does not authorize the Service to regulate private actions on private lands or to confiscate private property as a result of a critical habitat designation. Designation of critical habitat does not affect land ownership or establish any closures or restrictions on use of or access to the designated areas. Critical habitat designation also does not establish specific land management standards or prescriptions, although Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. We conducted an economic analysis on the revised proposed critical habitat designation. The economic analysis took into consideration the incremental economic impacts above those associated with listing of the species as threatened under the Act. Because the species is listed, private and local land-owners
In the event that powerline construction and/or maintenance result in adverse effects to the species and/or critical habitat, consultation with the Service is expected to occur to provide exemptions to the prohibitions of section 9 in the Act. As noted above, our Policy on Exclusions outlines the procedures we follow for considering and conducting exclusions (81 FR 7226). In this case, the commenter provided general statements of its desire for rights-of-way to be excluded but did not provide any additional information or a reasoned rationale that would
When we mapped the boundaries for the proposed critical habitat, we avoided identifying agricultural lands within the proposed designation because these lands generally do not provide the physical or biological features that are essential to the conservation of the western yellow-billed cuckoo. In addition, any agricultural lands included within the boundary of the proposed designation would likely not be considered critical habitat because these lands do not contain the physical or biological features necessary for yellow-billed cuckoo habitat. In our evaluation of the economic impacts that may result from the proposed designation of critical habitat for the western yellow-billed cuckoo (IEc 2019, entire; IEc 2020, entire), we identified probable incremental economic impacts associated with agriculture and found that the critical habitat designation for the western yellow-billed cuckoo would not significantly affect agricultural operations.
The Service acknowledges that significant debate has occurred regarding whether assessing the impact of critical habitat designations using the incremental approach is appropriate, with several courts issuing divergent opinions. Most recently, the Ninth Circuit concluded that the incremental approach is appropriate (
As described in section 3 of the economic analysis, incremental changes in land management are unlikely to result from the designation of critical habitat. Furthermore, all of the proposed critical habitat is considered to be occupied by the species, thus the listing of the species also serves as encouragement for wildlife watchers to visit these areas. Therefore, in this instance, critical habitat designation is unlikely to incrementally affect the types of ancillary benefits described by the commenters.
As described in the economic analysis, the designation of critical habitat may cause developers or landowners to perceive that private lands will be subject to use restrictions or litigation from third parties, resulting in costs. Data limitations prevent the quantification of the possible incremental reduction in property values. However, data on current land values suggest that even if such costs occur, the rule is unlikely to meet the threshold for an economically significant rule, with regard to costs, under E.O. 12866.
However, the Service recognizes the potential for landowners' perceptions of the Act to influence land use decisions, including decisions to participate in Federal programs such as those managed by NRCS. Several factors can influence the magnitude of perception-related effects, including the community's experience with the Act and understanding of the degree to which future section 7 consultations could delay or affect land use activities. Information is not available to predict the impact of the designation of critical habitat on landowners' decisions to pursue cost-share projects with NRCS in
For activities that do have a Federal nexus for section 7 consultation, the Service does not anticipate conservation measures above and beyond those needed for conserving the listed western yellow-billed cuckoo. Section 3 of the economic analysis outlines the substantial baseline protections currently afforded the western yellow-billed cuckoo throughout the proposed designation. These baseline protections result from the listing of the western yellow-billed cuckoo under the Act and the presence of the species in all proposed critical habitat units, as well as overlap with habitat of other, similar listed species and designated critical habitat. As a result of these protections, the economic analysis concludes that incremental impacts associated with section 7 consultations for the western yellow-billed cuckoo are likely limited to additional administrative effort.
Fort Huachuca also requested exclusion of critical habitat on areas outside the installation's jurisdiction. The Fort suggested that the base's groundwater may be impacted and result in reduced operational capacity in the future. The Fort is aware of our position that groundwater impacts will not occur as a result of the designation of critical habitat and the designation will not impact the Army's military operations. We reviewed their request and determined that the installation did not provide support for such an exclusion (see Exclusions,
In addition, because all proposed critical habitat units for the western yellow-billed cuckoo are considered occupied by the species, all projects with a Federal nexus will be required to consult with the Service under section 7 of the Act regardless of whether critical habitat is designated. As a result, the designation of critical habitat for the western yellow-billed cuckoo is unlikely to result in incremental delays to projects.
In regard to State and private landowner burden, critical habitat designations do not constitute or create a regulatory burden by themselves, in terms of regulations on private landowners carrying out private activities, but in certain areas they might trigger additional State regulatory reviews and other requirements. Our economic analysis did not find that there would be significant impacts for third party entities (
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will consider unoccupied areas to be essential only where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species (50 CFR 424.12(b)(2)).
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as the features that occur in specific areas and that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.
We derive the specific physical or biological features required for the western yellow-billed cuckoo from studies of this species' habitat, ecology, and life history as described below. Additional information can be found in the proposed and final listing rules published in the
Older studies were geographically limited in their scope but nevertheless established a suite of habitat characteristics that became the archetype for western yellow-billed cuckoo breeding habitat. However, habitat conditions across the DPS range vary considerably, and more recent investigations that included other areas within the western yellow-billed cuckoo's breeding range found that large areas of riparian woodland vegetation are not the only areas used by the species for nesting. We describe both the rangewide and southwestern breeding habitat below with particular emphasis on describing the southwestern habitat, because it is less well known as providing habitat for the western yellow-billed cuckoo.
In addition to cottonwood and willow, riparian vegetation may include tree species other than cottonwood and willow, including but not limited to boxelder (
Western yellow-billed cuckoos have also been found nesting in orchards adjacent to riparian habitat during the breeding season (Laymon 1980, pp. 6-8; Laymon 1998, p. 5). Five pairs of western yellow-billed cuckoos were found nesting along the Sacramento River in a poorly groomed English walnut orchard that provided numerous densely foliaged horizontal branches on which western yellow-billed cuckoos built their nests (Laymon 1980, pp. 6-8). These western yellow-billed cuckoos that nested in the orchard did not forage there, but flew across the river to forage in riparian habitat. Kingsley (1985, pp. 245-249; 1989, p. 142) described western yellow-billed cuckoos as being abundant in the pecan groves in Green Valley and Sahuarita, Arizona, with an estimated density of one nesting pair per 10 ac (4 ha). We consider these agricultural nesting sites to be the exception rather than the preferred nesting habitat for the species due to the paucity of reports identifying such nesting. In mapping the boundaries of the critical habitat, we avoided identifying agricultural lands within the designation. Any agricultural lands inadvertently within the boundary of the designation would not be considered critical habitat because those areas do not contain the physical or biological features.
Southwestern breeding habitat may be less than 325 ft (100 m) wide due to narrow canyons or limited water availability that do not allow for development of wide reaches of habitat. Southwestern breeding habitat is often but not always 200 ac (81 ha) or more in size, and may consist of a series of smaller tree and large shrub patches separated by openings. Occurring in both low- and high-gradient drainages, slope does not appear to be a factor in whether or not western yellow-billed cuckoos select these areas for nesting. Canopy closure is variable, and where trees are sparsely scattered, it may be dense only at the nest tree or small grove including the nest tree. The North American Monsoon brings high humidity and rainfall to some of these habitats especially in the ephemeral drainages in southeastern Arizona where winters are mild and warm, wet summers are associated with the monsoon and other tropical weather events (Wallace
Riparian and xeroriparian drainages in southwestern breeding habitat bisect other habitats and often contain a mix of habitats including but not limited to Madrean evergreen woodland (Madrean encinal and Madrean pinyon-juniper), desert grassland (including semi-desert grassland), or desert scrub (including mesquite (
Occupied habitat within a single drainage may include both rangewide breeding habitat and southwestern breeding habitat, transitioning from large stands of gallery riparian forest to mesquite woodland, or narrow or patchy stands of riparian or xeroriparian habitat. These perennial and intermittent drainages include but are not limited to parts of the Gila River, upper Verde River, Blue River, Eagle Creek, Tonto Creek, San Francisco River, Aravaipa Creek, San Pedro River, lower Cienega Creek, Mimbres River, and the Rio Grande (Corman and Magill 2000, pp. 37-48; Sogge
In more intermittent and ephemeral drainages that bisect Madrean evergreen woodlands, desert scrub, and desert grasslands in montane canyons, foothills, bajadas, and desert floodplains of southeastern Arizona, riparian and xeroriparian trees and large shrubs may be present, but are often sparsely distributed or in a narrow band along the drainage bottom. The hillsides immediately adjacent to the tree-lined drainages range from dense woodlands to sparsely treed savannahs with a variety of grasses, contributing toward foraging and breeding habitat for the western yellow-billed cuckoo. Tree and large shrub species such as mesquite, hackberry, acacia, mimosa, and greythorn are present in desert scrub and desert grassland habitats (NatureServe 2013, pp. 88, 134). Madrean evergreen woodland habitat contains oak, mesquite, juniper, acacia, and hackberry (Brown 1994, pp. 59-62) in southeastern Arizona and southwestern New Mexico's mountain ranges, and resembles habitat found in the Sierra Madre Occidental of Mexico. In southeastern Arizona, occupied southwestern breeding habitat that contains a more arid mix of species is found in drainages in the Santa Catalina Mountains, Rincon Mountains, Santa Rita Mountains, Patagonia Mountains, Huachuca Mountains, Pajarito/Atascosa Mountains, Whetstone Mountains, Dragoon Mountains, and Buenos Aires National Wildlife Refuge, among others (Corman and Magill 2000, pp. 37-48; American Birding Association 2014, entire; Griffin 2015, pp. 17-25; MacFarland and Horst 2015, pp. i-iii, 2, 5-7, 9-12; Tucson Audubon Society 2015, p. 44; Arizona Game and Fish Department 2018, entire; Dillon
Remnant mesquite bosques, historically extensive throughout the Southwest along major rivers, still occupy some wide floodplains of the lower Colorado River, Gila, Salt, San Pedro, Santa Cruz, and Rio Grande Rivers in Arizona and New Mexico. In Sonora, Mexico, mesquite bosques where western yellow-billed cuckoos have nested have also been greatly reduced (Russell and Monson 1988, p. 131). For example, Arizona's upper San Pedro River contains extensive reaches of mesquite bosque breeding habitat adjacent to the cottonwood and willow dominated breeding habitat in a broad floodplain.
Arid conditions and water management in the Southwest often influence stream flows into and downstream of reservoirs, limiting riparian vegetation regeneration, growth, and survival. In Arizona and New Mexico, narrow or patchy riparian breeding habitat can be found adjacent to heavily managed floodplains (such as areas within Caballo Reservoir and the Lower Rio Grande for example (White
In a study on the Coronado National Forest, Arizona, Madrean evergreen woodland drainages used by western yellow-billed cuckoos were dominated by oak trees, often with mesquite trees flanking the riparian strip (MacFarland and Horst 2015, pp. 1, 7). The drainages often merge into the surrounding vegetation of juniper. In the wettest reaches of the drainages, the oaks are interspersed with Arizona sycamore, hackberry, willows, occasionally cottonwoods, and a few other infrequently occurring species such as Arizona ash and Arizona walnut (MacFarland and Horst 2015, p. 1). Total canopy cover in occupied habitat was about 52 percent, with oaks as the predominant overstory species recorded (overall average 35 percent), followed by mesquite (20 percent), and juniper (16 percent). The most frequent riparian overstory species were sycamore (3 percent) followed by hackberry (5 percent) and willow (2 percent). The average height of the most prevalent overstory tree species at each point recorded was 20 ft (6.1 m). Habitat occupied during the breeding season (which we also refer to as territories even though western yellow-billed cuckoos may not defend habitat (Hughes 2015, p. 3)) tended to have a higher percentage of mesquites in the community composition, while unoccupied survey points had a higher percentage of junipers (MacFarland and Horst 2015, pp. 9-10). Western yellow-billed cuckoo detections ranged in elevation from 3,564 to 5,480 ft (1,086 to 1,670 m) (MacFarland and Horst 2015, p. 10).
Few western yellow-billed cuckoo detection records in southwestern New Mexico exist between 1998 and 2014 in Madrean evergreen woodland and
Western yellow-billed cuckoos will sometimes build their nests and forage in tamarisk, but there is usually a native vegetation component within the occupied habitat (Gaines and Laymon 1984, p. 72; Johnson
Although tamarisk monocultures generally lack the structural diversity of native riparian habitat, western yellow-billed cuckoos may use these areas for foraging, dispersal, and breeding, especially if the tamarisk-dominated sites retain some native trees. Tamarisk contributes cover, nesting substrate, temperature amelioration, increased humidity, and insect production where native habitat regeneration and survivability has been compromised by altered hydrology (
Past restoration efforts favored nonnative tamarisk removal without regard for its habitat suitability for the western yellow-billed cuckoo. In areas where tamarisk is a major component (or part of the understory), its removal may not be appropriate or recommended because western yellow-billed cuckoo habitat selection may be based on overstory/understory structure or annual variation in environmental factors and not on specific vegetation types (Halterman 2001, pp. 11, 15; Sechrist
Another issue in regard to tamarisk is the introduction of biocontrol agents to remove tamarisk. In 2001, the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) released various species of the nonnative tamarisk leaf beetle (
Some tamarisk removal and native tree replacement projects are under way to offset the arrival of tamarisk leaf beetles and subsequent defoliation (Service 2016b, pp. 4-15). If these projects are unsuccessful in sustaining native woodland habitat of at least the same habitat value as habitat that was removed, the end result will be a net loss of habitat. Another nonnative species identified as a biocontrol agent, the tamarisk weevil (
Along the Colorado River in California and Arizona, western yellow-billed cuckoos tend to favor larger riparian habitat sites for nesting (Laymon and Halterman 1989, p. 275): Sites less than 37 ac (15 ha) are considered unsuitable nesting habitat; sites between 37 ac (15 ha) and 50 ac (20 ha) in size were rarely used as nest sites; and habitat patches or aggregates of patches from 50 to 100 ac (20 to 40 ha) in size were considered marginal habitat (Laymon and Halterman 1989, p. 275). Vegetation data collected in more recent years along the lower Colorado River at 834 plots from 2006 through 2012 indicated the median size of occupied sites (92 ac (37 ha)) was almost three times as large as unoccupied sites (32 ac (13 ha)) (McNeil
In rangewide riparian breeding habitat and mixed riparian habitat in California, Arizona, and New Mexico, the home ranges used by the western yellow-billed cuckoo during the breeding season varied greatly (Laymon and Halterman 1987, pp. 31-32; Halterman 2009, p. 93; Sechrist
Home range size is unknown in southwestern breeding habitat, including in more xeroriparian woodland, desert scrub and desert grassland drainages with a tree component, and in Madrean evergreen woodland drainages. Whether the area is considered marginal, suitable, or optimal depends on numerous factors and is variable across the species' range. Breeding habitat in more arid regions of the Southwest may be made up of a series of adjacent or nearly adjacent habitat patches, less than 200 ac (81 ha) each, which combined make up suitable breeding habitat for the species. Often interspersed with large openings, these habitat patches include narrow stands of trees, small groves of trees, or sparsely scattered trees. For example, in the Agua Fria River in central Arizona, occupied habitat consists not only of mature cottonwood and willow gallery forest (multi-aged and multi-height forest) found in rangewide breeding habitat, but also smaller patches of young willows that are limited to narrow riparian corridors with mesquite on the adjacent terrace, characteristic of southwestern breeding habitat (Prager and Wise 2015, p. 13). In the bajadas, foothills, and mountain drainages of southeastern Arizona, scattered overstory trees, small patches of trees, or narrow stands of trees contain suitable breeding habitat (MacFarland and Horst 2015, entire, Corson 2018, pp. 5, 6-20; Sferra
Although large expanses of habitat are better than small patches for the species, small habitat patches should be evaluated when managing for the western yellow-billed cuckoo. The optimal minimum breeding habitat patch size of 200 ac (81 ha) may not be applicable for much of the Southwest, where breeding habitat may be narrower and patchier and areas of less than 40 ac (16 ha) may be used for breeding (Sechrist
Western yellow-billed cuckoos appear to stage (gather) in southern Arizona or northern Mexico pre- and post-breeding, suggesting that this region is important to the DPS (McNeil
The foraging distance and size of foraging habitat required by western yellow-billed cuckoo varies on prey availability and other environmental conditions and may vary annually and from site to site. A foraging area during the breeding season may overlap with other western yellow-billed cuckoo foraging areas if multiple nest sites are within a single area. Hughes (2015, p. 3) suggests that adjacent nesting western yellow-billed cuckoos use time spacing (
In the southwestern United States and northern Mexico, western yellow-billed cuckoo foraging habitat is usually more arid than adjacent occupied nesting habitat. Western yellow-billed cuckoos not only forage within woodland breeding habitat, but they also forage in almost any adjacent habitat. Desert vegetation in intermittent and ephemeral drainages or adjacent upland areas may require direct precipitation to flourish (Wallace
Therefore, based on the information above, for the majority of habitat within the species' range (rangewide breeding habitat), we identify rivers and streams of lower gradient and more open valleys with a broad floodplain, containing riparian woodland habitat with an overstory and understory vegetation component made up of various plant species (most often dominated by willow or cottonwood) to be physical or biological features essential to the conservation of the western yellow-billed cuckoo. In more arid regions of the southwestern United States (southwestern breeding habitat), we also identify reaches of more arid riparian and xeroriparian habitat (including mesquite bosques), desert scrub and desert grassland drainages with a tree component, and Madrean evergreen woodland drainages in low- to high-gradient drainages to be a physical or biological feature essential to the conservation of this species. These habitat types provide space for breeding, nesting, and foraging for the western yellow-billed cuckoo. These habitat features also provide for migratory or stop-over habitat and movement corridors for the western yellow-billed cuckoo.
Western yellow-billed cuckoos depend on an abundance of large, nutritious insect and vertebrate prey to survive and raise young. In portions of the southwestern United States, high densities of prey species may be seasonally found, often for brief periods of time, during the vegetation growing season. The arrival and nesting of western yellow-billed cuckoos typically coincides with the availability of prey, which is later than in the eastern United States (Hughes 2020, entire). Desiccated riparian sites produce fewer suitable insects than moist sites. In areas that typically receive rains during the summer monsoon, an increase in humidity, soil moisture, and surface
Therefore, we identify the presence of abundant, large insect fauna (
The North American Monsoon (monsoon) is a large-scale weather pattern that causes high humidity and a series of thunderstorms during the summer in northwestern Mexico and the southwestern United States (Erfani and Mitchell 2014, pp. 13,096-13,097; National Weather Service 2019, p. 4). It supplies about 60-80 percent of the annual precipitation for northwestern Mexico, 45 percent for New Mexico, and 35 percent for Arizona (Erfani and Mitchell 2014, p. 13,096). The monsoon typically arrives in early to mid-July in Arizona and New Mexico, where much of the rainfall occurs in the mountains (Erfani and Mitchell 2014, pp. 13,096-13,097; National Weather Service 2019, p. 2). The southwestern United States, at the northern edge of the monsoon's range, receives less and more variable rainfall than northwestern Mexico (National Weather Service 2019, p. 2).
Humid conditions created by the North American Monsoon (Erfani and Mitchell 2014, pp. 13,096-13,097; National Weather Service 2019, p. 2) and related surface and subsurface moisture appear to be important for the western yellow-billed cuckoo. The moisture provides a “green-up” (sudden germination or growth of vegetation) that attracts prey and improves habitat conditions. The species is restricted to nesting in moist riparian habitat or in drainages that bisect semi-desert, desert grasslands, desert scrub, and Madrean evergreen woodland in portions of the western United States and northern Mexico because of humidity requirements for successful hatching and rearing of young (Hamilton and Hamilton 1965, p. 427; Gaines and Laymon 1984, pp. 75-76; Rosenberg
Western yellow-billed cuckoos have evolved larger eggs and thicker eggshells, which help them cope with potential higher egg water loss in the hotter, drier conditions of the Southwest (Hamilton and Hamilton 1965, pp. 426-430; Ar
Seasonal precipitation results in vegetative regeneration in the intermittent and ephemeral drainages and adjacent desert scrub, desert grassland, and Madrean evergreen woodlands of the southwestern United States. High summer monsoonal humidity and rain lead to summer flow events in drainages and increased vegetative growth and associated insect production during the breeding season. The North American Monsoon promotes growth of shallow-rooted understory vegetation in mesquite-dominated woodlands, Madrean evergreen woodlands, desert scrub drainages, desert grassland drainages, and adjacent desert and grassland vegetation (Brown 1994, pp. 59-62; Wallace
Nesting continues through August and frequently into September in southeastern Arizona, likely in response to the increased food resources associated with the seasonal summer rains (Corman and Wise-Gervais 2005, p. 202). For example, the big poplar sphinx moth is an earth pupator (larvae burrow in the ground, and pupae emerge under certain environmental conditions) (Oehlke 2017, p. 5). The sphinx moth has a receptor that detects the water content of air to sense changes in humidity and when conditions are favorable for feeding and breeding (McFarland 1973, pp. 199-208; von Arx
A large proportion of the remaining occupied habitat persists in hydrologically altered systems in the
Subsurface hydrologic conditions are equally important to surface water conditions in determining riparian vegetation patterns. Depth to groundwater plays an important part in the distribution of riparian vegetation and western yellow-billed cuckoo habitat. Riparian forest trees need access to shallow groundwater to grow to the appropriate size and density to provide habitat for nesting, foraging, and migrating western yellow-billed cuckoos. Goodding's willows and Fremont cottonwoods do not regenerate successfully if the groundwater levels fall below 6 ft (2 m) from the surface (Shafroth
Therefore, based on the information above, we identify seasonally or perennially flowing rivers, streams, and drainages; elevated subsurface groundwater tables; vegetative cover that provides important microhabitat conditions for successful breeding and prey (high humidity and cooler temperatures); seasonal precipitation (winter and summer) in the Southwest; and high summer humidity as physical and biological features essential to the conservation of the western yellow-billed cuckoo.
In unmanaged hydrologic systems (natural riverine systems), associated with rangewide breeding habitat, this variability of water flow results in removal of stream banks and deposition of soil and sediments. These sediments provide areas for vegetation (especially cottonwood and willow) to colonize and provide diverse habitat for the western yellow-billed cuckoo. In managed hydrologic systems (systems controlled by dams), stream flow is often muted and does not provide the magnitude of these removal and deposition events except during flood events depending on stream-bank composition (Fremier
However, successional vegetation change that produces suitable habitat consisting of varied vegetative structure can also occur in managed river and reservoir systems (and in human-altered river systems) when managed to mimic natural stream flows, but sometimes with different vegetation species composition, at different timing, frequency, and magnitude than natural riverine systems. For example, varying amounts of western yellow-billed cuckoo habitat are available from month-to-month and year-to-year as a result of dam operations. During dry years, when lake levels may be low, vegetation can be established and mature into habitat for the western yellow-billed cuckoo. In wet years, this vegetation can be flooded for extended periods of time and be stressed or killed. This is particularly true of areas upstream of reservoirs like Lake Isabella in California, Roosevelt and Horseshoe Reservoirs in Arizona, and Elephant Butte Reservoir in New Mexico, all of which have relatively large western yellow-billed cuckoo populations. The filling and draw-down of reservoirs often mimics the flooding and drying events associated with intact riparian woodland habitat and river systems providing habitat for the western yellow-billed cuckoo.
In southern Arizona and New Mexico, where water is less available and releases do not mimic the natural hydrograph, riparian habitat is often narrower, patchier, sparser, and composed of more xeroriparian and nonriparian trees and large shrubs than in a free- flowing river. Habitat regeneration opportunities occur less frequently than in natural systems or managed systems that mimic the natural hydrograph. Prolonged drying and flooding from reservoir management can also affect food resources and habitat suitability for western yellow-billed cuckoos. For example, food availability is affected when prolonged inundation reduces survivability of ground-dwelling insects such as sphinx moth pupa or katydid eggs (Peterson
In the southwestern United States, the North American Monsoon season, which peaks in July and August when western yellow-billed cuckoos are breeding, provides about 45 percent and
Therefore, based on the information above, we identify flowing perennial rivers and streams and deposited fine sediments as physical and biological features essential to the conservation of the western yellow-billed cuckoo. These conditions may occur in either natural or regulated human-altered riverine systems. We also identify intermittent and ephemeral drainages and immediately adjacent upland habitat (which receive moisture as a result of summer monsoon events and other seasonal precipitation) that promote seed germination and regeneration as essential physical or biological features of western yellow-billed cuckoo habitat.
Therefore, we identify riparian trees, including but not limited to willow, cottonwood, alder, walnut, sycamore, boxelder, and ash that provide cover and shelter for nesting, foraging, and dispersing western yellow-billed cuckoos as physical or biological features essential to the conservation of the western yellow-billed cuckoo. In southwestern breeding habitat in more arid riparian drainages, in addition to the riparian species above, we identify oak, mesquite, hackberry, acacia, juniper, greythorn, mimosa, soapberry, desert willow, Russian olive, and tamarisk that provide cover and shelter for nesting, foraging, and dispersing western yellow-billed cuckoos as physical or biological features essential to the conservation of the western yellow-billed cuckoo.
Western yellow-billed cuckoo nests have been documented in Fremont cottonwood, Goodding's black willow (
In one study of a compilation of nests, nest site characteristics in rangewide riparian woodland breeding habitat have been compiled from 217 western yellow-billed cuckoo nests from primarily rangewide breeding habitat on the Sacramento and South Fork Kern Rivers in California, and the Bill Williams and San Pedro Rivers in Arizona. Western yellow-billed cuckoos generally nest in thickets dominated by willow trees along floodplains greater than 200 ac (81 ha) in extent and greater than 325 ft (100 m) in width. Nests are placed on well-foliaged branches closer to the tip of the branch than the trunk of the tree (Hughes 1999, p. 13). Nests are built from 4 ft to 73 ft (1 m to 22 m) above the ground (average 22 ft (7 m)). Nests at the San Pedro River averaged higher (29 ft (9 m)) than either the Bill Williams River (21 ft (6 m)) or the South Fork Kern River (16 ft (5 m)). Nest trees ranged from 10 ft (3 m) to 98 ft (30 m) in height and averaged 35 ft (11 m). In older stands, heavily foliaged branches that are suitable for nesting often grow out into small forest openings or over sloughs or streams, making for ideal nest sites. In younger stands, nests are more often placed in vertical forks or tree crotches. Most nest sites in the study were in rangewide riparian breeding habitat and were placed in willows (72 percent of 217 nests), in generally willow-dominated sites. Nests were also documented in other riparian tree species, including Fremont cottonwood (13 percent), mesquite (7 percent), tamarisk (4 percent), netleaf hackberry (
Canopy cover directly above the nest is generally dense (average cover is 89 percent) and is denser at the South Fork Kern River (93 percent) and Bill Williams River (94 percent) than at the San Pedro River (82 percent). Canopy closure in a plot around the nest averages 71 percent and was higher at the Bill Williams River (80 percent) than at the South Fork Kern River (74 percent) or San Pedro River (64 percent) (Laymon
In a study on a lower Colorado River revegetation site, where cottonwood, willow, and mesquite were planted yellow-billed cuckoos nested in cottonwoods (n = 95, 57.5 percent), Goodding's willows (n = 49, 29.7 percent), honey mesquite (
Some historical records document western yellow-billed cuckoo presence during the breeding season in extensive mesquite bosques on the Santa Cruz River and in the semi-desert grasslands and desert scrub xeroriparian drainages of Canelo Hills; and in the Madrean evergreen woodlands mountain drainages of the Atascosa, Pajarito, Santa Rita, Patagonia, Huachuca, and Chiricahua Mountains of Southeastern Arizona (Groschupf (1987, pp. 11, 14, 16; Corman and Magill 2000, pp. 26-29, 37). In Arizona in the late 1990s, western yellow-billed cuckoos were documented in Sycamore Canyon and Pena Blanca Canyon in the Atascosa Mountains, Canelo Hills, and in the desert scrub and grassland xeroriparian drainages in the Altar Valley on Buenos Aires National Wildlife Refuge (Corman and Magill 2000, pp. 38, 40-44, 48, 51). The first oak nest documented in a Madrean evergreen woodland drainage was found in the lower Santa Rita Mountains in 2014 (Tucson Audubon Society 2015, p. 44).
In a 2018-2019 study to confirm western yellow-billed cuckoo breeding (copulation, active nests, or fledged young), breeding was documented at 39 out of 51 occupied sites in ephemeral xeroriparian drainages in Madrean evergreen woodland, desert and semi-desert scrub, and semi-desert grassland habitats in southeastern Arizona. These 51 occupied drainages were in the lower Santa Catalina Mountains, lower Santa Rita Mountains, Patagonia Mountains, lower Atascosa Mountains, Altar Valley, Baboquivari Mountains, Canelo Hills, and Huachuca Mountains (Drost
Therefore, we identify rangewide riparian woodland generally containing willow and cottonwood, usually within floodplains greater than 200 ac (81 ha) in extent and greater than 325 ft (100 m) in width, with one or more densely foliaged nesting areas, to be a physical or biological feature essential to the conservation of the species. In some areas, we also identify southwestern breeding habitat (drainages with riparian, xeroriparian, and nonriparian tree and large shrub habitat intersecting desert scrub, desert grassland, and Madrean evergreen woodland, and Madrean pinyon-juniper woodland) that may be less than the 200-ac (81-ha) area, 325-ft (100-m) width with one or more nesting and foraging sites to be a physical or biological feature essential to the conservation of the species.
Changing climate is expected to place added stress on the species and its habitat. This change may reduce available nesting sites and patch size and affect prey abundance as a result of lower humidity in riparian areas from reduced moisture retention, through periods of prolonged desiccation, and through increased likelihood of scouring flood events (Melillo
According to 50 CFR 424.12(b)(1)(ii), we identify physical and biological features essential to the conservation of the species at an appropriate level of specificity using the best available scientific data. This analysis will vary between species and may include consideration of the appropriate quality, quantity, and spatial and temporal arrangements of such features in the context of the life history, status, and conservation needs of the species.
Given the wide variety and extent of foraging habitat outside the breeding habitat, and the large geographic areas in which western yellow-billed cuckoos search for food, we are not designating foraging habitat as critical habitat. Based on our current knowledge of the habitat characteristics required to sustain the species' life-history processes including breeding and dispersing, we have determined that the specific physical or biological features essential to the conservation of the western yellow-billed cuckoo consist of the following three components:
Physical or Biological Feature 1—Rangewide breeding habitat. Riparian woodlands across the DPS; Southwestern breeding habitat, primarily in Arizona and New Mexico: Drainages with varying combinations of riparian, xeroriparian, and/or nonriparian trees and large shrubs. This physical or biological feature includes breeding habitat found throughout the DPS range as well as additional breeding habitat characteristics unique to the Southwest.
a.
b.
Physical or Biological Feature 2—Adequate prey base. Presence of prey base consisting of large insect fauna (for example, cicadas, caterpillars, katydids, grasshoppers, large beetles, dragonflies, moth larvae, spiders), lizards, and frogs for adults and young in breeding areas during the nesting season and in post-breeding dispersal areas.
Physical or Biological Feature 3—Hydrologic processes. The movement of water and sediment in natural or altered systems that maintains and regenerates breeding habitat. This physical or biological feature includes hydrologic processes found in rangewide breeding habitat as well as additional hydrologic processes unique to the Southwest in southwestern breeding habitat:
a. Rangewide breeding habitat hydrologic processes (including the Southwest): Hydrologic processes (either natural or managed) in river and reservoir systems that encourage sediment movement and deposits and promote riparian tree seedling germination and plant growth, maintenance, health, and vigor (
b. Southwestern breeding habitat hydrologic processes: In southwestern breeding habitat, elevated summer humidity and runoff resulting from seasonal water management practices or weather patterns and precipitation (typically from North American Monsoon or other tropical weather events) provide suitable conditions for prey species production and vegetation regeneration and growth. Elevated humidity is especially important in southeastern Arizona, where western yellow-billed cuckoos breed in intermittent and ephemeral drainages.
Because the western yellow-billed cuckoo exists in noncontiguous areas across a wide geographical and elevational range and its habitat is subject to dynamic events, the areas described below (see Final Critical Habitat Designation) are essential to the conservation of the western yellow-billed cuckoo because they provide opportunities for breeding, allow for connectivity between habitat, assist in dispersal, provide redundancy to
Based on use of the areas for breeding, we conclude that all of the areas identified contain all or most of the physical or biological features, but in some cases, these features are less prevalent, or their presence is variable over time due to the changing nature of habitat from hydrologic processes. As stated above, all critical habitat units are considered to have been occupied at the time of listing.
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. Here we describe the type of special management considerations or protection that may be required for the physical or biological features identified for the western yellow-billed cuckoo above. The specific critical habitat units and subunits where these management considerations or protection may be required are identified in Table 2 below.
A detailed discussion of activities influencing the western yellow-billed cuckoo and its habitat can be found in the final listing rule (79 FR 59992, October 3, 2014). The above-described physical or biological features (PBFs) may require special management considerations or protection to reduce the following threats or potential threats: Disruption of hydrologic processes that are necessary to maintain a healthy riparian system; unauthorized or uncontrolled grazing; loss of habitat from development activities and extractive uses (sand, gravel, or mineral extraction); degradation of habitat as a result of expansion of nonnative vegetation; destruction of habitat by uncontrolled wildfire; reduction of prey insect abundance by the unauthorized or improper application of pesticides; removal of habitat by biocontrol insects; and habitat loss and degradation from invasive nonnative pest insects. More specific activities that may need special management are identified in Table 2, below.
Special management considerations or protection are required within critical habitat areas to address these threats. Management activities that could ameliorate these threats include (but are not limited to) the following: Monitoring and regulating stream flows below reservoirs to mimic natural flooding and other hydrologic processes to help maintain habitat; establishing permanent conservation easements or land acquisition to protect the species and its habitat; minimizing habitat disturbance, fragmentation, and destruction through use of best management practices; and providing appropriate buffers around western yellow-billed cuckoo habitat.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not currently designating any areas outside the geographical area occupied by the species because the western yellow-billed cuckoo is found throughout its historical range, nor are we designating all areas within the geographical area occupied by the species. Additional areas besides those identified as critical habitat may be important for recovery for the western yellow-billed cuckoo, but these areas were not identified as critical habitat; however, they may be part of future recovery planning efforts for the species.
To determine and select appropriate occupied areas that contain the physical or biological features essential to the conservation of the species, we developed a conservation strategy for identifying critical habitat for the species. The goal of our conservation strategy for the western yellow-billed cuckoo is to assist in recovery of the species to the point where the protections of the Act are no longer necessary. Other actions in addition to designating critical habitat may be necessary to achieve recovery of the species including development of additional management actions aimed at conserving, enhancing, and protecting the western yellow-billed cuckoo and its habitat. These actions would be further identified in a Recovery Plan for the species. The role of critical habitat in achieving this conservation goal is to identify the specific areas within the western yellow-billed cuckoo's range that provide essential physical and biological features, without which areas the DPS's rangewide resiliency, redundancy, and representation could not be achieved. This, in turn, requires an understanding of the fundamental parameters of the species' biology and ecology based on well-accepted conservation-biology and ecological principles for conserving species and their habitats, such as those described by Carroll
In developing our conservation strategy for determining what areas to include as critical habitat for the western yellow-billed cuckoo, we focused on the western yellow-billed cuckoo's breeding habitat. Breeding habitat includes areas for nesting and foraging and also provides for dispersal habitat when breeding or food resources may not be optimal. Breeding habitat is widely spread across the species' range and typically provides the physical and biological features essential to the conservation of the species without which rangewide resiliency, redundancy, and representation of the species could not be achieved. As explained further below, this focus led to the inclusion of breeding habitat within three general habitat settings as part of the conservation strategy. The three general settings include: (1) Large river systems (mainstem rivers and their tributaries) in the southern and central portions of New Mexico, Arizona, and along the California border with Arizona (generally referred to as the Southwest); (2) locations within southern Arizona not associated with major river systems or their tributaries; and (3) large river systems outside the Southwest (as identified in (1) above) that occur in
As discussed above, the western yellow-billed cuckoo is a migratory species that travels long distances to take advantage of localized food resource outbreaks or habitat availability. Maintaining breeding areas (which include nesting habitat, foraging habitat, and dispersal habitat) throughout the range of the western yellow-billed cuckoo allows for within-year and year-to-year movements to take advantage of any spatial and temporal changes in habitat resources and food abundance. We consider this necessary to conserve the species because of the dynamic nature of habitat used by the species. Identifying habitat across the species' range, but primarily in the Southwest where the core of the population breeds: (a) Helps maintain a robust, well-distributed population and enhances survival and productivity of the western yellow-billed cuckoo as a whole; (b) facilitates interchange of individuals between units; (c) promotes recolonization of any sites within the current range of the species that may experience declines or local extirpations due to low productivity or temporary habitat loss or changes in resource availability from the core population areas; and (d) allows for use of areas not being used as breeding in a given year as habitat for movement and dispersal.
The western yellow-billed cuckoo breeding coincides with moist and humid conditions that support abundant prey resources occurring in the temperate zones of the western United States and northern Mexico during the late spring and summer. Breeding areas of the western yellow-billed cuckoo occur primarily in riparian woodlands along perennial rivers or intermittent or ephemeral drainages containing vegetative structure, canopy cover, and appropriate environmental conditions. These areas provide suitable nesting habitat and adjacent foraging habitat with adequate food resources on a consistent basis to successfully produce and fledge young.
In general, the north-south migratory pathway of the western yellow-billed cuckoo funnels through northern Mexico into the American Southwest, with a significant portion of returning birds establishing breeding territories along large river systems (mainstem rivers and their tributaries) in the southern and central portions of New Mexico, Arizona, and along the California border with Arizona. A significant proportion of breeding western yellow-billed cuckoos also occurs in large river systems in northwestern Mexico, primarily in Sonora and Sinaloa, with smaller numbers in Chihuahua and Western Durango, and the tip of Baja California. While returning western yellow-billed cuckoos also establish breeding territories throughout portions of the western States north of Arizona and New Mexico, these large southwestern and Mexican river systems (including but not limited to the Lower Colorado, Salt, Virgin, San Pedro, Gila, Verde, and Rio Grande Rivers) serve as core breeding habitats for the western yellow-billed cuckoo as it returns from wintering grounds in South America. These core areas together provide a consistent, robust supply of resources necessary for the maintenance and expansion of western yellow-billed cuckoos into other habitats across the range. We consider the large river systems (mainstem rivers and their tributaries) in the southern and central portions of New Mexico, Arizona, and along the California border with Arizona to be core areas for conservation of the western yellow-billed cuckoo, and they constitute the first part of our conservation strategy in determining its critical habitat. The core mainstem rivers and streams along with their major tributaries and adjacent habitats contain the physical or biological features essential for the conservation of the western yellow-billed cuckoo.
However, these managed large river systems may not provide sufficient breeding habitat for the western yellow-billed cuckoo in all years (for example, in low flow years the amount of breeding habitat along rivers is diminished), and unregulated smaller tributaries supported or influenced by monsoonal weather patterns may assist in supporting breeding western yellow-billed cuckoos during low flow or drought conditions. Thus, the second part of our conservation strategy includes areas within southern Arizona not associated with major river systems or their tributaries as identified above. In southern Arizona, western yellow-billed cuckoo also use drier habitats for breeding sites in the desert, foothill, and mountain ephemeral drainages of southern Arizona and northwestern Mexico (including but not limited to desert grasslands and scrub, and Madrean evergreen woodland drainages). These areas receive moisture from the seasonal North American Monsoon weather systems and other summer tropical storm events. During the breeding season, these habitats experience a “flush” of vegetation and concurrent insect population eruptions, especially in the drainages receiving relatively more moisture than uplands.
A portion of the DPS uses these wet-seasonal or monsoonal habitats in southern Arizona and Mexico for breeding habitat. Use of these types of sites by the western yellow-billed cuckoo provides additional resiliency to the species due to the different weather patterns and hydrological regimes that produce the habitat conditions suitable for breeding. The availability of these additional resilient sites in southern Arizona and northwestern Mexico other than the large southwestern and Mexican river systems described above increases the overall redundancy for the species. Therefore, the southwestern monsoon-driven drainages with sufficient resources for western yellow-billed cuckoo foraging and successful breeding are essential for the overall resiliency and redundancy of the DPS and are therefore essential to allow for conservation of the western yellow-billed cuckoo across its range.
Finally, while large riverine riparian systems in the core area of the American Southwest are fundamentally important for their ability to contribute to the resiliency of the western yellow-billed cuckoo due to the abundance of birds in these areas, similar systems throughout the western yellow-billed cuckoo range are also likely important contributors to local resiliency and maintaining distribution of the western yellow-billed cuckoo across its range. These large river systems outside the Southwest that are being consistently used as breeding areas by western yellow-billed cuckoo have been identified as the third part of our conservation strategy for determining critical habitat. These areas are located in habitats identified as being within different ecological settings, eco-types, or physio-geographic provinces and provide for additional redundancy and representation for the western yellow-billed cuckoo across its breeding range. The physical and biological features of large river systems in differing habitats with sufficient resources for western yellow-billed cuckoo foraging and successful breeding are likely important for contributing to the western yellow-billed cuckoo's overall resiliency, redundancy, and representation, and are therefore essential for conservation of the western yellow-billed cuckoo across its range. Habitats and environmental settings in the arid Southwest differ significantly from those in central California or higher elevation areas of Utah, Idaho, or Colorado. By identifying known breeding habitat of appropriate size throughout the species' range, we
As discussed above, to assist in determining which areas to identify as critical habitat for the western yellow-billed cuckoo, we focused our selection on areas known to have breeding or suspected breeding. The western yellow-billed cuckoo is a migratory bird and travels long distances between its wintering grounds in Central and South America to its breeding grounds in Mexico and the Continental United States. As a result, the western yellow-billed cuckoo continues to be found in areas throughout its historical range in the west, including areas which it may pass through or stopover during its travels. Some of the areas it travels through or stops over at, may include parks, golf courses, or other areas not containing the physical or biological features essential to the conservation of the species. Other areas, such as historically occupied breeding areas also contain the physical or biological features for the species but are not occupied for breeding. Currently known or suspected breeding areas were selected as critical habitat because they contain the physical and biological features essential to the conservation of the species necessary for western yellow-billed cuckoos to produce offspring, have ample foraging habitat, vegetative structure, environmental conditions, and prey. By selecting breeding areas as critical habitat across the western yellow-billed cuckoo's range, we will assist in conserving the ability of the species to continue to occupy these areas. Moreover, the breeding habitat is most likely to be essential to the conservation of the species because of the importance of breeding for survival and recovery of the species.
For the 2014 proposed rule, we reviewed information between 1998 and 2014 to determine whether the area was occupied at the time of listing. For the 2020 revised proposed rule, we proposed additional units we consider to have been occupied at the time of listing using new data received through the 2017 breeding season. To further support designation of these units, we used additional occupancy or nesting data up until the 2020 breeding season.
We considered an area to be a breeding area if it was occupied by the western yellow-billed cuckoo in one of the following two ways:
• If western yellow-billed cuckoos were present in the area on one or more days between June 1 and September 30 (considered to be the primary breeding period) in at least two years between 1998 and 2014 (or later as described above); or
• If western yellow-billed cuckoos were confirmed to be a pair and nesting was observed (or there was evidence of nesting behavior) in at least one year between 1998 and 2014, regardless of the time of year. Thus, if the mated pair and evidence of nesting behavior was discovered prior to June 1, the area was considered to be a breeding area. Evidence of nesting behavior other than presence of an active nest includes copulation, food carries (bird does not eat food) to the same area, stick carries (nest building), multiple incidents of alarm calls, fledgling (unable to fly) with adult, distraction display (dropped wing), or pair exchanging multiple “kowlp” or alarm calls (not coos) within 100 m (328 ft) of one another (Service and Reclamation 2019).
In addition to these fundamental criteria established for breeding areas across the DPS range, we identified additional criteria for areas in the Southwest (Arizona and New Mexico). This was to take into account the migratory nature of the species moving up from Mexico through the Southwest, either to or from other breeding areas. The additional criteria is as follows:
• Areas in the Southwest were not considered to be breeding areas if the area contains only two western yellow-billed cuckoo records from different years, one of which was in September and no pairs were detected. Although western yellow-billed cuckoos are still breeding in September in Arizona, a September detection may or may not signify breeding due to birds migrating south or moving between breeding areas in Mexico.
As described above, to delineate the units of critical habitat, we first looked to those areas being used during the breeding season. We defined what we considered breeding areas as those areas that contained seasonal occurrences of the western yellow-billed cuckoo between 1998 and 2014, during the timeframe in which breeding typically occurs for the species in the United States (June-September). In limited instances, this timeframe was expanded into May if the information available confirmed breeding activity during this earlier timeframe. These breeding season occurrences (location points where western yellow-billed cuckoos were detected or breeding activity was confirmed) were then plotted on maps along with information on vegetation cover, topography, and aerial imagery. We then delineated habitat around that location, as well as riparian habitat (including xeroriparian and associated nonriparian habitat in the Southwestern drainages) upstream and downstream from the occurrence location.
We used survey data and reports prepared by the USGS, USFS, NPS, BLM, Reclamation, the Salt River Project, State wildlife agencies, State natural diversity data bases, Cornell Lab of Ornithology (eBird data), researchers, nongovernment organizations, universities, and consultants, as well as available information in our files, to determine the location of areas used for breeding within the geographical area occupied by the western yellow-billed cuckoo at the time of listing. As stated above, since 2014, we have become aware of additional areas occupied by the species with evidence of breeding. We still consider these areas to have been occupied by the species at the time of listing, based on habitat conditions and occupancy of nearby areas.
Because of the dynamic aspects of western yellow-billed cuckoo habitat as a result of potential flooding, changing river locations, and land uses, we used the active floodplain to identify where riparian habitat occurs. When delineating the critical habitat boundary, we included the surrounding contiguous suitable woodland habitat (including along the stream course and in immediate uplands for breeding, feeding, and sheltering) upstream and downstream until we identified a major break in the vegetation. In many drainages, we included these 0.25 miles (mi) (0.62 kilometers (km)) or more breaks in habitat to combine one or more areas if we determined that: (1) The gap in vegetation was within minor variances of this distance; (2) the habitat on the other side of the gap was a continuation of similar or better suitable habitat and included breeding occupancy as identified above; or (3) the gap in vegetation was determined to be a consequence of natural stream dynamics essential to the continuing function of the hydrologic processes of the occupied areas.
By including breaks in habitat and combining areas, we allow for regeneration of vegetation in these areas, which is often more productive and provides additional food resources for the species and allows for appropriate habitat conditions for use when dispersing to other breeding locations. Blocks of suitable habitat often contain openings that can change over time in dynamic riverine systems. Naturally occurring gaps in habitat following flooding and scouring are part of succession in riparian systems. In time, trees will regenerate and fill these
In California, western yellow-billed cuckoos forage mainly within the riparian woodland habitat or directly adjacent uplands when breeding (Laymon 1980, pp. 6-8; Hughes 2015, p. 12). In New Mexico, foraging activity has been observed in riparian habitat, immediately adjacent tree-covered habitat (including salt cedar) and a variety of upland habitats including desert scrub (Sechrist
Whether these habitat areas were included or combined into a single larger unit depended on the extent of use of the areas by western yellow-billed cuckoo, the relative amount of habitat gained if the multiple patches were included or combined, the relationship of the area to the overall designation, and the ease or complexity of removing all nonhabitat from the designation. In addition, by combining these areas, they then better meet an appropriate scale of analysis, given the data as is described in our regulations for determining critical habitat (50 CFR 424.12(b)(1)). For example, if a break in habitat occurred between an area with high occupancy with sufficient habitat and an area with low occupancy, the adjacent area may not have been included. Alternatively, if two smaller areas with relatively low occupancy were adjacent to each other, those areas most likely would have been combined to form a single, larger, more manageable area.
To distinguish between the western yellow-billed cuckoo more typical breeding habitat in riparian areas throughout the range from breeding habitat recently found in more arid areas of the Southwest, we use the terms “rangewide breeding habitat” and “southwestern breeding habitat,” respectively (see Space for Individual and Population Growth and for Normal Behavior below). In rangewide breeding habitat, we generally selected low-gradient streams containing the physical and biological features that were greater than 200 ac (81 ha)) in size. In considering the extent of each area, in some cases we included the entire streambed as well as the presently vegetated areas. Streams, especially those with intermittent flows, migrate within the streambed depending on flows and other natural fluvial processes. The vegetated areas within the streambed may also move to coincide with the stream movement. As a result, the whole area may not be contiguously vegetated. In these low-gradient rangewide riparian breeding habitats (
We have not included critical habitat units within Oregon or Washington because the species has been extirpated as a breeder from those States since at least the 1940s (Littlefield 1988, p. 2; Washington Department of Fish and Wildlife 2013, pp. 200-201), and recent observations of the species, although promising, have not coincided for the most part with suitable breeding habitat and appear to be dispersing but not breeding birds. We also did not include occupied areas within Montana, Nevada, and Wyoming. The reasons for not including critical habitat in these States is that sufficient areas already have been identified within this designation, and these areas do not meet our conservation strategy for designating critical habitat. The conservation strategy focuses on areas with confirmed breeding. No confirmed breeding has been identified in Montana or Wyoming. In Nevada, the only known areas where the western yellow-billed cuckoo has confirmed breeding is in the southern part of the State near the borders of California and Arizona. These habitats are essentially the same as those identified in the Southwest in Arizona and New Mexico, but do not significantly contribute to population numbers for the western yellow-billed cuckoo.
Sources of data reviewed or cited for this species in the development of critical habitat include peer-reviewed articles, information maintained by universities and State agencies, existing State management plans, species-specific reports, habitat information sources, climate change studies, incidental detections, and numerous survey efforts conducted throughout the species' range, including but not limited to the more recent information below: Corman and Magill 2000; Dockens and Ashbeck 2011a, 2011b; SRP 2011a, 2011b; Beason 2012; Dettling and Seavy 2012; Gardali
The amount and distribution of critical habitat that we are designating will give the western yellow-billed cuckoo the opportunity to potentially: (1) Maintain its existing distribution; (2) move between areas depending on food, resource, and habitat availability; (3) increase the size of the population to a level where it can withstand potentially negative genetic or demographic impacts; and (4) maintain its ability to withstand local- or unit-level environmental fluctuations or catastrophes.
When determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures or lands used as
We are designating as critical habitat areas that we have determined are occupied at the time of listing and are considered to still be occupied and that contain one or more of the physical or biological features that are essential to support life-history processes of the species. This variability is due to environmental conditions and the dynamic nature of the habitat used by the western yellow-billed cuckoo (see Species Information).
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on
We are designating 63 units as critical habitat for the western yellow-billed cuckoo. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the western yellow-billed cuckoo. The areas we are designating as critical habitat are located in Arizona, California, Colorado, Idaho, New Mexico, Texas, and Utah and are described below. Table 1 shows the critical habitat units and the approximate area of each unit. Land areas identified as “Other” include county, city, unclassified, or unknown land ownerships.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for western yellow-billed cuckoo, below. We also provide information on special management considerations or protection that may be required for the physical or biological features essential to the conservation of the species within each of those units. The special management considerations include actions to address the main threats to western yellow-billed cuckoo habitat and are grouped into three categories: (1) Threats from alteration of hydrology; (2) threats from floodplain encroachment; and (3) other identified threats. These threats and special management considerations are summarized in Table 2. See end of table for definition of codes.
It should be noted that the effects of climate change may influence streamflow, groundwater, wildfire, nonnative vegetation and other aspects of western yellow-billed cuckoo habitat within the proposed critical habitat. Because climate change is not a single threat but a condition that influences other impacts to habitat, we did not identify climate change as a single threat component.
Below we present brief descriptions of the units, their extent, and why the physical or biological features may require special management or protection. For readers interested in the underlying information and data supporting these unit descriptions, including units being excluded (
Unit 1: CA/AZ-1 Colorado River 1; Imperial, Riverside, and San Bernardino Counties, California, and Yuma and La Paz Counties, Arizona.
Critical habitat Unit CA/AZ-1 was proposed as containing 82,138 ac (33,240 ha) including a 150-mi (242-km) stretch of the Colorado River in Arizona and California. We have excluded the entire unit from the final designation (see Exclusions). A description and map of this unit is maintained in supporting information for this designation (Service 2020b, entire).
Unit 2: CA/AZ-2 Colorado River 2; San Bernardino County, California and Mohave County, Arizona.
Critical habitat unit CA/AZ-2 is 23,589 ac (9,546 ha) in extent. It is a 23-mi (37-km)-long continuous segment of the Colorado River between the Interstate 40 Bridge, including Topock Marsh in San Bernardino County, California, and upstream to the Arizona-Nevada border in Mohave County, Arizona. We have excluded the entire unit from the final critical habitat designation (see Exclusions). A description and map of this unit is maintained in supporting information for this designation (Service 2020b, entire).
Unit 3: AZ-1 Bill Williams; Mohave and La Paz Counties, Arizona.
Critical habitat unit AZ-1 is 3,389 ac (1,371 ha) in extent and is a continuous segment of the Bill Williams River, a tributary to the Colorado River, from the upstream end of Lake Havasu upstream to Castaneda Wash in Mohave and La Paz Counties, Arizona. We have excluded the entire unit from the final critical habitat designation (see Exclusions). A description and map of this unit is maintained in supporting information for this designation (Service 2020b, entire).
Unit 4: AZ-2 Alamo Lake; Mohave and La Paz Counties, Arizona.
Critical habitat unit AZ-2 totals 2,793 ac (1,130 ha) in extent and is a continuous stream made up of a 6-mi (10-km)-long continuous segment of the Santa Maria River and a 3-mi (5-km)-long continuous segment of the Big Sandy River that feeds into the Santa Maria River above Alamo Lake State Park in Mohave and La Paz Counties, Arizona. We have excluded the entire Unit from the final critical habitat designation (see Exclusions). A description of this unit is maintained in supporting information for this designation (Service 2020b, entire).
Unit 5: AZ-3 Hassayampa River; Maricopa County, Arizona.
Critical habitat unit AZ-3 is 908 ac (367 ha) in extent and is an approximately 7-mi (11-km)-long continuous segment of the Hassayampa River in the vicinity of Wickenburg in Maricopa County, Arizona. Approximately 12 ac (5 ha) is in Federal ownership, and 896 ac (363 ha) is in other ownership. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest at this site annually during the breeding season (Corman and Magill 2000, pp. 42-43; Kondrat-Smith 2015-2016, entire; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos.
Much of the private land in this revised proposed unit is within The Nature Conservancy's (TNC) and Maricopa County Parks and Recreation Department's Hassayampa River Preserve, which is occupied by yellow-billed cuckoos during the breeding season. Preserve management requires management of cottonwood and willow habitat to control nonnative species and maintenance of fencing to prevent trespass livestock from damaging habitat (Maricopa County Parks and Recreation Department 2018, pp. 8, 10). Western yellow-billed cuckoos occupy and nest at this site during the breeding season annually Habitat is gallery woodland with cottonwood, willow, and mesquite (Kondrat-Smith 2015, entire). Very little tamarisk is present in much of the site because the river scours out frequently, preventing tamarisk from becoming established.
Unit 6: AZ-4, Agua Fria River; Yavapai County, Arizona.
Critical habitat unit AZ-4 is 3,336 ac (1,350 ha) in extent and is made up of a continuous segment of the Agua Fria River (called Ash Creek above the confluence with Sycamore Creek), which is joined by the Sycamore Creek tributary. Other portions of tributaries that are part of this unit include Silver Creek, Indian Creek, and Little Ash Creek. Together they form a continuous unit located approximately 2.5 mi (4.0 km) east of Cordes Lakes in Yavapai County, Arizona. Approximately 1,802 ac (729 ha) is in Federal ownership; 235 ac (95 ha) is in State ownership; and 1,300 ac (526 ha) is in other ownership. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest at this site annually during the breeding season (Corman and Magill 2000, pp. 37, 40, 47; Prager and Wise 2013, 2014, 2015, 2016, 2017, 2018, 2019, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. BLM management to reduce off-road vehicle and grazing pressure has resulted in gradual improvement to riparian habitat on its Agua Fria National Monument (Prager and Wise 2019, pp. 2-4). Periodic floods on the Agua Fria River scour brushy understory and encourage recruitment of cottonwood and willows. Other species include sycamore, ash, walnut, mesquite, acacia, juniper,
Unit 7: AZ-5, Upper Verde River; Yavapai County, Arizona.
Critical habitat unit AZ-5 is 5,188 ac (2,100 ha) in extent. We have excluded approximately 272 ac (110 ha) of State land associated with the AGFD's Upper Verde River Wildlife Area and 191 ac (77 ha) of Yavapai-Apache tribal land from this unit (see Exclusions). This unit extends from approximately 0.6 mi (0.9 km) east of State Route 89 to I-17 in Yavapai County. Short reaches of Granite Creek, Peck's Lake and Tavasci Marsh, and Sycamore Creek are also included in this unit. Approximately 2,367 ac (958 ha) is in Federal ownership; 546 ac (221 ha) is in State ownership; and 2,275 ac (921 ha) is in other ownership. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest at numerous locations throughout this unit (Holmes
Habitat is primarily cottonwood and willow gallery riparian forest, and may contain other species such as ash, sycamore, mesquite, boxelder, walnut, juniper, alder, desert willow, hackberry, tamarisk, and Russian olive, often with adjacent mesquite woodland (Agyagos 2016, entire, Prescott National Forest 2019, entire). The Upper Verde State Wildlife and Tuzigoot and IBAs lie within this unit (National Audubon Society 2016b, entire; 2020a, entire; Arizona Important Bird Areas (IBA) 2020c, entire).
Unit 8: AZ-6 Oak Creek; Yavapai and Coconino Counties, Arizona.
Critical habitat unit AZ-6 is 2,231 ac (903 ha) and is a continuous segment of Oak Creek from the State Highway 179 Bridge within the City of Sedona in Coconino County, Arizona, downstream to the confluence with the Verde River in Yavapai County, Arizona. Approximately 596 ac (241 ha), is in Federal ownership; 160 ac (65 ha) is in State ownership; and 1,475 ac (597 ha) is in other ownership. This unit is considered to have been occupied at the time of listing and is occupied by western yellow-billed cuckoos during the breeding season (Corman and Magill 2000, p. 42; Holmes
This unit contains the Lower Oak Creek Important Bird Area (IBA), where western yellow-billed cuckoos are identified as a breeding bird (National Audubon Society 2016a, entire). Vegetation is a mix of riparian gallery of cottonwood, willow, sycamore, and mesquite and hackberry woodland (National Audubon Society 2016a, entire). The reach from Cornville to the confluence with the Verde River contains the best broad‐valley floodplain and mesquite bosque habitat on Oak Creek (Agyagos 2016, entire). The Oak Creek confluence with the Verde River consists of an approximately 98-ft (30-m)-wide riparian area, with mesquite habitat adjacent to the riparian vegetation (Johnson and Rakestraw 2016, p. 6). Sycamore and boxelder are the dominant trees at the confluence, with scattered cottonwood and some willow and tamarisk trees.
Unit 9: AZ-7 Beaver Creek; Yavapai County, Arizona.
Critical habitat unit AZ-7 is 2,081 ac (842 ha) in extent and is a 23-mi (37-km)-long continuous segment of Beaver Creek from the confluence with the Verde River near Camp Verde upstream to above the Town of Rimrock in Yavapai County, Arizona. We have excluded approximately 1 ac (<1 ha) of land from this unit (see Exclusions). Approximately 1,335 ac (540 ha) is Federal land; and 746 ac (302 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoo occupy and nest in this unit during the breeding season (Corman and Magill 2000, pp. 11, 37-41; Holmes
Unit 10: AZ-8 Lower Verde River and West Clear Creek; Yavapai County, Arizona.
Unit AZ-8 is 2,134 ac (864 ha) in extent and is a 17-mi (27-km) long continuous segment of the Verde River extending from the I-17 Verde River Bridges downstream to Beasley Flat, Prescott National Forest, and includes 5 mi (8 km) of the West Clear Creek tributary. We have excluded approximately 44 ac (18 ha) of Yavapai-Apache Nation land from this unit (see
A number of NGO organizations, including Friends of Verde River Greenway and The Nature Conservancy, are working on efforts to restore and maintain an appropriate level of base flows in the Verde River to sustain ecological functions (Arizona IBA 2020b, entire). Dominant vegetation is cottonwood and willow with lesser amounts of sycamore, ash, and tamarisk (Prescott National Forest 2019, entire). Mesquite bosque flanks parts of the riparian forest. Altered hydrology has caused the introduction and spread of nonnative tamarisk, resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it may contribute toward habitat suitability in areas where the native tree density can no longer be sustained.
Unit 11: AZ-9A and AZ-9B Horseshoe Dam; Gila, Maricopa, and Yavapai Counties, Arizona.
Critical habitat in these two subunits is 3,449 ac (1,395 ha) (AZ-9A 2,667 ac (1,079 ha)); (AZ-9B 782 ac (316 ha)) in extent and is a continuous segment of the Verde River immediately upstream of Horseshoe Dam and a continuous segment of the Verde River immediately downstream of Horseshoe Dam in Yavapai County, Arizona. We have excluded approximately 387 ac (161 ha) from (AZ-9A 76 ac (31 ha) and AZ-9B 311 ac (130 ha)) of land from the Units AZ-9AB (see Exclusions). All lands are in Federal ownership. The unit is considered to have been occupied at the time of listing, and the western yellow-billed cuckoo breeds at this site annually (Corman and Magill 2000, pp. 37, 41; SRP 2011a, pp. 18, 19; Dockens and Ashbeck 2011a, 2015, entire; AGFD 2018, entire; SRP 2017a, pp. A1-G2; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3, occur within this unit but depend on river flows and flood timing. This unit also provides a movement corridor as well as migratory stop-over habitat for western yellow-billed cuckoos.
This unit includes part of the Salt and Verde Riparian Ecosystem IBA, with western yellow-billed cuckoos identified as a breeding bird (National Audubon Society 2016b, entire). Riparian cottonwood-willow galleries and mixed riparian stands of native and tamarisk habitat exist both above and below Horseshoe Dam, although some of these stands occur as narrow strands along the Verde River (SRP 2008, p. 61). Habitat consists of contiguous to patchy cottonwood, willow, tamarisk, and mesquite (SRP 2011a, p. 18). Altered hydrology has caused the introduction and spread of nonnative tamarisk. Although tamarisk is not as desirable as native habitat, it contributes toward habitat suitability in areas where the native tree density can no longer be sustained.
Unit 12: AZ-10 Tonto Creek; Gila County, Arizona.
Critical habitat unit AZ-10 is 3,181 ac (1,287 ha) in extent and is made up of a continuous segment of Tonto Creek ending at the 2,151-ft (656-m) elevation line, which represents the lakebed at Theodore Roosevelt Lake in Gila County, Arizona. We have excluded approximately 489 ac (198 ha) of land from this unit (see Exclusions). Approximately 2,045 ac (828 ha) is in Federal ownership, and 1,135 ac (459 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in this unit during the breeding season (Corman and Magill 2000, pp. 37, 40, 41, 51; Johnson
Unit 13: AZ-11 Pinal Creek; Gila County, Arizona.
Critical habitat unit AZ-11 is 419 ac (169 ha) and is a 3-mi (5-km)-long continuous segment of Pinal Creek, approximately 4-mi (6-km) upstream of the confluence with the Salt River north of the Town of Globe in Gila County, Arizona. We have excluded the entire unit from the final designation (see Exclusions). A description and map of this unit is maintained in supporting information for this designation (Service 2020b, entire).
Unit 14: AZ-12 Bonita Creek; Graham County, Arizona.
Critical habitat unit AZ-12 is 928 ac (375 ha) in extent and is an 11-mi (17-km)-long continuous segment of Bonita Creek, a tributary of the Gila River, and an 8-mi (13-km)-long continuous segment of the Gila River extending upstream and downstream of the confluence with Bonita Creek, located northeast of the Town of Safford in Graham County, Arizona. Approximately 828 ac (335 ha) is in Federal ownership, and 101 ac (41 ha) is in other ownership. The BLM's Gila
Unit 15: AZ-13 San Francisco River; Greenlee County, Arizona.
Critical habitat unit AZ-13 is 1,327 ac (537 ha) in extent and is a 4-mi (6-km)-long continuous segment of the San Francisco River that includes a continuous segment of a tributary called Dix Creek located approximately 6 mi (9.6 km) west of the border with New Mexico in Greenlee County, Arizona. Approximately 1,192 ac (482 ha) is in Federal ownership, and 135 ac (55 ha) is in other ownership. The unit is considered to have been occupied at the time of listing, and is used by the western yellow-billed cuckoo during the breeding season (AGFD 2018, entire; Corman and Magill 2000, pp. 38-39, 44; Cornell Lab of Ornithology 2020, (eBird data)); Reclamation 2020b, p. 6.2.2). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a movement corridor between larger habitat patches. This unit is part of the Blue and San Francisco Rivers IBA. Riparian habitat is dominated by cottonwood, willow, alder, and sycamore. Mesquite, walnut, oak, and juniper may also be present (Corman and Magill 2000, pp. 15-16; National Audubon Society 2020c; entire).
Unit 16: AZ-14 Upper San Pedro River; Cochise County, Arizona.
Critical habitat Unit AZ-14 is 31,059 ac (12,569 ha) in extent and is an 84-mi (135-km)-long segment of the Upper San Pedro River from the border with Mexico north to nearly the community of Redington in Cochise County, Arizona. We have excluded the 60-ft (18-m) Roosevelt Reservation from this unit (see Exclusions). Approximately 17,957 ac (7,267 ha) is in Federal ownership; 1,903 ac (770 ha) is in State ownership; and 11,199 ac (4,532 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. The upper San Pedro River is known as supporting one of the largest nesting populations of western yellow-billed cuckoo s along a free-flowing river during the breeding season. This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. This unit also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos.
This unit not only includes gallery riparian habitat dominated by cottonwood and willow, but also a large adjacent mesquite bosque, where western yellow-billed cuckoos also nest and forage (Corman and Magill 2000, pp. 11, 39-40, 44, 50; Cascabel Conservation Association 2014, entire; EEC 2002, pp. ES-1, 6, 10, 11; Halterman 2002, pp. 10, 22; Halterman 2003, pp. 9, 23; Halterman 2004, pp. 9, 33-34; Halterman 2005, pp. 8, 22-23; Halterman 2006, pp. 26-27, 31; Halterman 2007, pp. 5, 11; Halterman 2009, p. 23; Swanson 2014, entire; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c, entire). Western yellow-billed cuckoos have been found nesting in mesquite bosque as far away as 0.3 mi (0.5 km) from the adjacent upper San Pedro River (Halterman 2006, p. 31). Other species include walnut, soapberry, ash, Mexican elder, acacia, and mimosa (EEC 2002, p. 14).
Much of this mesquite habitat is composed of large mature trees. Western yellow-billed cuckoos were documented during 2014 surveys on the Babocomari River portion of this unit in habitat that is not as dense as on the San Pedro River, including narrow habitat with low stature and scattered riparian and mesquite trees (Swanson 2014, entire). Altered hydrology has caused the introduction and spread of nonnative tamarisk resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it contributes toward habitat suitability in areas where the native tree density can no longer be sustained.
Most of this unit lies within the San Pedro Riparian National Conservation Area and the San Pedro Riparian National Conservation Area IBA (National Audubon Society 2016c, entire). The IBA supports 100 species of breeding birds, and 250 species of migrant and wintering birds (National Audubon Society 2016c, entire). The 40 mi (64 km) of the upper San Pedro River was designated by Congress as a Riparian National Conservation Area in 1988. The primary purpose for the special designation is to protect and enhance the desert riparian ecosystem, a rare remnant of what was once an extensive network of similar riparian systems throughout the American Southwest. Part of this unit is within the Lower San Pedro River IBA (National Audubon Society 2016h, entire). The conservation property, Three Links Farm consisting of 2,156 ac (873 ha), was purchased by TNC to protect the San Pedro River and its riparian habitat. Reclamation holds a conservation easement on part of the property. Western yellow-billed cuckoos nest in the cottonwood and willow dominated gallery forest and mesquite bosque. The Cascabel Conservation Association (2014, entire), a non-profit corporation of local landowners near the community of Cascabel dedicated to the collaborative stewardship of the Middle San Pedro River watershed, provided western yellow-billed cuckoo data collected during the breeding season in support of designation of critical habitat. The Friends of the San Pedro River, a non-profit organization dedicated to the conservation and restoration of the river through advocacy, education, and interpretation supports designation of critical habitat.
Unit 17: AZ-15 Lower San Pedro and Gila Rivers; Pima, Pinal and Gila Counties, Arizona.
Critical habitat unit AZ-15 is 22,397 ac (9,064 ha) in extent and is a 119-mi (192-km)-long segment of the Lower San Pedro River from just north of the community of Redington in Pima County downstream for approximately 49 mi (78 km) to its confluence with the Gila River. The Gila River segment continues downstream for approximately 39 mi (63 km) to the area of the Ashurst-Hayden Dam. A segment of the unit continues upstream to Porphyry Gulch in Pinal County, Arizona. In the revised proposed rule, we identified approximately 729 ac (295 ha) of San Carlos Apache parcel land in this unit for exclusion. After publication, we identified an additional 185 ac (75 ha) along the Lower San Pedro River between Aravaipa Creek and the Gila River confluence, totaling approximately 914 ac (370 ha) of San Carlos Apache lands. However, due to revisions of the area considered as critical habitat between the revised proposed rule and this final designation, the area upstream of Prophyry Gulch on the Gila River was removed. As a result, the total area of Tribal lands we are excluding in Unit 17 is approximately 445 ac (184 ha). (see Exclusions,
The entire lower San Pedro reach is included in the Lower San Pedro River IBA (National Audubon Society 2016h, entire) and consists of cottonwood and Goodding's willow gallery forest riparian habitat is interspersed with old growth honey mesquite (
Unit 18: AZ-16 Sonoita Creek; Santa Cruz County, Arizona.
Critical habitat Unit AZ-16 is 2,488 ac (1,007 ha) in extent and is a 16-mi (26-km)-long segment of Sonoita Creek from the Town of Patagonia downstream to a point on the creek approximately 4 mi (6 km) east of the Town of Rio Rico in Santa Cruz County, Arizona. Approximately 926 ac (375 ha) is in State ownership, and 1,563 ac (633 ha) is in other ownership. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos nest throughout this unit during the breeding season (Corman and Magill 2000, pp. 38-40, 45, 51; Kingsley and Gaiennie 2005, entire; Tucson Audubon Society 2012, entire; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. This site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos.
The perennial flow in Sonoita Creek supports a diverse gallery cottonwood and Goodding's willow forest that includes walnut, mesquite, ash, hackberry, and various willow species in this rare southeastern Arizona ecosystem (National Audubon Society 2016d, entire). This unit includes Patagonia State Park, Sonoita Creek State Natural Area, Patagonia-Sonoita Creek TNC Preserve, and the Tucson Audubon Society's Paton Center for Hummingbirds. The Patagonia-Sonoita Creek TNC Preserve IBA lies within this unit, under conservation stewardship by state parks, TNC, and Tucson Audubon Society (National Audubon Society 2016d, entire).
Unit 19: AZ-17, Upper Cienega Creek; Pima County, Arizona.
Critical habitat Unit AZ-17 is 5,204 ac (2,106 ha) in extent and is an 11-mi (18-km)-long segment of Cienega Creek. Approximately 4,630 ac (1,874 ha) is in Federal ownership, and 574 ac (232 ha) is in State ownership. This unit is considered to have been occupied at the time of listing, and is used by the western yellow-billed cuckoo during the breeding season (Corman and Magill 2000, pp. 38-39, 40, 44, 48; BLM 2010, 2003, entire; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the
Unit 20: AZ-18 Santa Cruz River; Santa Cruz County, Arizona.
Critical habitat Unit AZ-18 is 9,538 ac (3,860 ha) in extent and is a 27-mi (43-km)-long segment of the Santa Cruz River from the U.S./Mexico border north to the vicinity of the Town of Tubac in Santa Cruz County, Arizona. We have excluded the 60-ft (18-m) Roosevelt Reservation from this unit (see Exclusions). Approximately 505 ac (204 ha) is in Federal ownership; 4 ac (2 ha) is in State ownership; and 9,029 ac (3,654 ha) is in other ownership. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in numerous locations along the Santa Cruz River and tributaries during the breeding season, including a concentration of nesting yellow-billed cuckoos within the Tumacacori area (Corman and Magill 2000, pp. 14, 39, 40, 50; Powell 2000, entire; Krebbs and Moss 2009, entire; Baril et al. 2019, p. 85; National Audubon Society 2016e, entire; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. Some portions of the unit are considered disturbed and may not contain all the physical or biological features essential to the conservation of the species, but due to our mapping constraints, some of these areas were left within the boundaries of the unit. These disturbed areas not containing the physical or biological features would not be considered critical habitat. The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos.
This unit is within the Upper Santa Cruz IBA, with western yellow-billed cuckoos identified as a breeding species (National Audubon Society 2016e, entire). The Upper Santa Cruz River IBA is a linear riparian corridor from Tumacacori National Historical Park downstream (northward) through the Tucson Audubon Society-held conservation easement (National Audubon Society 2016e, entire). This reach of river has the highest groundwater levels and perennial river flow, primarily treated wastewater, but with some groundwater seep augmentation. The IBA boundaries are defined by the cottonwood and willow riparian vegetation, including the mesquite bosques that border the broadleaf gallery forest and elderberry thickets (Powell 2000, p. 5). The IBA also includes all the National Historical Park and Tucson Audubon Society-held conservation easement lands.
Unit 21: AZ-19 Black Draw; Cochise County, Arizona.
Critical habitat Unit AZ-27 is 1,595 ac (646 ha) in extent. Approximately 891 ac (360 ha) is in Federal ownership; 134 ac (54 ha) is in State ownership; and 570 ac (231 ha) is in other ownership. We have excluded the 60-ft (18-m) Roosevelt Reservation from this unit (see Exclusions). This unit is considered to have been occupied at the time of listing and is used by the western yellow-billed cuckoo during the breeding season (Corman and Magill 2000, pp. 39, 50; Radke 2014, pp. 57-58, 112; Cajero 2016, entire; Radke 2017, pp. 41-42; AGFD 2018, entire; Cajero 2018, entire; Radke 2019, pp. 26, 84, 88; Radke 2020, pp. 40-41; Service 2020c, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos. Habitat is primarily cottonwood, Goodding's willow, and some mesquite (Cajero 2016, entire).
Unit 22: AZ-20, Gila River 1; Graham County, Arizona.
Critical habitat Unit AZ-20 is 10,540 ac (4,266 ha) in extent and is a 76-mi (123-km) long continuous segment of the Gila River in Graham County, Arizona. This segment extends along the Gila River from east of Safford downstream to the confluence with the San Carlos Reservoir. We have excluded approximately 10,184 ac (4,121 ha) of land from this unit (see Exclusions). Several mitigation conservation properties along the Gila River that support nesting western yellow-billed cuckoos were not considered for exclusion. Approximately 778 ac (315 ha) is in Federal ownership; 215 ac (87 ha) is in State ownership; and 9,547 ac (3,863 ha) is in other ownership. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos nest in this unit during the breeding season (Corman and Magill 2000, p. 39; Dockens and Ashbeck 2014, pp. 6-7; SRP 2015; p. 28; Johnson 2016, entire; AGFD 2018, entire; SRP 2019a, pp. 33-62; Service 2020c, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. Part of this unit is within the BLM's Gila Box Riparian National Conservation Area, established by Congress to conserve, protect, and enhance the riparian values of the area, Mitigation conservation properties along the Gila River that support nesting western yellow-billed cuckoos were not considered for exclusion at the request of the landowners. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. Altered hydrology has caused the introduction and spread of nonnative tamarisk resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it may contribute toward habitat suitability in areas where the native tree density can no longer be sustained. The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos.
Suitable habitat varies from multi-storied cottonwood and Goodding's willow dominated habitat with large patches of coyote willow along the stream edges to mixed tamarisk/native habitat with fewer cottonwood and willows (SRP 2019a, p. 62). Western yellow-billed cuckoo presence and density varies, depending on habitat
Unit 23: AZ-21 Salt River; Gila County, Arizona.
Critical habitat unit AZ-21 is 581 ac (235 ha) in extent and is a 5-mi (8-km)-long continuous segment of the Salt River ending at the 2,151-ft (656-m) elevation line, which represents the lakebed at Theodore Roosevelt Lake in Gila County, Arizona. We have excluded approximately 2,009 ac (813 ha) of land from this unit (see Exclusions). Approximately 502 ac (203 ha) of this unit is Federal ownership, and 79 ac (32 ha) is in other ownership. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in this unit during the breeding season (Corman and Magill 2000, p. 38, 50; Johnson
Unit 24: AZ-22 Lower Cienega Creek, Pima County, Arizona.
Critical habitat unit AZ-22 is 2,360 ac (955 ha) in extent and is an 11-mi (18-km)-long continuous segment of Cienega Creek about 15 mi (24 km) southeast of Tucson in Pima County, Arizona. Approximately 759 ac (307 ha) are State lands and 1,601 ac (648 ha) is in other ownership. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in Pima County's Cienega Creek Natural Preserve regularly during the breeding season (Corman and Magill 2000, p. 48; Powell 2013, entire; Murray and Gicklhorn 2018, pp. 11-13; AGFD 2018, entire; National Audubon Society 2013a, entire; Cornell Lab of Ornithology 2020 (eBird data)). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a movement corridor between larger habitat patches. Habitat consists of cottonwood, Goodding's willow, ash, hackberry, and mesquite in reaches of perennial water. Tamarisk is widely scattered and relatively rare (Powell 2013, p. 12). Altered hydrology has caused the introduction and spread of nonnative tamarisk resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it may contribute toward habitat suitability in areas where the native tree density can no longer be sustained.
Unit 25: AZ-23 Blue River, Greenlee County, Arizona.
Critical habitat unit AZ-23 is 1,025 ac (415 ha) in extent and is an 8-mi (13-km)-long continuous segment of the Blue River in Greenlee County, Arizona. The entire unit is in Federal ownership located on the Apache Sitgreaves National Forest managed by the USFS. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy this site (AGFD 2018, entire; Corman and Magill 2000, pp. 14, 38-39, 44; Reclamation 2020b, p. 6.1.2). This unit is part of the Blue and San Francisco Rivers IBA (National Audubon Society 2020c, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. Riparian habitat is dominated by cottonwood, willow, alder, and sycamore. Walnut, mesquite, oak and juniper may also be present.
Unit 26: AZ-24 Pinto Creek South, Gila and Pinal Counties, Arizona.
Critical habitat unit AZ-24 is 373 ac (151 ha) in extent and is a 4-mi (6-km)-long continuous segment of Pinto Creek in Gila and Pinal Counties, Arizona. Approximately 368 ac (149 ha) is in Federal ownership, and 5 ac (2 ha) is in other ownership. This unit is considered to have been occupied at the time of listing (Corman and Magill 2000, pp. 38, 42, AGFD 2018, entire; WestLand Resources, Inc. 2019, entire; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. Altered hydrology has caused the introduction and spread of nonnative tamarisk resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it may contribute toward habitat suitability in areas where the native tree density can no longer be sustained. Habitat is mostly native broadleaf plants, with an overstory of cottonwood, Goodding's willow, and sycamore and an understory of ash and cottonwood (WestLand Resources, Inc. 2019, entire).
Unit 27: AZ-25 Aravaipa Creek; Pinal and Graham Counties, Arizona.
Critical habitat Unit AZ-25 is 2,937 ac (1,189 ha) in extent and is a 28-mi (46-km)-long continuous segment of Aravaipa Creek extending from the confluence of Aravaipa Creek and the San Pedro River in Pinal and Graham Counties, Arizona. In addition, this unit includes approximately 3-mi (4-km) of the Turkey Creek tributary on the eastern end of the Unit. We have excluded approximately 392 ac (159 ha) of San Carlos Apache tribal land from this unit (see Exclusions). Approximately 622 ac (252 ha) is in Federal ownership; 116 ac (47 ha) is in State ownership; and 2,199 ac (890 ha) is in other ownership. This unit includes BLM's Aravaipa Canyon Wilderness Area and TNC's Aravaipa Canyon Preserve. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in this unit during the breeding season within this unit (Corman and Magill 2000, pp. 41-43; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data)). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. Habitat is
Patches and stringers of cottonwood-willow riparian forest and adjacent mesquite bosque exist throughout Aravaipa Canyon. This drainage experiences scouring flood flows that can result in shifting suitable habitat within the floodplain. Including the entire Aravaipa Canyon ensures that if suitable habitat shifts, it will remain within critical habitat. Connecting this unit to the San Pedro River units (AZ-14 and AZ-15) by including the confluence with the San Pedro River strengthens the conservation value of both units by linking breeding, migration, and dispersal corridors. Altered hydrology caused the introduction and spread of nonnative tamarisk resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it contributes toward habitat suitability in areas where the native tree density can no longer be sustained.
Unit 28: AZ-26, Gila River 2; Graham and Greenlee Counties, Arizona.
Critical habitat Unit AZ-26 is 5,836 ac (2,362 ha) in extent and is a continuous segment of the Gila River and continuous segment of Eagle Creek in Graham and Greenlee Counties, Arizona. Eagle Creek, a tributary to the Gila River, straddles the eastern boundary of San Carlos Apache Reservation and meanders in and out of private, State, tribal, and Federal lands. Also included in this unit is a small portion of the San Francisco River at the confluence with the Gila River in Graham and Greenlee Counties, Arizona. We have excluded approximately 2,753 ac (1,114 ha) of land from this unit (see Exclusions). Approximately 1,895 ac (767 ha) is in Federal ownership; 204 ac (83 ha) is in State ownership; and 3,736 ac (1,512 ha) is in other ownership. Part of this unit is within the BLM's Gila Box Riparian National Conservation Area, established by Congress to conserve, protect, and enhance the riparian values of the area. This unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in this unit in several locations on the Gila River and Eagle Creek during the breeding season (WestLand Resources, Inc. 2015e, entire; Andreson 2016a, entire; Johnson 2016, entire; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos.
Riparian habitat in overstory and understory along one survey reach in Eagle Creek is primarily cottonwood and sycamore (Westland Resources, Inc. 2019, entire). Lower Eagle Creek includes cottonwood, willow, ash, and mesquite bosque habitat where western yellow-billed cuckoos have been documented during the breeding season. Although narrow and patchy in some reaches of the eastern part of this unit on the Gila River, habitat is primarily cottonwood and willow, with less tamarisk than farther downstream (Johnson 2016, entire). Altered hydrology has caused the introduction and spread of nonnative tamarisk resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it may contribute toward habitat suitability in areas where the native tree density can no longer be sustained.
Unit 29: AZ-27 Pinto Creek North; Gila County, Arizona.
Critical habitat unit AZ-27 is 427 ac (173 ha) in extent and is a 6-mi (10-km)-long continuous segment of Pinto Creek, located approximately 7 mi (11 km) upstream of Roosevelt Lake in Gila County, Arizona. Approximately 415 ac (168 ha) is in Federal ownership, and 12 ac (5 ha) is in other ownership. This unit is considered to have been occupied at the time of listing and is used by the western yellow-billed cuckoo during the breeding season AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data); Service 2020, entire). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides migration stop-over habitat. Altered hydrology has caused the introduction and spread of nonnative tamarisk resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it may contribute toward habitat suitability in areas where the native tree density can no longer be sustained. Habitat has declined in recent years due to drought and water withdrawal. Habitat consists of Goodding's willow, cottonwood, ash, alder, sycamore, hackberry and some tamarisk. Large mesquite trees are adjacent to the riparian habitat (Service 2020c, entire).
Unit 30: AZ-28 Mineral Creek; Pinal and Gila Counties, Arizona.
Critical habitat Unit AZ-28 is 380 ac (154 ha) in extent and is a 7-mi (11-km)-long continuous segment of Mineral Creek in Pinal and Gila Counties, Arizona. Approximately 1 ac (<1 ha) is in Federal ownership; 198 ac (80 ha) is in State ownership; and 180 ac (73 ha) is in other ownership. This unit is considered to have been occupied at the time of listing and is used by the western yellow-billed cuckoo during the breeding season (WestLand Resources, Inc. 2019, entire). The southern end of Mineral Creek, which is not included in the proposal, empties into a reservoir owned by American Smelting And Refining Company (ASARCO). This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos. Mineral Creek provides suitable habitat for western yellow-billed cuckoos along most of the surveyed reach, consisting mostly of ash, with willow, cottonwood, and sycamore (Westland Resources, Inc. 2019, entire).
Unit 31: AZ-29 Big Sandy River; Mohave County, Arizona.
Critical habitat within Unit AZ-29 totals approximately 4,236 ac (1,714 ha) in extent. We have excluded approximately 500 ac (202 ha) of land from this unit (see Exclusions (Alamo
The Big Sandy River has flows that are spatially and temporally intermittent. However, in the vicinity of US 93, the river is perennial and supports a dense riparian woodland of tamarisk, cottonwood, and Goodding's willow, bordered and interspersed with mesquite (Magill
Unit 32: NM-1 San Francisco River; Catron County, New Mexico.
Critical habitat unit NM-1 is 2,039 ac (825 ha) in extent and is a 10-mi (16-km)-long continuous segment of the San Francisco River near the Town of Glenwood in Catron County, New Mexico. This segment includes 1.2 mi (2 km) portion of Whitewater Creek from the confluence of the San Francisco River near the Town of Glenwood. Approximately 738 ac (299 ha) is in Federal ownership; 10 ac (4 ha) is in State ownership; and 1,291 ac (522 ha) is in other ownership. This unit is considered to have been occupied at the time of listing and is used by the western yellow-billed cuckoo during the breeding season. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides migratory stop-over habitat for western yellow-billed cuckoos moving farther north. Tamarisk is a component of habitat in this unit and may provide understory or nesting habitat for the western yellow-billed cuckoo. This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. Altered hydrology has caused the introduction and spread of nonnative tamarisk resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it may contribute toward habitat suitability in areas where the native tree density can no longer be sustained.
Unit 33: NM-2 Gila River; Grant County, New Mexico.
Critical habitat unit NM-2 is 3,036 ac (1,228 ha) in extent and is a 24-mi (37-km)-long continuous segment of the Gila River from 10 mi (16 km) downstream from the town of Cliff to 10 mi (16 km) upstream of the town of Gila in Grant County, New Mexico. We have excluded approximately 1,142 ac (381 ha) of land from this unit (see Exclusions). Approximately 974 ac (394 ha) is in Federal ownership; 194 ac (78 ha) is in State ownership; and 1,867 ac (756 ha) is in other ownership. This unit is considered to have been occupied at the time of listing and is consistently used by a large number of western yellow-billed cuckoos during the breeding season and is an important breeding location for the species. This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides migratory stop-over habitat for western yellow-billed cuckoos moving farther north. Altered hydrology has caused the introduction and spread of nonnative tamarisk resulting in reduced quality of riparian habitat. Although tamarisk is not as desirable as native habitat, it may contribute toward habitat suitability in areas where the native tree density can no longer be sustained. Tamarisk is a component of habitat in this unit and may provide understory or nesting habitat for the western yellow-billed cuckoo.
Unit 34: NM-3A and NM-3B Mimbres River; Grant County, New Mexico.
Critical habitat Unit NM-3 is 544 ac (220 ha) in extent (NM-3A 260 ac (105 ha); NM-3B 284 ac (115 ha)). The unit is made up of two segments totaling approximately 7.4 mi (11.9 km) of the Mimbres River north of the town of Mimbres in Grant County, New Mexico. The entire proposed Unit NM-3 is privately owned. This unit is considered to have been occupied at the time of listing and id used by western yellow-billed cuckoo during the breeding season. This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The two areas provide the habitat components in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. Habitat is composed of mainly cottonwood, Goodding's willow and boxelder.
Unit 35: NM-4 Upper Rio Grande 1; Rio Arriba County, New Mexico.
Critical habitat unit NM-4 is 518 ac (210 ha) in extent and is a 10-mi (16-km)-long continuous segment of the upper Rio Grande from Ohkay Owingeh to near Alcalde in Rio Arriba County, New Mexico. We have excluded approximately 1,312 ac (513 ha) of land from this unit (see Exclusions). The entire area is in private ownership. This unit is considered to have been occupied at the time of listing and is used by the western yellow-billed
Unit 36: NM-5 Upper Rio Grande 2; Santa Fe and Rio Arriba Counties, New Mexico.
Critical habitat unit NM-5 was proposed as 1,173 ac (475 ha) in extent and comprised of a 6-mi (10-km)-long continuous segment of the Upper Rio Grande starting from the Highway 502 Bridge at the south end of the San Ildefonso Pueblo upstream to a point on the river in Rio Arriba County, New Mexico. We have excluded the entire unit from the final designation (see Exclusions). A description and map of this unit is maintained in supporting information for this designation (Service 2020b, entire).
Unit 37: NM-6A and NM-6B Middle Rio Grande; Sierra, Socorro, Valencia, Bernalillo, and Sandoval Counties, New Mexico.
Critical habitat Unit NM-6 is made up of two areas: NM-6A and NM-6B. NM-6A has been entirely excluded from the final designation (see Exclusions). A description and map of Unit NM-6A is maintained in supporting information for this designation (Service 2020b, entire). NM-6B contains 46,595 ac (18,856 ha) along the Rio Grande upstream of Elephant Butte Reservoir in Socorro and Valencia Counties, New Mexico. Within Unit 37 NM-6B approximately 8,651 ac (3,501 ha) is in Federal ownership; 13,064 ac (5,287 ha) is in State ownership; and 24,879 ac (10,068 ha) is in other ownership. This unit is considered to have been occupied at the time of listing and is consistently occupied by the largest number of western yellow-billed cuckoos during the breeding season north of Mexico. This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a movement corridor for western yellow-billed cuckoos. Altered hydrology has resulted in the establishment of tamarisk. Tamarisk is being used by western yellow-billed cuckoos during the breeding season in this unit and may provide important understory habitat (Sechrist
Unit 38: NM-7, Upper Gila River; Hidalgo and Grant Counties, New Mexico.
Critical habitat Unit NM-7 is 4,727 ac (1,913 ha) in size and extends in a 30-mi (48-km)-long continuous segment of the Gila River from the Arizona-New Mexico border 5 mi (8 km) downstream from Virden in Hidalgo County upstream to 8 mi (13 km) upstream from Red Rock in Grant County, New Mexico. Approximately 1,086 ac (439 ha) is in Federal ownership; 188 ac (76 ha) is in State ownership; and 3,453 ac (1,397 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. This site is consistently occupied by numerous pairs of western yellow-billed cuckoos during the breeding season. This unit is part of the core area as identified in our conservation strategy for designating critical habitat for the western yellow-billed cuckoo. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The unit also provides connecting habitat between the Upper and Lower Gila River and a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos. Tamarisk is a component of habitat in this unit and may provide understory or nesting habitat for the western yellow-billed cuckoo.
Unit 39: NM-8A Caballo Delta North and NM-8B Caballo Delta South; Sierra County, New Mexico.
Critical habitat unit NM-8 is made up of two areas (NM-8A 190 ac (77 ha) and NM-8B 155 ac (63 ha)) within the delta area of Caballo Reservoir east of the town of Caballo, within Sierra County, New Mexico. We have excluded the entire Unit 39 (NM-8A and NM-8B) from the final designation (see Exclusions). A description and map of this unit is maintained in supporting information for this designation (Service 2020b, entire).
Unit 40: NM-9 Animas; Sierra County, New Mexico.
Critical habitat unit NM-9 is 608 ac (246 ha) in extent and is located on a 6-mi (10-km)-long continuous segment of Las Animas Creek west of the town of Caballo, within Sierra County, New Mexico. We have excluded the entire unit from the final designation (see Exclusions). A description and map of this unit is maintained in supporting information for this designation (Service 2020b, entire).
Unit 41: NM-10 Selden Canyon and Radium Springs; Doña Ana County, New Mexico.
Critical habitat unit NM-10 is 237 ac (96 ha) in extent and is a 12.5-mi (20-km)-long continuous segment of river in Doña Ana County, New Mexico. It is located on a continuous segment of habitat northwest of the town of Radium Springs, within Doña Ana County, New Mexico. We have excluded the entire unit from the final designation (see Exclusions). A description and map of this unit is maintained in supporting information for this designation (Service 2020b, entire).
Unit 42: AZ-30 Arivaca Wash and San Luis Wash; Pima County, Arizona.
Critical habitat unit AZ-30 is 5,765 ac (2,333 ha) in extent and is made up of two washes that join to form a 17-mi (27-km)-long continuous segment that comprises 9 mi (15 km) of Arivaca Wash and 8 mi (13 km) of San Luis Wash. The unit is located about 10 mi (16 km) north of the border of Mexico near the Town of Arivaca in Pima County, Arizona. Approximately 4,662 ac (1,887 ha) is in Federal ownership; 89 ac (36 ha) is in State ownership; and 1,014 ac (410 ha) is in other ownership. Most of this unit is located on the Buenos Aries National Wildlife Refuge. The unit is considered to have been occupied at the time of listing. This unit is consistently occupied by numerous nesting western yellow-billed cuckoos during the breeding season (Corman and Magill 2000, pp. 39, 42-43, 47; Griffin 2015, entire; AGFD 2018, entire; Cornell Lab of Ornithology (2020, entire). This unit is part of the area within the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo, which is outside mainstem rivers and their tributaries as identified in our conservation strategy.
Unit 43: AZ-31 Florida Wash; Pima and Santa Cruz Counties, Arizona.
Critical habitat Unit AZ-31 is 747 ac (302 ha) in extent and is a 6-mi (10-km)-long continuous segment of Florida Wash and tributaries in Pima and Santa Cruz Counties, Arizona. Approximately 449 ac (182 ha) is in Federal ownership; 255 ac (103 ha) is in State ownership; and 43 ac (17 ha) is in other ownership. This unit is considered to have been occupied at the time of listing and occupy and nest in this unit during the breeding season (MacFarland and Horst 2015, pp. 101-102, 185-186; MacFarland and Horst 2017, pp. 57-58; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data)); Drost
This unit is within the Santa Rita Mountains IBA (National Audubon Society 2016f, entire), one of the sky islands of southeastern Arizona with transitional elevational gradients of forest, oak woodland, grassland, and riparian habitat. Vegetation in occupied habitat is primarily oak, hackberry, and mesquite, with some acacia, sycamore, ocotillo (
Unit 44: AZ-32 California Gulch; Santa Cruz County, Arizona.
Critical habitat Unit AZ-32 is 558 ac (226 ha) in extent and is a 7-mi (11-km)-long continuous segment along California Gulch in Santa Cruz County, Arizona. Approximately 376 ac (152 ha) is in Federal ownership, and 181 ac (73 ha) is in other ownership. We have excluded the 60-ft (18-m) Roosevelt Reservation from this unit (see Exclusions). The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in this drainage regularly during the breeding season (Sferra
Unit 45: AZ-33 Sycamore Canyon; Santa Cruz County, Arizona.
Critical habitat Unit AZ-33 is 601 ac (243 ha) in extent and is an 8-mi (11-km)-long continuous segment along Sycamore Canyon in Santa Cruz County, Arizona. The entire unit is in Federal ownership. We have excluded the 60-ft (18-m) Roosevelt Reservation from this unit (see Exclusions). The unit is considered to have been occupied at the time of listing and western yellow-billed cuckoos occupy and nest in this unit during the breeding season (Corman and Magill 2000, p. 51; MacFarland and Horst 2015, pp. 5, 25-26; AGFD 2018, entire; Sferra
The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occurs within this unit (monsoonal events). Occupied habitat includes riparian and Madrean evergreen woodland vegetation including oak, mesquite, ash, and juniper (MacFarland and Horst 2015, p. 124). This unit is contained within the Atascosa Mountains IBA, with western yellow-billed cuckoos identified as one of the breeding birds (Arizona IBA 2020a, entire).
Unit 46: AZ-34 Madera Canyon; Pima and Santa Cruz Counties, Arizona.
Critical habitat Unit AZ-34 is 1,732 ac (701 ha) in extent and is a 7-mi (11-km)-long continuous segment of Madera Canyon in Pima and Santa Cruz Counties, Arizona. Approximately 1,419 ac (574 ha) is in Federal ownership, and 313 ac (127 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in this unit during the breeding season (MacFarland and Horst 2015, pp. 99-100; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data); Drost
Unit 47: AZ-35 Montosa Canyon; Santa Cruz County, Arizona.
Critical habitat Unit AZ-35 is 499 ac (202 ha) in extent and is a 4-mi (6-km)-long continuous segment of Montosa Canyon in Santa Cruz County, Arizona. Approximately 496 ac (201 ha) is in Federal ownership, and 3 ac (1 ha) is in other ownership. The unit is considered to have been occupied at the time of listing and western yellow-billed cuckoos occupy and nest in this unit during the breeding season (MacFarland and Horst 2015, pp. 103-104; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c, entire). This unit is part of the area within the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo, which is outside mainstem rivers and their tributaries as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occurs within this unit (monsoonal events). The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos. This drainage includes riparian, desert scrub, and Madrean evergreen woodland vegetation. This canyon contains dense vegetation along the creek that flows through the bottom of the canyon, and the sloping vegetated canyon walls provide additional foraging opportunities (MacFarland and Horst 2015, p. 103). This unit is within the Santa Rita Mountains IBA (National Audubon Society 2016f, entire), one of the sky islands in southeastern Arizona. Occupied overstory habitat consists of oak, mesquite, hackberry, sycamore (MacFarland and Horst 2015, p. 124).
Unit 48: AZ-36 Patagonia Mountains, Santa Cruz County, Arizona.
Critical habitat Unit AZ-36 is 1,912 ac (774 ha) in extent and is an 11-mi (17-km)-long segment made up of several drainages in the Patagonia Mountains in Santa Cruz County, Arizona. Approximately 1,059 ac (429 ha) is in Federal ownership; 8 ac (3 ha) is in State ownership; and 845 ac (342 ha) is in other ownership. Western yellow-billed cuckoos occupy and nest in the drainages within this unit along 2.2 mi (3.5 km) of Harshaw Creek, along 2.1 mi (3.3 km) of Corral Canyon, and along 1.4 mi (2.2 km) of Hermosa Canyon (AGFD 2018, entire; WestLand Resources, Inc. 2019, entire; Cornell Lab of Ornithology 2020 (eBird data); Drost
The Patagonia Mountains IBA is within one of southern Arizona's sky islands and is composed of Madrean evergreen woodland habitat dominated by oak-juniper, oak-pine, and pine oak communities surrounded by grasslands and desert (National Audubon Society 2016g, entire). The many canyons and drainages that cut through these mountains support riparian and xeroriparian vegetation. The extent of the oak-juniper community type habitat, with sycamores in drainages, is continuous throughout this range. Occupied habitat includes varying amounts of sycamore, cottonwood, mesquite, oak, juniper, pine, walnut, desert willow, walnut, mimosa, and skunkbush (
Unit 49: AZ-37 Canelo Hills, Santa Cruz County
Critical habitat Unit AZ-37 is 2,822 ac (1,142 ha) in extent and is an 11.5-mi (18.5-km)-long drainage within Santa Cruz County, Arizona. Approximately 1,381 ac (559 ha) is in Federal ownership; 1 ac (< 1 ha) is in State ownership; and 1,440 ac (583 ha) is in other ownership. Occupied habitat includes O'Donnell and Turkey creeks and Canelo Hills Cienega. This unit is considered to be occupied at the time of listing and western yellow-billed cuckoos occupy and nest in the trees bordering creeks and cienega wetlands during the breeding season (Corman and Magill 2000, p. 43; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data); Drost
Unit 50: AZ-38 Arivaca Lake, Pima and Santa Cruz Counties, Arizona.
Critical habitat Unit AZ-38 is 1,365 ac (553 ha) in extent and is a 9-mi (14-km)-long continuous segment of stream near Arivaca Lake in Pima and Santa Cruz Counties, Arizona. Approximately 567 ac (229 ha) is in Federal ownership; 417 ac (169 ha) is in State ownership; and 381 ac (154 ha) is in other ownership. The unit is considered to have been occupied at the time of listing and western yellow-billed cuckoos occupy this site regularly during the breeding season (Corman and Magill 2000, pp. 42-43; MacFarland and Horst 2015, pp. 17-18; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data); Drost
Unit 51: AZ-39 Peppersauce Canyon, Pinal County, Arizona.
Critical habitat Unit AZ-39 is 349 ac (141 ha) in extent and is a 4-mi (6-km)-long continuous segment of stream within Peppersauce Canyon in Pinal County, Arizona. Approximately 317 ac (128 ha) is in Federal ownership, and 32 ac (13 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoo occupy and breed in the Madrean evergreen woodland drainage in the Santa Catalina Mountains on the Coronado National Forest (MacFarland and Horst 2015, pp. 53-54; MacFarland and Horst 2017, pp. 47-50; MacFarland and Horst 2019, pp. 30-31; Cornell Lab of Ornithology 2020 (eBird data); Drost
The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occurs within this unit (monsoonal events). This unit is within the Tucson Mountains Sky Islands and Sonoran Uplands IBA (National Audubon Society 2020e, entire). The drainage includes riparian and Madrean evergreen woodland vegetation in occupied habitat consisting of oak, sycamore, hackberry, juniper, cottonwood, mesquite, walnut, and ocotillo (MacFarland and Horst 2015, p. 122; MacFarland and Horst 2016, p. 59).
Unit 52: AZ-40 Pena Blanca Canyon, Santa Cruz County, Arizona.
Critical habitat Unit AZ-40 is 483 ac (195 ha) in extent and is a 7-mi (11-km)-long continuous segment of stream within Pena Blanca Canyon in Santa Cruz County, Arizona. The entire unit is in Federal ownership. We have excluded the 60-ft (18-m) Roosevelt Reservation from this unit (see Exclusions). Pena Blanca Lake is also included in this unit. The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in this unit regularly during the breeding season (Helentjaris 2014, entire; MacFarland and Horst 2015, pp. 19-22; AGFD 2018, entire; Cornell Lab of Ornithology 2020 (eBird data)). This unit is part of the area within the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo, which is outside mainstem rivers and their tributaries as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occurs within this unit (monsoonal events). Pena Blanca Canyon and Lake, in Coronado National Forest, are part of the Atascosa Highlands IBA (Arizona IBA 2020a, entire). The occupied drainage includes riparian and Madrean evergreen woodland vegetation consisting primarily of oak and willow, with small amounts of juniper, mesquite, and ash (MacFarland and Horst 2015, p. 121).
Unit 53: AZ-41 Box Canyon, Pima County, Arizona.
Critical habitat Unit AZ-41 is 536 ac (217 ha) in extent and is a 7-mi (11-km)-long continuous segment of stream within Box Canyon in Pima County, Arizona. Approximately 317 ac (128 ha) is in Federal ownership; 184 ac (74 ha) is in State ownership; and 34 ac (14 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos are occupying and nesting in this unit regularly during the breeding season (Sebesta 2014, entire; MacFarland and Horst 2015, entire; MacFarland and Horst 2017, pp. 53-56; Cornell Lab of Ornithology 2020 (eBird data); Drost
Unit 54: AZ-42 Rock Corral Canyon, Santa Cruz County, Arizona.
Critical habitat Unit AZ-42 is 214 ac (87 ha) in extent and is a 3-mi (5-km)-long continuous segment of stream within Rock Corral Canyon in Santa Cruz County, Arizona. Approximately 190 ac (77 ha) is in Federal ownership, and 25 ac (10 ha) is in State ownership. The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in this unit during the breeding season (MacFarland and Horst 2015, pp. 5, 23-24; Cornell Lab of Ornithology 2020 (eBird data); Drost
Unit 55: AZ-43 Lyle Canyon, Santa Cruz and Cochise Counties, Arizona.
Critical habitat Unit AZ-43 is 1,293 ac (523 ha) in extent and is a 7.5-mi (12-km)-long continuous segment of stream within Lyle Canyon in Santa Cruz and Cochise Counties, Arizona. Approximately 716 ac (290 ha) is in Federal ownership and 577 ac (234 ha) is in other ownership. The site is considered occupied at the time of listing. Western yellow-billed cuckoo occupy Madrean evergreen woodland drainages during the breeding season in Korn and Lyle Canyons (MacFarland and Horst 2015, pp. 33-36; Drost
This unit is part of the area within the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo, which is outside mainstem rivers and their tributaries as identified in our conservation strategy. The unit provides
Unit 56: AZ-44 Parker Canyon Lake, Santa Cruz and Cochise Counties, Arizona.
Critical habitat Unit AZ-44 is 1,499 ac (607 ha) in extent and is a 10.5-mi (16-km)-long continuous segment of stream near Parker Canyon Lake in Santa Cruz and Cochise Counties, Arizona. Approximately 1,424 ac (576 ha) is in Federal ownership, and 75 ac (30 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoo occupy and nest in Madrean evergreen woodland drainages during the breeding season in Collins and Merrit Canyons (MacFarland and Horst 2015, pp. 27-30, 37-38; Cornell Lab of Ornithology 2020 (eBird data); Drost
Unit 57: AZ-45 Barrel Canyon, Pima County, Arizona.
Critical habitat Unit AZ-45 is 920 ac (372 ha) in extent and is a 5-mi (8-km)-long continuous segment of stream within Barrel Canyon in Pima County, Arizona. Approximately 755 ac (306 ha) is in Federal ownership (Coronado National Forest) and 164 ac (66 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoo occupy the Madrean evergreen woodland drainages during the breeding season (Westland Resources, Inc. 2019, entire). This unit is part of the area within the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo, which is outside mainstem rivers and their tributaries as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occurs within this unit (monsoonal events). The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos. This unit is part of the Santa Rita Mountains IBA (National Audubon Society 2016f, entire). Vegetation in occupied habitat is oak, mesquite, and desert willow, with an occasional sycamore, walnut, Goodding's willow, and juniper.
Unit 58: AZ-46 Gardner Canyon; Pima and Santa Cruz Counties, Arizona.
Critical habitat Unit AZ-46 is 5,801 ac (2,056 ha) in extent and is a 14-mi (23-km)-long continuous segment of stream within Gardner Canyon in Pima and Santa Cruz Counties, Arizona. Approximately 4,320 ac (1,748 ha) is in Federal ownership; 290 ac (117 ha) is in State ownership; and 471 ac (191 ha) is in other ownership. This unit includes suitable habitat within BLM's Las Cienegas National Conservation Area (NCA) that connects Coronado National Forest's Gardner Canyon with BLM's upper Cienega Creek (BLM 2003, entire). The unit is considered to have been occupied at the time of listing. Western yellow-billed cuckoos occupy and nest in Gardner Canyon during the breeding season. Cornell Lab of Ornithology 2020 (eBird data); Drost e
Unit 59: AZ-47 Brown Canyon; Pima County, Arizona.
Critical habitat Unit AZ-47 is 1,113 ac (451 ha) in extent and is an 8-mi (13-km)-long continuous segment of stream within Brown Canyon in Pima County, Arizona. Approximately 726 ac (294 ha) is in Federal ownership; 228 ac (92 ha) is in State ownership; and 159 ac (64 ha) is in other ownership. This site is considered to have been occupied at the time of listing. The upper portion of Brown Canyon and Wash, part of Buenos Aires National Wildlife Refuge, is regularly occupied by nesting western yellow-billed cuckoos during the breeding season (Flatland 2011, entire; American Birding Association 2012, entire; Pima County 2016, p. A-78; Corson 2018, pp. 11-12; Drost
Unit 60: AZ-48 Sycamore Canyon, Patagonia Mountains; Santa Cruz County, Arizona.
Critical habitat Unit AZ-48 is 604 ac (245 ha) in extent and is a 5-mi (8-km)-long continuous segment of stream within Sycamore Canyon in Santa Cruz County, Arizona. The unit is entirely within Federal lands within the Coronado National Forest and is considered to have been occupied at the time of listing. Sycamore Canyon is a well-vegetated riparian corridor in Madrean evergreen woodland in the Patagonia Mountains and is occupied by western yellow-billed cuckoos during the breeding season (MacFarland and Horst 2015, pp. 91, 92; Cornell Lab of Ornithology 2020 (eBird data)). This unit lies within the Patagonia Mountains IBA (National Audubon Society 2016g, entire). This unit is part of the area within the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo, which is outside mainstem rivers and their tributaries as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occurs within this unit (monsoonal events). The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos. Dominant overstory vegetation where western yellow-billed cuckoos have been found during surveys was primarily oak, ash, cottonwood, and mesquite, and dominant midstory vegetation was mesquite,
Unit 61: AZ-49 Washington Gulch; Santa Cruz County, Arizona.
Critical habitat Unit AZ-49 is 585 ac (237 ha) in extent and is a 5-mi (8-km)-long continuous segment of stream within Washington Gulch in Santa Cruz County, Arizona. We have excluded the 60-ft (18-m) Roosevelt Reservation from this unit (see Exclusions). Approximately 361 ac (146 ha) is in Federal ownership, and 222 ac (90 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Washington Gulch is a riparian corridor in Madrean evergreen woodland in the Patagonia Mountains in the Coronado National Forest and is occupied by western yellow-billed cuckoos during the breeding season (MacFarland and Horst 2015, pp. 91-94; Cornell Lab of Ornithology 2020 (eBird data)). This unit is part of the area within the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo, which is outside mainstem rivers and their tributaries as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occurs within this unit (monsoonal events). The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos. This drainage contains an overstory of large oak trees with some juniper and a midstory of manzanita and juniper (MacFarland and Horst 2015; pp. 93, 124, 129). This unit lies within the Patagonia Mountains IBA.
Unit 62: AZ-50 Paymaster Spring and Mowrey Wash; Santa Cruz County, Arizona.
Critical habitat Unit AZ-50 is 903 ac (365 ha) in extent and is made up of segments of stream within Paymaster Spring and Mowrey Wash totaling 5.5 mi (8.8 km) in Santa Cruz County, Arizona. Approximately 390 ac (158 ha) is in Federal ownership, and 512 ac (207 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Paymaster Creek is a riparian corridor in Madrean evergreen woodland in the Patagonia Mountains in the Coronado National Forest and is occupied by western yellow-billed cuckoos during the breeding season (MacFarland and Horst 2015, p. 89; Cornell Lab of Ornithology 2020 (eBird data); Service 2020c, entire). This unit is part of the area within the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo, which is outside mainstem rivers and their tributaries as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occurs within this unit (monsoonal events). The site also provides a movement corridor and migratory stop-over habitat for western yellow-billed cuckoos. This drainage includes riparian and Madrean evergreen woodland vegetation including oak, walnut, juniper, and some pine as the most dominant tree species where western yellow-billed cuckoos were detected during surveys (MacFarland and Horst 2015, p. 123; WestLand Resources, Inc. 2019, entire). This unit lies within the Patagonia Mountains IBA.
Unit 63: CA-1 Sacramento River; Colusa, Glenn, Butte, and Tehama Counties, California.
Critical habitat unit CA-1 is 34,201 ac (13,841 ha) in extent and is a 69-mi (111-km)-long continuous segment of the Sacramento River starting 5 mi (8 km) southeast of the city of Red Bluff in Tehama County, California, to the downstream boundary of the Colusa-Sacramento River State Recreation Area next to the town of Colusa in Colusa County, California. Approximately 2,123 ac (859 ha) is in Federal ownership; 485 ac (196 ha) is in State ownership; and 31,593 ac (12,785 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. This site has been a significant nesting area (nearly 100 nesting pairs in early 1970s) for the western yellow-billed cuckoo in the past but has been in decline (Dettling and Howell 2011a, pp. 30-35; Dettling and Howell 2011b, entire; Dettling
Unit 64: CA-2 South Fork Kern River Valley; Kern County, California.
Critical habitat Unit CA-2 is 2,379 ac (963 ha) in extent and is a 13-mi (21-km)-long continuous segment of the
Unit 65: ID-1 Snake River 1; Bannock and Bingham Counties, Idaho.
Critical habitat unit ID-1 is 5,632 ac (2,276 ha) in extent and is a continuous segment of the Snake River from near the upstream end of the American Falls Reservoir in Bannock County upstream to a point on the Snake River approximately 2 mi (3 km) west of the Town of Blackfoot in Bingham County, Idaho. We have excluded approximately 4,023 ac (1,633 ha) of land from this unit (see Exclusions). Approximately 2,863 ac (1,158 ha) is in Federal ownership; 1,209 ac (489 ha) is in State ownership; and 1,551 ac (628 ha) is in other ownership. The unit is considered to have been occupied at the time of listing and is consistently occupied by western yellow-billed cuckoos during the breeding season. This unit is part of the area outside the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo that is in a different ecological setting as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The unit is at the northern limit of the species' current breeding range.
Unit 66: ID-2 Snake River 2; Bonneville, Madison, and Jefferson Counties, Idaho.
Critical habitat unit ID-2 is 11,442 ac (4,630 ha) in extent and is a 40-mi (64-km)-long continuous segment of the Snake River from the bridge crossing on the Snake River 2 mi (3 km) east of the Town of Roberts in Madison County through Jefferson County and upstream to the vicinity of the mouth of Table Rock Canyon in Bonneville County, Idaho. Approximately 5,862 ac (2,372 ha) is in Federal ownership; 1,940 ac (785 ha) is in State ownership; and 3,641 ac (1,473 ha) is in other ownership. Portions of this unit are within lands designated as the Snake River ACEC by BLM, and the Land and Water Conservation Fund (LWCF) program has purchased 32 properties in fee title and set aside approximately 42 conservation easements (22,400 ac (9,065 ha)) within the ACEC. The western yellow-billed cuckoo has been identified as a species of concern in the ACEC. The unit is considered to have been occupied at the time of listing and is consistently occupied by western yellow-billed cuckoos during the breeding season. This unit is part of the area outside the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo that is in a different ecological setting as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. State and County road crossings account for less than 1 percent of total ownership of this proposed unit. The unit is at the northern limit of the species' current breeding range.
Unit 67: ID-3 Henry's Fork and Teton Rivers; Madison and Fremont Counties, Idaho.
Critical habitat Unit ID-3 is 4,641 ac (1,878 ha) in extent and is a 15-mi (24-km)-long continuous segment of the Henry's Fork of the Snake River in Madison County from approximately 16 km (10 mi) upstream of the confluence with the Snake River to a point on the river approximately 1.6 km (1 mi) downstream of the town of St. Anthony in Fremont County, Idaho. Approximately 756 ac (306 ha) is in Federal ownership; 511 ac (207 ha) is in State ownership; and 3,374 ac (1,365 ha) is in other ownership. This unit is occupied by western yellow-billed cuckoos during the breeding season and represents the northern limit of the species' currently known breeding range. This unit is part of the area outside the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo that is in a different ecological setting as identified in our conservation strategy. The unit contains all the physical or biological features essential to the conservation of the species and was occupied at the time of listing and is still considered occupied. Inclusion of this unit contributes to the proposed critical habitat designation representing the full breeding range of the DPS. New comments by the American Bird Conservancy during the previous comment period, along with survey and habitat information previously submitted by the BLM and Idaho Department of Fish and Game, show western yellow-billed cuckoos in the expanded area. In response to the comments and new information received, we are amending the previously proposed boundaries of this unit to incorporate additional habitat upstream to approximately 1.6 km (1 mi) downstream of the town of St. Anthony, Fremont County, Idaho. Portions of this unit were removed based on our reevaluation of the habitat.
Unit 68: CO-1 Colorado River; Mesa County, Colorado.
Critical habitat unit CO-1 is 3,137 ac (1,269 ha) in extent and is a 25-mi (40-km)-long continuous segment of the Colorado River in the vicinity of Grand Junction in Mesa County, Colorado. We have excluded approximately 866 ac (351 ha) of land from this unit (see Exclusions). Approximately 196 ac (79 ha) is in Federal ownership; 174 ac (70 ha) is in State ownership; and 2,766 ac (1,119 ha) is in other ownership. The unit is considered to have been occupied at the time of listing and occurs within the unit in the breeding season. This unit is part of the area outside the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo that is in a different ecological setting as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a migration stop-over habitat for western
Unit 69: CO-2 North Fork Gunnison River; Delta County, Colorado.
Critical habitat unit CO-2 is 2,326 ac (941 ha) in extent and is a 16-mi (26-km)-long continuous segment of the North Fork of the Gunnison River between Hotchkiss and Paeonia in Delta County, Colorado. Approximately 115 ac (47 ha) is in Federal ownership, and 2,211 ac (895 ha) is in other ownership. This unit is considered to have been occupied at the time of listing and is consistently used by western yellow-billed cuckoos during the breeding season. This unit is part of the area outside the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo that is in a different ecological setting as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides migratory stop-over habitat for western yellow-billed cuckoos moving farther north.
Unit 70: UT-1 Green River 1; Uintah and Duchesne Counties, Utah.
Critical habitat unit UT-1 is 13,273 ac (5,371 ha) in extent and is made up of segments of the Green River and Duchesne Rivers in the vicinity of Ouray in Uintah County, Utah. We have excluded approximately 15,017 ac (6,077 ha) of land from this unit (see Exclusions). Approximately 4,700 ac (1,902 ha) is in Federal ownership; 4,162 ac (1,684 ha) is in State ownership; and 4,411 ac (1,785 ha) is in other ownership. The unit is considered to have been occupied at the time of listing and has been consistently used by western yellow-billed cuckoos during the breeding season. This unit is part of the area outside the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo that is in a different ecological setting as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a movement corridor for western yellow-billed cuckoos moving farther north. This unit includes areas of riparian vegetation that area suitable as western yellow-billed cuckoo breeding habitat and connected areas of riparian vegetation that are suitable as foraging habitat. Recent surveys in this area revealed multiple western yellow-billed cuckoo detections.
Unit 71: UT-2 Green River 2; Emery and Grand Counties, Utah.
Critical habitat Unit UT-2 is 1,135 ac (459 ha) in extent and is an 8-mi (13-km)-long continuous segment of the Green River north of the town of Green River in Emery and Grand Counties, Utah. Approximately 40 ac (16 ha) is in Federal ownership; 632 ac (256 ha) is in State ownership; and 462 ac (187 ha) is in other ownership. The unit is considered to have been occupied at the time of listing. Recent surveys have shown that this unit has a number of western yellow-billed cuckoos during the breeding season (Utah Division of Wildlife Resources (UDWR) 2012, entire; UDWR 2013, entire; UDWR 2014, entire). This unit is part of the area outside the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo that is in a different ecological setting as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides migratory stop-over habitat for western yellow-billed cuckoos. This unit includes areas of riparian vegetation that are suitable as western yellow-billed cuckoo breeding habitat and connected areas of riparian vegetation that are suitable as foraging habitat.
Unit 72: TX-1 Terlingua Creek and Rio Grande; Brewster County, Texas.
Critical habitat unit TX-1 is 7,913 ac (3,202 ha) in extent and is a 45-mi (72-km)-long continuous segment from lower Terlingua Creek to the Rio Grande in Brewster County, Texas. Approximately 7,792 ac (3,153 ha) is in Federal ownership in Big Bend National Park, and 121 ac (49 ha) is in other ownership. Because this unit is along the border between United States and Mexico, we delineated the southern edge of the unit to coincide with the National Park boundary. The unit is considered to have been occupied at the time of listing and has been consistently occupied by western yellow-billed cuckoos during the breeding season. This unit is part of the area outside the Southwest portion of the DPS that provides breeding habitat for the western yellow-billed cuckoo that is in a different ecological setting as identified in our conservation strategy. The unit provides the habitat component provided in PBF 1 and the prey component in PBF 2. Hydrologic processes, in natural or altered systems, that provide for maintaining and regenerating breeding habitat as identified in PBF 3 occur within this unit but depend on river flows and flood timing. The site also provides a north-south movement corridor for western yellow-billed cuckoos breeding farther north. Although tamarisk, a nonnative species that may reduce the habitat's value, is a major component of this unit, the area still provides habitat for the species and considered essential. This unit includes areas of riparian vegetation that are suitable as western yellow-billed cuckoo breeding habitat and connected areas of riparian vegetation that are suitable as foraging habitat.
In our review of all units along the U.S./Mexico border, we also reviewed Unit 72 (TX-1 Terlingue Creek/Rio Grande). Unit 72 occurs along the border mostly in Big Bend National Park and includes Santa Elena Canyon and several other heavily used public use areas along the National Park's southern boundary in Brewster County, Texas. The NPS manages the land and natural resources at Big Bend National Park, and western yellow-billed cuckoo have been observed on a regular basis at Cottonwood Campground at Santa Elena Canyon and the area provides significant value as breeding habitat for the species. Flow of the Rio Grande within this unit is persistent which supports relatively intact riparian vegetation along this section of the river. Designation of critical habitat here highlights the conservation needs of the western yellow-billed cuckoo and Rio Grande riparian communities to the general public and Federal partners. Because management of natural resource and sensitive species are conducted by the NPS within this unit, Texas does not include the Roosevelt Reservation, and any border activities would need to be coordinated with NPS, we did not consider the exclusion of areas within Unit 72.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund,
We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the Corps under section 404 of the Clean Water Act (33 U.S.C. 1251
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate consultation on previously reviewed actions to address certain circumstances and where the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed.
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that result in a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of the western yellow-billed cuckoo. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of these species or that preclude or significantly delay development of such features. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the western yellow-billed cuckoo. These activities include, but are not limited to:
(1) Actions that would remove, thin, or destroy riparian western yellow-billed cuckoo habitat, without implementation of an effective riparian restoration plan that would result in the development of riparian vegetation of equal or better quality in abundance and extent. Such activities could include, but are not limited to, removing, thinning, or destroying riparian vegetation by mechanical (including controlled fire), chemical, or biological (poorly managed biocontrol agents) means. These activities could reduce the amount or extent of riparian habitat needed by western yellow-billed cuckoos for sheltering, feeding, breeding, and dispersing.
(2) Actions that would appreciably diminish habitat value or quality through direct or indirect effects. These activities could permanently eliminate available riparian habitat and food availability or degrade the general suitability, quality, structure, abundance, longevity, and vigor of riparian vegetation. Such activities could include, but are not limited to: Spraying of pesticides that would reduce insect prey populations within or adjacent to riparian habitat; introduction of nonnative plants, animals, or insects; habitat degradation from recreational activities; and activities such as water diversions or impoundments that would result in diminished or altered riverflow regimes, groundwater extraction activities, dam construction and operation activities, or any other activity that negatively changes the frequency, magnitude, duration, timing, or abundance of surface flow. These activities have the potential to reduce or fragment the quality or amount or extent of riparian habitat needed by western yellow-billed
As we understand the ongoing existing water management operations, they are not of the magnitude that would cause destruction or adverse modification of critical habitat. If discretion exists to modify these plans and if reinitiation of consultation on these plans becomes necessary, according to our regulations at 50 CFR 402.16, we would evaluate the effects according to the modification. If reinitiation of consultation becomes necessary, the environmental baseline, as defined in 50 CFR 402.02, would include the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. To the extent agencies propose to modify their actions in a manner that does not appreciably diminish the value of the critical habitat as a whole for the western yellow-billed cuckoo, it is unlikely that these activities would meet the definition of destruction or adverse modification of critical habitat under the Act.
(3) Actions that would permanently destroy or alter western yellow-billed cuckoo habitat. Such activities could include, but are not limited to, discharge of fill material, draining, ditching, tiling, pond construction, and stream channelization (due to roads, construction of bridges, impoundments, discharge pipes, stormwater detention basins, dikes, levees, and other things). These activities could permanently eliminate available riparian habitat and food availability or degrade the general suitability, quality, structure, abundance, longevity, and vigor of riparian vegetation and microhabitat components necessary for nesting, migrating, food, cover, and shelter.
(4) Actions that would result in alteration of western yellow-billed cuckoo habitat from management of livestock or ungulates (for example, horses, burros). Such activities could include, but are not limited to, unrestricted ungulate access and use of riparian vegetation; excessive ungulate use of riparian vegetation during the nongrowing season (for example, leaf drop to bud break); overuse of riparian habitat and upland vegetation due to insufficient herbaceous vegetation available to ungulates; and improper herding, water development, or other livestock management actions. These activities could reduce the volume and composition of riparian vegetation, prevent regeneration of riparian plant species, physically disturb nests, alter floodplain dynamics, alter watershed and soil characteristics, alter stream morphology, and facilitate the growth of flammable nonnative plant species.
(5) Actions in relation to the Federal highway system, which could include, but are not limited to, new road construction and right-of-way designation. These activities could eliminate or reduce riparian habitat along river crossings necessary for reproduction, sheltering, or growth of the western yellow-billed cuckoo.
(6) Actions that would involve funding and/or implementation of activities associated with cleaning up Superfund sites, erosion control activities, flood control activities, communication towers, solar arrays, and border walls or fences. These activities could eliminate or reduce habitat for the western yellow-billed cuckoo.
(7) Actions that would affect waters of the United States under section 404 of the Clean Water Act. Such activities could include, but are not limited to, placement of fill into wetlands. These activities could eliminate or reduce the habitat necessary for the reproduction, feeding, or growth of the western yellow-billed cuckoo.
Finally, we note that for any of the seven categories of actions outlined above, we and the relevant Federal agency may find that the agency's anticipated actions affecting critical habitat may be appropriate to consider programmatically in section 7 consultation. Programmatic consultations can be an efficient method for streamlining the consultation process, addressing an agency's multiple similar, frequently occurring, or routine actions expected to be implemented in a given geographic area. Programmatic section 7 consultation can also be conducted for an agency's proposed program, plan, policy, or regulation that provides a framework for future proposed actions. We are committed to responding to any agency's request for a programmatic consultation, when appropriate and subject to the approval of the Director, as a means to streamline the regulatory process and avoid time-consuming and inefficient multiple individual consultations.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. There are no Department of Defense (DoD) lands with a completed INRMP within the final critical habitat designation.
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.
When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive due to the requirement that protection from destruction of adverse modification as a result of actions with a Federal nexus avoid destruction or adverse modification of the habitat; the educational benefits of increasing public awareness and educational benefits of the presence of western yellow-billed cuckoo; the recovery benefits of mapping the location of habitat that is essential habitat for recovery of the listed species, and importance of habitat protection; and any additional benefits that may result from a designation due to State or Federal laws that may apply to critical habitat, including protection from destruction or adverse modification of critical habitat.
When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation or in the continuation, strengthening, or encouragement of partnerships. Additionally, continued implementation of an ongoing management plan or implementation of a new management plan that would not be implemented if critical habitat were designated that provides conservation that is equal to or more than the conservation that a critical habitat designation provides would reduce the benefits of including that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering the benefits of inclusion and exclusion. We consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; whether the public participated in the development of the conservation plan; the degree of agency review and required determinations, including compliance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4231
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. In order to consider economic impacts, we prepared an incremental effects memorandum (IEM) and screening analysis which, together with our narrative and interpretation of effects we consider our draft economic analysis of the critical habitat designation and related factors (IEc 2020, entire). We made the analysis, dated February 5, 2020, available for public review from February 27, 2020, through April 27, 2020. The DEA addressed probable economic impacts of critical habitat designation for the western yellow-billed cuckoo. Following the close of the comment period, we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Additional information relevant to the probable incremental economic impacts of critical habitat designation for the western yellow-billed cuckoo is summarized below and available in the screening analysis for the western yellow-billed cuckoo (IEc 2020, entire), available at
In our screening memo, which was based on our 2013 and 2019 review of potential economic impacts and comments received on our analysis established that the primary expected impact from the critical habitat designation would be the additional analysis to consider adverse modification of critical habitat (and not just jeopardy). While additional analysis for critical habitat in a consultation will require time and resources by both the Federal action agency and the Service, in most circumstances, these additional analyses would be predominantly administrative in nature and would not incur significant costs. Our screening analysis also includes discussion of other incremental impacts that may be triggered by this action that in turn may result in costs or benefits—such as, additional permitting requirements or changes in public perception. However, those impacts are uncertain, and some of the data necessary for a full assessment of those costs and benefits are lacking. We recognize that changes in land value are possible. But because the magnitude and timing are uncertain, the best assessment of these possible impacts is to conduct a bounding analysis of the total possible land value costs and benefits of developable land within the critical habitat designation.
The critical habitat designation for the western yellow-billed cuckoo includes 63 units in 7 western States: Arizona, California, Colorado, Idaho, New Mexico, Texas, and Utah. A total of 298,845 ac (120,939 ha) is being designated after excluding or removing 194,820 ac (78,840 ha). Approximately 35 percent of the proposed total acreage is Federal land, 11 percent is State land, and 54 percent is privately owned or owned by local government entities. No Tribal lands are being designated. All critical habitat units are considered to be occupied.
The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies and, in some cases, third parties, most frequently State agencies or municipalities. Activities we expect would be subject to consultations that may involve private entities as third parties are residential and commercial development that may occur on Tribal or private lands. However, all Tribal lands have been excluded and based on coordination efforts State and local agencies, the cost to private entities within these sectors is expected to be relatively minor (administrative costs of less than $5,200 per formal consultation effort) and, therefore, would not be significant.
The probable incremental economic impacts of the western yellow-billed cuckoo critical habitat designation are expected to be limited to additional administrative effort, as well as minor costs of conservation efforts resulting from a small number of future section 7 consultations. This low level of impacts is anticipated because, given that the critical habitat is occupied by the species, actions that may adversely modify the critical habitat would also likely jeopardize the continued existence of the species; as a result, other than administrative costs, incremental economic impacts of critical habitat designation over and above impacts from consulting for jeopardy are unlikely. At approximately $5,200 or less per formal consultation, in order to reach the threshold of $100 million of incremental administrative impacts in a single year, Federal agencies would need to undertake more than 20,000 formal consultations in a single year. In our 2020 economic screening memo, we identified 16 formal consultations initiated for the western yellow-billed cuckoo since listing. The resulting incremental economic burden is estimated to be less than $74,000 in a given year (IEc 2019, entire). This estimate calculated the administrative cost (staff time) the Federal agency would need to expend on its analysis of adverse modification of critical habitat for each consultation. As discussed above, we recognize that changes in land value are possible. Because the magnitude and timing are uncertain, we conducted a bounding analysis of the per-acre land values for undeveloped properties within the
The Service considered the economic impacts of the critical habitat designation as described above. Based on this information, the Secretary has determined not to exercise his discretion to exclude any areas from this designation of critical habitat for the western yellow-billed cuckoo based on economic impacts.
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (
We cannot, however, automatically exclude requested areas. First, when we adopted the policy on exclusion, we explained that, when DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, it must provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation.
Second, even if the agency provides a reasonably specific justification, the result is not that we automatically exclude the area, but rather that we undertake an exclusion analysis to determine whether or not to exclude the area. In undertaking that exclusion analysis, we will defer to the expert judgment and give great weight to national-security and homeland-security concerns of DoD, DHS, or another Federal agency as outlined in our policy (81 FR 7226).
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the DoD where a national-security impact might exist. We received comments from the Department of the Army and Department of the Air Force requesting exclusion of areas used by the Army and Air Force for training operations based on national security or other military operations. The comments were from the Yuma Proving Grounds (Department of the Army 2014a, entire) and the Luke Air Force Base (Department of the Air Force 2014, entire) concerning airspace above critical habitat; however, the actions described by the two installations (overflight of critical habitat areas) do not directly or indirectly affect the physical or biological features of critical habitat for the western yellow-billed cuckoo; thus, they would not require consideration of adverse modification of the critical habitat. Consequently, national security activities carried out by the Army operations at Fort Yuma or operations by Luke Air Force Base will not be disrupted as a result of designation of critical habitat. Therefore, we are including these areas in our critical habitat designation.
We also received comments from the U.S. Army installation at Fort Huachuca requesting that areas outside the installation in Unit 16 (AZ-14) that includes the San Pedro Riparian National Conservation Area (SPRNCA) be excluded from the final designation (U.S. Department of the Army 2014b, entire). Unit 16 is managed by the BLM and composed of Federal, State, and private lands and not owned by the DoD or part of the lands managed under the Fort Huachuca's INRMP or used for training. The Army's rationale for the requested exclusion was that any additional restrictions to ground water pumping and water usage could affect their ability to increase staffing when needed or carry out missions critical to national security. The Army also stated that designation of lands within the SPRNCA would increase its regulatory burden and disrupt its operations related to national security but provided no specific examples or information supporting or explaining these claims either through its comments or during our meetings with them after the revised proposed rule was issued. The Army pointed to its continued land stewardship actions and its commitment to protecting natural resources on the base.
As stated above, the lands within Unit 16 (AZ-14) are primarily owned and managed by BLM. Declining base flow and habitat loss in the San Pedro River due anthropogenic factors, drought, and climate change has long been a concern
However, although the Fort's water conservation measures are intended to avoid, minimize, and/or offset the effects of water use to the Upper San Pedro River Unit, they also do not constitute a western yellow-billed cuckoo conservation plan or prevent water use or habitat loss by other entities affecting this unit. The Fort's water conservation actions are not sufficient to protect the San Pedro River critical habitat from ongoing and future actions that threaten to reduce flow and western yellow-billed cuckoo suitable habitat in this large unit. The Fort does not manage or control lands covered by this unit and ground water use is only one component of western yellow-billed cuckoo PBFs. The Service has engaged in several Section 7 consultations on proposed actions that may affect western yellow-billed cuckoo habitat but for which the Fort has no management authority including herbicide treatment, fire management, grazing, exotic plant control, mesquite (breeding habitat) removal, recreation, off-road vehicle use, development, and other proposed actions that may result in loss of water or suitable habitat. We will continue to engage in future consultations that may affect habitat in this active unit. Given that the Fort's groundwater use has been determined to not adversely affect western yellow-billed cuckoos or their habitat, it is unlikely that there would be future restrictions on the Fort's groundwater use resulting from the designation of critical habitat and accordingly, we are not considering the area for exclusion from this final rule due to national security. Designating critical habitat may actually help retain base flow and western yellow-billed cuckoo habitat, through section 7 consultation with other entities affecting this unit.
We received a request from the U.S. Customs and Border Protection (CBP) under the Department of Homeland Security (DHS) that the Roosevelt Reservation portion of critical habitat along the U.S./Mexico border be considered for exclusion under section 4(b)(2) of the Act for national security reasons.
The Roosevelt Reservation is a 60-ft (18 m) wide strip of land owned by the Federal Government along the United States side of the U.S./Mexico border in California, Arizona, and New Mexico (DHS 2020, entire). No critical habitat was proposed along the border in New Mexico, while the border area in Texas is not part of the Roosevelt Reservation (Proclamation 758 1907, entire). DHS and CBP requested an exclusion for portions of the Roosevelt Reservation located in Yuma, Pima, Santa Cruz, and Cochise counties in Arizona. Their exclusion request identified Unit 1 (CA-AZ 1), Unit 44 (AZ-32), Unit 45 (AZ-33), Unit 52 (AZ-40), Unit 20 (AZ-18), Unit 61 (AZ-49), Unit 16 (AZ-14), and Unit 21 (AZ-19). The area being excluded totals 113 ac (46 km). All the units are considered to have been occupied at the time of listing and are currently occupied. Unit 1 (CA-AZ 1) has been excluded due to management from the LCR MSCP (see Exclusions
The U.S. Border Patrol (USBP), a law enforcement component of CBP, uses the Roosevelt Reservation for border security operations. The mission of the CBP is “To safeguard America's borders thereby protecting the public from dangerous people and materials while enhancing the Nation's global economic competitiveness by enabling legitimate trade and travel.” The Roosevelt Reservation contains border security related infrastructure consisting of border barrier, lighting, a patrol road, and cleared vegetation of the 60-ft (18-m) wide reservation. USBP conducts routine patrols and law enforcement activities between the land ports of entries such as intervention of drug smuggling, human trafficking, and tracking of illegal immigrant foot traffic. Border enforcement activities can occur along the road bordering the barrier (within the 60-ft (18-m) Roosevelt Reservation) and outside of the Roosevelt Reservation, as needed for enforcement. The Roosevelt Reservation has historically been used for border enforcement actions in Arizona for decades and includes an existing patrol road in most areas. New border barrier is being constructed in portions of the Roosevelt Reservation in Arizona where there has historically not been barrier. These new areas of border barrier include the clearing of vegetation within the 60-ft (18-m) wide Roosevelt Reservation, construction of a patrol road paralleling the barrier, lighting, and detection technology. A significant amount of water, which often flows through these drainages important to the western yellow-billed cuckoo, is being extracted from local sources along the border to mix with cement in border wall construction. Upon completion of construction, these areas of new barrier along with existing areas of barrier will be used for border enforcement actions by USBP for the foreseeable future. DHS states that they will continue to maintain and clear vegetation within the Roosevelt Reservation to ensure a safe operating environment for agents patrolling and enforcing border laws on the border. These border-security activities are not compatible with riparian habitat. As a result, since designating the 60-ft (18-m) wide Roosevelt Reservation as critical habitat for the western yellow-billed cuckoo would interfere with on-going border security operations, DHS states that the 60-ft (18-m) wide Roosevelt Reservation should be excluded because of national security reasons.
DHS and CBP currently have the authority to conduct work within the 60-ft (18-m) Roosevelt Reservation to
Currently, CBP is authorized to access the project area; remove vegetation; extract and use water; and create, maintain, and use roads, barrier fence, drainage, and lighting, as well as conduct operations involved with homeland security. Actions pertaining to the current building, maintenance, and operation of the border infrastructure are considered to have negative effects to western yellow-billed cuckoo individuals and habitat, based on the western yellow-billed cuckoo's behaviors and biological needs. Some of the actions CBP takes within the Roosevelt Reservation may also affect western yellow-billed cuckoos immediately outside the Roosevelt Reservation, and include actions such as but not limited to: Drainage design, gate placement and operations, and lighting footprint.
An important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners and the public regarding the potential conservation value of an area, and it may help focus management and conservation efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable and would continue to encourage collaboration between DHS, CBP, and USBP and the Service.
The border area is important because it spans riparian areas and associated drainages that run north-south between Mexico and the U.S. These corridors are migratory routes of not only western yellow-billed cuckoos, but also many other migratory birds. Including the Roosevelt Reservation provides opportunities for education and public awareness concerning migratory birds' needs, particularly those of the western yellow-billed cuckoo and potentially encourages future restoration and minimization of adverse effects in areas designated. This may lead to retaining existing trees, allowing for successional development of future riparian habitat, and provide for naturally functioning drainages to maintain or restore the environmental qualities of the sites. Retaining hydrological processes that allow for drainages to fully function naturally will sustain riparian habitat upstream and downstream of the Roosevelt Reservation. Inclusion of these border areas delineates geographically important habitat for this species that may otherwise remain unknown by agencies and organizations working along the border.
In addition, inclusion of western yellow-billed cuckoo habitat within the critical habitat designation would be consistent with other designations of critical habitat for other listed species along the border without exclusions. The border includes designated critical habitat for the jaguar (
However, because of the waiver discussed above, which waives ESA requirements, the benefits of including this area within the designation are relatively low, given that section 7 consultations are unlikely to occur.
The benefits of excluding the 60-ft (18-m) Roosevelt Reservation area are significant. CBP has been tasked with enforcing national security along border areas of the United States. The Roosevelt Reservation and infrastructure within the area is a key component in assisting CBP to conduct its normal operations and fulfilling their national security mission along the southern border of the United States. CBP has identified the following activities and infrastructure occurring within the Roosevelt Reservation: Barrier fencing, lighting systems, enforcement zones, patrol roads, cleared vegetation, vehicular patrol operations, ongoing border barrier construction and maintenance, and illegal immigrant foot traffic and trespass. The designation of the Roosevelt Reservation may reduce CBP's availability of unencumbered space to support its operations. By excluding the 60-ft (18-m) Roosevelt Reservation the CBP would be able to fulfill its mission of securing the border and conduct necessary border patrol operations as well as construct any necessary border security infrastructure.
Excluding the Roosevelt Reservation from western yellow-billed cuckoo critical habitat will enable CBP to continue actions without a need to consult on the possible effects of adverse modification to critical habitat. CBP states that excluding critical habitat will also reduce the chances that they will need to obtain additional waivers that they might not otherwise need for border infrastructure projects.
By excluding the Roosevelt Reservation, we will maintain our working relationship with the DHS/CBP. The Department of the Interior (DOI), Department of Agriculture (USDA), and DHS entered into a Memorandum of Understanding (MOU) in 2006 (DHS-DOI-USDA 2006, entire). The MOU is intended to provide consistent goals, principles, and guidance related to DHS, DOI, and USDA working together in fulfilling their mandated responsibilities. The MOU sets goals for communication, cooperation, and resolving conflicts while allowing for border security operations such as: Law enforcement operations; tactical infrastructure installation; utilization of roads; and minimization and/or prevention of significant impact on or impairment of natural and cultural resources, including those protected under the Act.
Excluding the Roosevelt Reservation from the designation of critical habitat so that CBP border activities can continue could also have several positive effects to western yellow-billed cuckoos. For example, border infrastructure and patrolling could help prevent unauthorized trespass and resource destruction to areas adjacent to the border that may impact western yellow-billed cuckoo habitat.
The benefits of including lands in a critical habitat designation include educating landowners, agencies, tribes, and the public regarding the potential conservation value of an area, as well as potentially helping to focus conservation efforts on areas of high value for certain species and maintaining consistency with other areas being designated for other listed species within the Roosevelt Reservation. Because DHS and CBP have obtained a waiver of ESA requirements, the benefits of including the area as critical habitat is minimized. Because the Roosevelt Reservation only extends 60 ft (18 m) along the border, the amount of area associated with the exclusion is small and the overwhelming majority of critical habitat that is being designated adjacent to the Roosevelt Reservation remains in the final designation, allowing for the educational benefits to remain. As a result, the educational benefits are small.
The benefits of exclusion of the Roosevelt Reservation are significant. We base this on several reasons. Firstly, the exclusion will allow DHS to conduct its mission of securing the border unimpaired from the designation of critical habitat for the western yellow-billed cuckoo. Secondly, the exclusion will further our partnership with DHS and allow for coordination of both the Service's and DHS's responsibilities. We view this as a significant benefit of exclusion. Thirdly, exclusion would allow for CBP to continue conducting border infrastructure and patrolling thereby helping to prevent unauthorized trespass and resource destruction to areas adjacent to the Roosevelt Reservation that may affect western yellow-billed cuckoo habitat. We reviewed and evaluated the benefits of inclusion and benefits of exclusion for the 60-ft (18-m) Roosevelt Reservation for the DHS to conduct its national security operations and have determined that the benefits of excluding outweigh the benefits of including the areas.
Because of the 2006 MOU, CBP has a track record of communicating with the Service and of remaining committed to seeking solutions to reduce harm along the border to listed species and their habitat, including the western yellow-billed cuckoo. In addition, if the operation waivers are discontinued, DHS and CBP would be required to consult with the Service under section 7 of the Act. These consultations would need to consider the effects on the species and its habitat, and could be more numerous, complex, or costly if the areas are included within the critical habitat designation. We have determined that exclusion of the 60-ft (18-m) Roosevelt Reservation lands from the critical habitat designation will not result in the extinction of the western yellow-billed cuckoo. Accordingly, we have determined that areas totaling 12 ac (5 ha) within the (60-ft (18-m)) Roosevelt Reservation in Unit 44 (AZ-32) (0.6 ac (0.24 ha)), Unit 45 (AZ-33) (0.26 ac (0.1 ha)), Unit 52 (AZ-40) (0.67 ac (0.27 ha)), Unit 20 (AZ-18) (4 ac (2 ha)), Unit 61 (AZ-49) (1 ac (0.4 ha)), Unit 16 (AZ-14) (0.6 ac (0.24 ha)), and Unit 21 (AZ-19) (4 ac (2 ha)), are excluded under subsection 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species.
When identifying the benefits of inclusion for an area, we consider other relevant impacts, such as the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. The western yellow-billed cuckoo migrates and is present in the U.S. mainly during its breeding season (generally May through September). Regardless of the time of year, proposed actions with a Federal nexus that may remove or reduce the quality or quantity of critical habitat must undergo Section 7 consultation for an adverse modification analysis. Similarly, the listing of the western yellow-billed cuckoo as a threatened species ensures that, regardless of the time of year, consultation under the jeopardy standard in either section 7 or section 10 of the Act would also be required in areas where members of the species are known to occur. When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation, or in the continuation, strengthening, or encouragement of partnerships.
In the case of western yellow-billed cuckoo, the benefits of critical habitat include public awareness of the presence of western yellow-billed cuckoo and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for western yellow-billed cuckoo due to protection from destruction or adverse modification of critical habitat. Additionally, continued implementation of an ongoing management plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering the benefits of inclusion. We consider a variety of factors, including, but not limited to, the degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information (see Policy on Exclusions (81 FR 7226 at 7247)).
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, any additional public comments we received, and the best scientific data available, we evaluated whether certain lands in the critical habitat were appropriate for exclusion from this final designation under section 4(b)(2) of the Act. If our analysis indicated that the benefits of excluding lands from the final designation outweighed the benefits of designating those lands as critical habitat, then we identified those areas for the Secretary to exercise his
In considering whether to exclude areas under section 4(b)(2) of the Act, we consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs); whether there are other conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat; whether there are tribal conservation plans and partnerships or whether inclusion or exclusion of specific areas could affect the government-to-government relationship of the United States with tribal entities; and whether there are social impacts that might occur because of the designation.
In the paragraphs below, we provide a detailed balancing analysis of the areas being excluded under section 4(b)(2) of the Act. Table 3 below provides approximate areas (ac, ha) of lands that meet the definition of critical habitat but that we are excluding from this final critical habitat rule under section 4(B)(2) of the Act.
We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service.
We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below. These factors are not required elements of plans or agreements, and some elements may not apply to a particular plan or agreement.
(i) The degree to which the plan or agreement provides for the conservation of the species or the essential physical
(ii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented.
(iii) The demonstrated implementation and success of the chosen conservation measures.
(iv) The degree to which the record of the plan supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnership.
(v) The extent of public participation in the development of the conservation plan.
(vi) The degree to which there has been agency review and required determinations (
(vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321
(viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.
In the revised proposed rule, we identified approximately 2,793 ac (1,130 ha)) as critical habitat in Alamo Lake Unit 4 (AZ-2) and 500 ac (202 ha) in a portion of the Big Sandy River Unit 31 (AZ-29). Approximately 1,840 ac (745 ha) is in Federal ownership, and 953 ac (386 ha) is in other unclassified ownership but most likely Arizona State Park lands. The vast majority of the critical habitat is within the Alamo Lake State Wildlife Area, which is made up of Corps and State Park Lands. Small upland areas adjacent to the wildlife area belong to BLM. The critical habitat area is a continuous 6-mi (10-km)-long segment of the Santa Maria River and a 3-mi (5-km)-long continuous segment of the Big Sandy River that feeds into the Santa Maria River above Alamo Lake State Park in Mohave and La Paz Counties, Arizona. We are excluding the entire Alamo Lake area (Alamo Lake (Unit 4, AZ-2: 2,793 ac (1,130 ha)) and portions of the Big Sandy River (Unit 31, AZ-29: 500 ac (202 ha) within the Alamo Lake State Wildlife Area from the final designation of western yellow-billed cuckoo critical habitat under section 4(b)(2) of the Act. The BLM lands adjacent to the wildlife area were removed from the designation due to their small size and being made up of upland habitat not containing the PBFs.
The Alamo Lake Wildlife Area (AWA) was created under provisions of the Fish and Wildlife Coordination Act (16 U.S.C. 661
Public input was solicited and addressed in development of the AWA Management Plan and the NEPA review process (AGFD-ASP 1997). The corresponding AWA Property Operational Management Plan addressing the operations of the property, together with the budget, is updated as needed to reflect the changes in operational management (AGFD 2012).
We identified western yellow-billed cuckoo critical habitat along the Big Sandy, Santa Maria, and Bill Williams Rivers, which are part of Alamo Lake. The AWA Management Plan describes the unique riparian, wetland, and aquatic aspects of the area for a variety of species, specifically targeting the southwestern willow flycatcher for management and including the western yellow-billed cuckoo as a species of wildlife concern. Two of the specific resources are directed toward the habitat needs of the southwestern willow flycatcher and the western yellow-billed cuckoo: (1) Maintain and enhance aquatic and riparian habitats to benefit wildlife; and (2) restore, manage, and enhance habitats for wildlife of special concern. Large Fremont cottonwood and Goodding's willow forests, mesquite bosque, and small areas of wetland currently exist along the Big Sandy, Santa Maria, and upper Bill Williams Rivers. Increasing and improving these habitats will benefit riparian- and wetland-dependent species (AGFD 2012, pp. 4-6). The objective for maintaining and enhancing riparian habitat includes (a) Maintaining a reservoir level sufficient to ensure suitable soil moisture conditions in the mixed riparian forest, and (b) managing feral burros (
Although the original authority for Corps' Alamo Dam and Lake was for flood control, the Water Resources Development Act of 1996 (Pub. L. 104-303) authorized the operation of the dam to provide fish and wildlife benefits both upstream and downstream of the dam as long as these actions do not reduce flood control and recreation benefits. A multi-year process is underway to develop a long-term operation plan that benefits environmental needs while meeting the dam's maintenance needs (USACE 2020, entire). Environmental needs include management to encourage regeneration and maintenance of riparian vegetation. Revised management is to benefit southwestern willow flycatchers and western yellow-billed cuckoos (USACE 2020, pp. 14-16).
As discussed above under Effects of Critical Habitat Designation
Because the leased property is owned by the Corps, we anticipate future Federal actions that may impact western yellow-billed cuckoos would be proposed by and coordinated with Corps. Ongoing planning among Federal, State, and nongovernment organizations on long-term management of Alamo Lake to benefit riparian habitat and the subsequent section 7 consultation on proposed actions to western yellow-billed cuckoos is likely to result in improving habitat to support the species even if critical habitat is not designated. It is possible that the designation of critical habitat may also provide a benefit by identifying the geographic area where the western yellow-billed cuckoo occurs, raising the level of awareness for managers for both Federal and non-Federal entities. However, because the species has been considered for listing since 2001 and listed since 2014, areas where the species occurs (including Alamo Lake) are well known and land managers understand the value and responsibilities of maintaining habitat for a listed migratory species.
Another important benefit of including lands in a critical habitat designation is that it can serve to inform and educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation, birding, hunting, livestock grazing, recreation, and sportfishing activities, is valuable. The designation of critical habitat may also affect the implementation of Federal laws, such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws; however, the listing of these species, and consultations that have already occurred already provide this benefit. In addition, a multi-year process underway among the Service, Reclamation, the Corps, AGFD, Arizona State Parks, TNC, USGS, and BLM to develop a long-term operation plan along the Bill Williams River (USACE 2020, entire), provides for additional informational and educational benefits. Therefore, in this case we view the regulatory benefit as being largely redundant with the benefit the species receives from listing under the Act, such that designating critical habitat may only result in minimal additional benefits.
A considerable benefit from excluding AWA from western yellow-billed cuckoo critical habitat is the maintenance and strengthening of ongoing conservation partnerships. We identified this area for possible exclusion based on the existence of a management plan. AGFD's management of AWA achieves greater protection than would be achieved through designation of critical habitat alone. The AWA management plan directs resources to maintain and enhance riparian habitat and restore, manage, and enhance habitat for wildlife of special concern including the western yellow-billed cuckoo. To maintain and enhance riparian habitat, AGFD commits to ensuring the reservoir level maintains proper soil moisture conditions and controls livestock and off-highway vehicle trespass.
Although recreation and wildlife resources at Alamo Lake are managed by the AGFD under agreement with the Corps, the conservation space of Alamo Lake and Alamo Dam is owned and the dam operated by the Corps. Alamo Dam is operated primarily for flood control (as compared to water storage and delivery for other reservoirs) and typically remains at low levels, permitting occupancy of western yellow-billed cuckoo and southwestern willow flycatcher habitat. The Corps has consulted with the Service on dam operations and the potential effects to these species. In addition, we expect that ongoing conservation efforts in this area will continue with or without critical habitat designation, limiting the benefits of including the area. Consequently, after reviewing the best available information, we have determined that the benefits of excluding these Federal lands as critical habitat is substantial.
Our collaborative relationship with AGFD makes a difference in our partnership with the numerous stakeholders involved with southwestern willow flycatcher and western yellow-billed cuckoo management and recovery and influences our ability to form partnerships with others. A multi-agency team is currently engaged in long-term management planning to benefit riparian habitat downstream and upstream of Alamo Lake (USACE 2020, entire). Our partners will continue to work on western yellow-billed cuckoo management and recovery without the designation of critical habitat. Ongoing public education by AGFD and other entities will continue without designation of critical habitat. The outreach highlights the value of the AWA for riparian habitat and riparian-dependent birds like the yellow-billed cuckoo. The AWA is one of TNC's Sustainable Rivers Project and is included on the national online Wildlife Viewing Areas (Watchable Wildlife, Inc. 2020). AGFD devotes a web page to AWA on its own wildlife viewing website (AGFD 2020), emphasizing protection, restoration, management and enhancement of wildlife habitat and associated wildlife populations. AGFD's stated management philosophy includes allowing for nonconflicting wildlife-associated recreation and other agency and public uses.
Because so many important areas with western yellow-billed cuckoo habitat occur on non-Federal lands, collaborative relationships with non-Federal landowners are important in recovering the species. The western yellow-billed cuckoo and its habitat are expected to benefit substantially from voluntary landowner management actions that implement appropriate and effective conservation strategies. In addition, we have determined that by providing regulatory relief by excluding State managed areas from critical habitat, we can provide incentives to other non-Federal landowners for additional conservation. Where consistent with the discretion provided by the Act, it is beneficial to implement policies that provide positive incentives to non-Federal landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove
We have determined that the benefits of exclusion of AWA, with the implementation of AGFD's management plan, outweighs the benefits of inclusion because the AGFD is currently managing AWA western yellow-billed cuckoo and southwestern willow flycatcher breeding sites successfully
Past, present, and future coordination with AGFD has provided and will continue to provide sufficient education regarding western yellow-billed cuckoo habitat conservation needs on these lands, such that there would be minimal additional educational benefit from designation of critical habitat. The incremental conservation and benefit of designating critical habitat on part of AWA would largely be redundant with the combined benefits of the existing management. Therefore, the incremental conservation and regulatory benefits of designating critical habitat AWA are minimal.
The benefits of designating critical habitat for the western yellow-billed cuckoo along AWA are relatively low in comparison to the benefits of exclusion. The mentioned long-term land management commitments in the AWA Management Plan, public education and awareness of the riparian value of the AWA, and continuation of a conservation partnership will help foster the maintenance and development of western yellow-billed cuckoo habitat. The AWA management plan outlines actions and commits to tasks that will enhance not only the western yellow-billed cuckoo and its habitat, but other riparian species and the overall health of the riparian ecosystem.
Exclusion of these lands from critical habitat will help preserve and strengthen the conservation partnership we have developed with AGFD and the Corps, as well as foster future partnerships and development of management plans. We anticipate that greater western yellow-billed cuckoo conservation can be achieved through these management actions and relationships than through what are likely to be rare consultations as to impacts of Federal projects on designated critical habitat.
We are committed to working with AGFD to further the conservation of the western yellow-billed cuckoo and other endangered and threatened species. As evident from ongoing management to protect habitat, AGFD will continue to implement its management plans and play an active role to protect western yellow-billed cuckoos and their habitat. Therefore, in consideration of the relevant impact to our partnership with and the ongoing conservation management practices of AGFD, we determined that the significant benefits of exclusion outweigh the benefits of inclusion in the critical habitat designation.
We find that the exclusion of these lands will not lead to the extinction of the western yellow-billed cuckoo because long-term AGFD land management commitments will ensure the long-term persistence and protection of western yellow-billed cuckoo habitat at Alamo Lake and surrounding inflows. As discussed above under Effects of Critical Habitat Designation
We identified 6,047 ac (2,447 ha) within Unit 7 as critical habitat. The Upper Verde River Wildlife Area (UVRWA), owned and managed by the Arizona Game and Fish Department (AGFD), is located approximately 8 mi (12 km) north of Chino Valley in Yavapai County, Arizona. The property consists of four parcels located along the upper Verde River and lower Granite Creek. The AGFD also manages State Trust lands located adjacent to two of the deeded parcels. The primary management emphasis for the UVRWA property is to manage, maintain, and enhance riparian habitat and maintain native fish diversity while the secondary management emphases are environmental education and compatible wildlife oriented recreation (AGFD 2019, entire). The site is identified as an Important Bird Area (IBA) by the National Audubon Society, and a monitoring program in partnership with Prescott Audubon and Audubon Arizona is ongoing (National Audubon Society 2020f, entire). The UVRWA property has four noncontiguous parcels of private land, which collectively include approximately 3 mi (5 km) of the upper Verde River, draining easterly from the confluence with Granite Creek to the Prescott National Forest boundary 3.5 mi (5.6 km) downstream. Riparian vegetation is dominated by Arizona ash, boxelder, Arizona walnut, and netleaf hackberry (AGFD 2019, pp. 6-7). Some tamarisk is interspersed with native tree species. Lower Granite Creek supports a well-developed narrowleaf cottonwood (
We received comments from the AGFD requesting an exclusion for 464 ac (188 ha) of AGFD land and 18 ac (7 ha) of State Trust lands from the final designation of western yellow-billed cuckoo critical habitat under section 4(b)(2) of the Act. The analyses associated with this request appear below.
As discussed above under Effects of Critical Habitat Designation
Another important benefit of including lands in a critical habitat designation is that it can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also affect the implementation of Federal laws, such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
AGFD, Prescott Audubon, and Audubon Arizona have surveyed, and continue to survey the UVRWA, and western yellow-billed cuckoos have been detected on the property (National Audubon Society 2020f, entire). The stated management emphases of the UVRWA—riparian habitat, native fish diversity, environmental education, and compatible wildlife oriented recreation—are wholly consistent with maintaining, enhancing, and potentially expanding habitat suitable for western yellow-billed cuckoos. The Corps, which implements the Clean Water Act, is already aware of riparian habitat on the UVRWA and the area being used by the western yellow-billed cuckoo, as evidenced by the BO described above. There is no demonstrable need for the educational aspect of critical habitat designation, and the site's current management does not require any additional conservation focus. Therefore, the incremental benefits of a western yellow-billed cuckoo designation within the UVRWA would be minimal.
A considerable benefit from excluding AGFD-owned and managed lands in the UVRWA as western yellow-billed cuckoo critical habitat is the maintenance and strengthening of ongoing conservation partnerships with AGFD, Prescott Audubon, and Audubon Arizona through designation as the Upper Verde River State Wildlife Area Important Bird Area (National Audubon Society 2020f, entire). Although not all sites AGFD manages qualify for exclusion, the AGFD has demonstrated a partnership with the Service by becoming a conservation partner in conducting surveys and developing and implementing management plans (Hofer 2015a, entire; Hofer 2015b, entire; Service 2019a, pp. 11-14, 16-17).
The success of AGFD's management of the UVRWA is demonstrated by the consistent detection of western yellow-billed cuckoos and other obligate riparian birds (National Audubon Society 2020f, entire). We expect to continue work and partner with the AGFD on activities to benefit the western yellow-billed cuckoo based on our existing working relationship and coordination activities with the State. Exclusion of this area from the designation will maintain and strengthen the partnership between the Service and AGFD. Our collaborative relationship with AGFD supports our partnership with the numerous stakeholders involved with western yellow-billed cuckoo management and recovery and influences our ability to form partnerships with others. Concerns over perceived added regulation potentially imposed by critical habitat could harm this collaborative relationship.
Because so many important areas with western yellow-billed cuckoo habitat occur on State lands, collaborative relationships with the States will be essential in order to recover the species. The western yellow-billed cuckoo and its habitat are expected to benefit substantially from management actions that implement appropriate and effective conservation strategies. In addition, we have determined that by providing regulatory relief by excluding State managed areas from critical habitat, we can provide incentives to other non-Federal landowners for additional conservation. Where consistent with the discretion provided by the Act, it is necessary to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove
We have determined that the benefits of exclusion of 464 ac (188 ha) of AGFD land and 18 ac (7 ha) of State Trust lands on the Upper Verde River within the AGFD UVRWA, considering the management of the property, outweigh the benefits of inclusion because current management efforts maintain the physical or biological features necessary to develop, maintain, recycle, and protect essential habitat essential for western yellow-billed cuckoo conservation. These actions serve to manage and protect habitat needed for western yellow-billed cuckoo above those conservation measures which may be required if the area was designated as critical habitat. In making this finding, we have weighed the benefits of exclusion against the benefits of including these lands as critical habitat.
Past, present, and future coordination with AGFD has provided and will continue to provide sufficient education regarding western yellow-billed cuckoo habitat conservation needs on the UVRWA, such that there would be minimal additional educational benefit from designation of critical habitat. The incremental conservation and benefit of designated critical habitat on AGFD-owned lands in the UVRWA would largely be redundant with the combined benefits of the existing management. Therefore, the incremental conservation and regulatory benefits of designating critical habitat on AGFD lands along the Upper Verde River are minimal.
The benefits of designating critical habitat for the western yellow-billed cuckoo within the UVRWA are
On the other hand, the benefits of excluding AGFD-owned lands within the UVRWA along the Upper Verde River are considerable. The UVRWA already exhibits riparian vegetation occupied by western yellow-billed cuckoos and AGFD's management of the property is focused on maintaining that riparian habitat. Exclusion of these lands from critical habitat will help preserve and strengthen the conservation partnership we have developed with AGFD, reinforce those we are building with other entities, and foster future partnerships and development of management plans whereas inclusion will negatively impact our relationships with AGFD. We are committed to working with AGFD to further western yellow-billed cuckoo conservation and other endangered and threatened species. AGFD will continue to implement their UVRWA management plan and play an active role to protect western yellow-billed cuckoos and their habitat. Therefore, in consideration of the relevant impact to our partnership with AGFD, and the ongoing conservation management practices of AGFD, we determined that the significant benefits of exclusion outweigh the benefits of inclusion in the critical habitat designation. We have therefore excluded these lands from this final critical habitat designation pursuant to section 4(b)(2) of the Act.
We also find that the exclusion of these lands will not lead to the extinction of the western yellow-billed cuckoo, nor hinder its recovery based on AGFD's track record of management of the UVRWA will ensure the long-term persistence and protection of western yellow-billed cuckoo habitat on the Upper Verde River. AGFD has shown a long-term commitment to maintaining and enhancing areas within its jurisdiction to benefit the western yellow-billed cuckoo and we expect such commitment to continue in the future. As discussed above under Effects of Critical Habitat Designation
We have identified approximately 380 ac (154 ha) as critical habitat in Pinal Creek for exclusion, owned by the private company, Freeport-McMoRan Incorporated (FMC). FMC has ownership and management responsibility for a portion of Pinal Creek in Gila County, Arizona. FMC has been managing the area since 1998, and actively implementing conservation measures for improving the riparian habitat for the southwestern willow flycatcher and developed a management plan in 2012 (FMC 2012, entire). Conservation actions being implemented on FMC lands include control of exotic riparian plant species, improved cattle management, fencing, monitoring, and limiting access to the site in order to foster the development of native riparian habitat. From 1999 to 2007, the water and land management actions implemented resulted in an 88 percent increase in total riparian vegetation volume within the area (FMC 2012, p. 11). In 2015, FMC revised its 2012 southwestern willow flycatcher management plan for the proposed segment of Pinal Creek to include the western yellow-billed cuckoo (FMC 2015, entire). This revised plan, effective on designation of final critical habitat with no termination date, commits FMC to continue implementing the land management actions initiated through a Corps permit that have resulted in the improved abundance, distribution, and quality of riparian habitat for nesting southwestern willow flycatchers and western yellow-billed cuckoos.
As discussed above under Effects of Critical Habitat Designation
It is possible that in the future, Federal funding or permitting could occur on this privately owned and managed segment of Pinal Creek where a critical habitat designation may benefit western yellow-billed cuckoo habitat. For example, a Corps permit was needed to implement FMC's remediation program within Pinal Creek. This permit and associated section 7 consultation resulted in surveys being conducted for the southwestern willow flycatcher. The area was previously thought not to contain nesting occurrences of the species. The results of the surveys confirmed nesting and breeding occurrences of the southwestern willow flycatcher and its habitat. The implementation of the habitat management conditions included in the Corps permit have been a significant contributing factor in causing both species to become established.
However, now that both species are known to occur along Pinal Creek, the benefits of a critical habitat designation are reduced to the possible incremental benefit of critical habitat because the designation would no longer be the sole catalyst for initiating section 7 consultation. Also, because this stream segment is privately owned and is primarily being managed for environmental remediation and habitat improvement, we do not anticipate future Federal actions to impact the current remediation action or habitat improvements associated with the Corps permit and continued management actions. Because of the lack of past section 7 consultations within this Pinal Creek segment of privately owned land, the reduced likelihood of future Federal actions altering the current environment clean-up and management of this stream segment, the presence of southwestern willow flycatcher and western yellow-billed cuckoo territories, and the
Another important benefit of including lands in a critical habitat designation is that it can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also affect the implementation of Federal laws, such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of important sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
At FMC properties in both Arizona and New Mexico, FMC has helped fund western yellow-billed cuckoo studies and cooperated with conducting status surveys. Although the implementation of the Clean Water Act was a catalyst in focusing conservation efforts along Pinal Creek, FMC's existing conservation awareness and continued implementation of conservation actions have greatly improved the physical and biological features for both western yellow-billed cuckoo and southwestern willow flycatcher.
FMC's long-term commitment to environmental clean-up and land management actions that helped create habitat to support southwestern willow flycatcher and western yellow-billed cuckoo territories will continue based on Southwestern willow flycatcher 2012 and 2015 Management Plans and discussions with FMC to incorporate western yellow-billed cuckoos into the efforts. Therefore, the incremental benefits of a western yellow-billed cuckoo critical habitat designation along Pinal Creek would be minimal.
A considerable benefit from excluding FMC-owned Pinal Creek lands as western yellow-billed cuckoo critical habitat is the maintenance and strengthening of ongoing conservation partnerships. FMC has demonstrated a partnership with the Service by becoming a conservation partner in the development and implementation of the Southwestern Willow Flycatcher Recovery Plan, and by solidifying their conservation actions in management plans submitted to us for the southwestern willow flycatcher along the upper Gila River at the U-Bar Ranch in New Mexico (see below) and for the spikedace and loach minnow (2007 and 2011). They have also have demonstrated a willingness to conserve southwestern willow flycatcher and western yellow-billed cuckoo habitat at Pinal Creek and to partner with us by exploring the initial stages of a habitat conservation plan.
The success of FMC's management is demonstrated in the development of riparian areas that provide habitat for nesting southwestern willow flycatchers and western yellow-billed cuckoos. FMC's remedial actions from operation of the Lower Pinal Creek Treatment Plant involve output of water into Pinal Creek, which helps the habitat remain potentially wetter than it would be without treated water from the plant. Additional evidence of the partnership between FMC and the Service is shown by FMC's commitment to provide for adaptive management, such that if future western yellow-billed cuckoo surveys and habitat monitoring detect significant positive or negative changes in the numbers of nesting western yellow-billed cuckoos or in key habitat parameters, they will confer with the Service regarding the impacts of such changes and will adopt alternative conservation measures to promote cuckoo habitat. Exclusion of this area from the designation will maintain and strengthen the partnership between the Service and FMC.
Our collaborative relationship with FMC makes a difference in our partnership with the numerous stakeholders involved with western yellow-billed cuckoo management and recovery and influences our ability to form partnerships with others. Concerns over perceived added regulation potentially imposed by critical habitat could harm this collaborative relationship.
Because so many important areas with western yellow-billed cuckoo habitat occur on private lands, collaborative relationships with private landowners will be essential in order to recover the western yellow-billed cuckoo. The western yellow-billed cuckoo and its habitat are expected to benefit substantially from voluntary landowner management actions that implement appropriate and effective conservation strategies. Where consistent with the discretion provided by the Act, it is beneficial to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove
We have determined that the benefits of exclusion of Pinal Creek on private lands managed by FMC, with the implementation of their management plan, outweigh the benefits of inclusion because current management efforts maintain the physical or biological features necessary to develop, maintain, recycle, and protect essential habitat essential for western yellow-billed cuckoo conservation. These actions serve to manage and protect habitat needed for western yellow-billed cuckoo above those conservation measures which may be required if the area was designated as critical habitat. In making this finding, we have weighed the benefits of exclusion against the benefits of including these lands as critical habitat.
Past, present, and future coordination with FMC has provided and will continue to provide sufficient education regarding western yellow-billed cuckoo habitat conservation needs on these lands, such that there would be minimal additional educational benefit from designation of critical habitat. The incremental conservation and benefit of designated critical habitat on FMC-owned lands would largely be redundant with the combined benefits of the existing management. Therefore, the incremental conservation and regulatory benefits of designating critical habitat on FMC lands along Pinal Creek are minimal.
The benefits of designating critical habitat for the western yellow-billed cuckoo along Pinal Creek are relatively low in comparison to the benefits of exclusion. The operation of the Lower Pinal Creek Treatment Plant remedial activities, long-term land management commitments, and continuation of a conservation partnership will continue to help foster the maintenance and development of western yellow-billed cuckoo habitat. We anticipate that greater western yellow-billed cuckoo conservation can be achieved through
On the other hand, the benefits of excluding FMC-owned lands along Pinal Creek from critical habitat are considerable. FMC's management plan establishes a framework for cooperation and coordination with the Service in connection with resource management activities based on adaptive management principles. Most importantly, the management plan indicates a continuing commitment to ongoing management that has resulted in nesting cuckoo habitat. Exclusion of these lands from critical habitat will help preserve and strengthen the conservation partnership we have developed with FMC, reinforce those we are building with other entities, and foster future partnerships and development of management plans whereas inclusion will negatively impact our relationships with FMC and other existing or future partners. We are committed to working with FMC to further western yellow-billed cuckoo conservation and other endangered and threatened species. FMC has agreed to continue to implement their management plans and play an active role to protect western yellow-billed cuckoos and their habitat. Therefore, in consideration of the relevant impact to our partnership with FMC, and the ongoing conservation management practices of FMC, we determined that the significant benefits of exclusion outweigh the benefits of inclusion in the critical habitat designation.
After weighing the benefits of including as western yellow-billed cuckoo critical habitat against the benefit of exclusion, we have concluded that the benefits of excluding the approximate 5.8 km (3.6 mi) of Pinal Creek with long-term FMC management commitments outweigh those that would result from designating this area as critical habitat.
We find that the exclusion of these lands will not lead to the extinction of the western yellow-billed cuckoo, nor hinder its recovery because long-term FMC water and land management commitments will ensure the long-term persistence and protection of cuckoo habitat at Pinal Creek. As discussed above under Effects of Critical Habitat Designation
We have identified approximately 1,257 ac (509 ha) of critical habitat in Eagle Creek owned by Freeport-McMoRan Incorporated (FMC), a private mining company, for exclusion. FMC has ownership and management responsibility for a portion of Eagle Creek in Greenlee County, Arizona. FMC, the Service, BLM, and USFS have coordinated on a 2020 Draft Eagle Creek Management Plan for managing western yellow-billed cuckoos to reduce livestock damage to Eagle Creek by providing grazing lands in the upland areas. The desired result is the improvement of the abundance, distribution, and quality of riparian breeding habitat for western yellow-billed cuckoos in perpetuity (FMC 2020, pp. 74-85). Eagle Creek and tributaries within Bee Canyon in Greenlee County flow through private lands belonging to FFMC. Eagle Creek meanders in and out of Graham County along the eastern boundary of the San Carlos Apache Reservation.
Groundwater withdrawal in Eagle Creek, primarily for water supply for a large open-pit copper mine at Morenci, Arizona, dries portions of the stream (Sublette
As discussed above under Effects of Critical Habitat Designation
A critical habitat designation requires Federal agencies to consult on whether their activity would destroy or adversely modify critical habitat to the point where recovery could not be achieved. We have a few records of section 7 consultations addressing western yellow-billed cuckoos and their habitat along Eagle Creek. However, because much of this stream segment is privately owned, we do not anticipate future Federal actions to impact western yellow-billed cuckoos. The designation of critical habitat would provide a benefit by identifying the geographic area important for western yellow-billed cuckoos. However, because the species has been considered for listing since 2001 and listed since 2014, areas where the species occurs are well known and land managers understand the value of maintaining habitat for the species.
Another important benefit of including lands in a critical habitat designation is that it can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation, livestock grazing, mining, and sportfishing activities, is valuable. The designation of critical habitat may also affect the implementation of Federal laws, such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws; however, the listing of this species and consultations that have already occurred will provide this benefit. Therefore, in this case we view the regulatory benefit to be largely as redundant with the benefit the species receives from listing under the Act and
Eagle Creek and Bee Canyon are in isolated areas; however, there are ranchers in the area, and the area is used for sportfishing by the general public (77 FR 10868; February 23, 2012). Designation of critical habitat could inform those who either live locally or use the area for recreation about listed species and their habitat needs. FMC has indicated that this area is heavily used by employees of the Morenci Mine, and public outreach as a result of a designation would be used to educate users.
Overall, the benefits of designating western yellow-billed cuckoo critical habitat along Eagle Creek and Bee Canyon are minimal. FMC, BLM, USFS, and grazing permittees are aware of the occurrence of western yellow-billed cuckoos along Eagle Creek and these partners will continue to be engaged with the Draft Eagle Creek Western Yellow-billed Cuckoo Management Plan at this time and in implementation when finalized at time of final designation. Thus, the educational and regulatory benefits of a critical habitat designation are minimized.
A considerable benefit from excluding this part of Eagle Creek and Bee Canyon as western yellow-billed cuckoo critical habitat is the maintenance and strengthening of ongoing conservation partnerships. In 2005, FMC prepared and submitted a plan to the Service for the management of the U-Bar Ranch, which supported exclusion of the FMC's land from the 2006 southwestern willow flycatcher critical habitat designation. The following year, FMC prepared and submitted management plans for the spikedace and loach minnow in Eagle Creek and in the upper Gila River, in the Gila/Cliff Valley. In 2012, FMC submitted a management plan for southwestern willow flycatchers and in 2015 for western yellow-billed cuckoos on their reach of Pinal Creek, where both species are breeding in riparian habitat (FMC 2012, entire; FMC 2015, entire). In part from their knowledge and success with Pinal Creek, FMC has committed to management to improve Eagle Creek and Bee Canyon riparian habitat, by fencing out livestock and providing the infrastructure for upland water delivery for displaced livestock (FMC 2020, pp. 74-85), These actions arose during coordination efforts with BLM, FMC, and the Service while exploring conservation options for western yellow-billed cuckoo in this stretch of Eagle Creek. Additional evidence of the partnership between FMC and the Service is shown by FMC's commitment in the 2015 Pinal Creek Management Plan and the 2020 Draft Eagle Creek Management Plan (FMC 2020, pp. 74-85) to provide for adaptive management, such that if future western yellow-billed cuckoo surveys and habitat monitoring detect significant negative changes in the numbers of western yellow-billed cuckoos or in key habitat parameters, they will confer with the Service regarding the impacts of such changes and will adopt alternative conservation measures to promote western yellow-billed cuckoo habitat.
Our collaborative relationship with FMC makes a difference in our partnership with the numerous stakeholders involved with southwestern willow flycatcher and western yellow-billed cuckoo management and recovery and influences our ability to form partnerships with others.
Because so many important areas with western yellow-billed cuckoo habitat occur on private lands, collaborative relationships with private landowners are important in recovering the species. The western yellow-billed cuckoo and its habitat are expected to benefit substantially from voluntary landowner management actions that implement appropriate and effective conservation strategies. Where consistent with the discretion provided by the Act, it is beneficial to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove
We have determined that the benefits of exclusion of Eagle Creek and Bee Canyon, with the implementation of the FMC management plan (FMC 2020, pp. 74-85), outweigh the benefits of inclusion, and will not result in extinction of the western yellow-billed cuckoo because the FMC is currently managing Pinal Creek and U-Bar western yellow-billed cuckoo and southwestern willow flycatcher breeding sites successfully and is committing to funding, fencing out livestock from Eagle Creek and Bee Canyon, developing livestock waters in the uplands that do not compromise upland springs, monitoring vegetation and western yellow-billed cuckoos, preparing annual reports, and conducting adaptive management to ensure the fencing and watering project conserves habitat in Eagle Creek and Bee Canyon. These actions serve to manage and protect habitat needed for western yellow-billed cuckoo above those conservation measures which may be required if the area was designated as critical habitat. In making this finding, we have weighed the benefits of exclusion against the benefits of including these lands as critical habitat.
Past, present, and future coordination with FMC has provided and will continue to provide sufficient education regarding western yellow-billed cuckoo habitat conservation needs on these lands, such that there would be minimal additional educational benefit from designation of critical habitat beyond those achieved from listing the species under the Act, and FMC's continued work in conserving these species.
The incremental conservation and regulatory benefit of designating critical habitat on part of Eagle Creek and Bee Canyon would largely be redundant with the combined benefits of the existing management. Therefore, the incremental conservation and regulatory benefits of designating critical habitat along Eagle Creek and Bee Canyon are minimal.
The benefits of designating critical habitat for the western yellow-billed cuckoo along Eagle Creek and Bee Canyon are relatively low in comparison to the benefits of exclusion. The mentioned long-term land management commitments, along with the Draft Eagle Creek Management Plan, and continuation of a conservation partnership will help foster the maintenance and development of western yellow-billed cuckoo habitat. The fencing and water development for upland livestock will be designed to keep livestock from using Eagle Creek and Bee Canyon, thereby reducing the effects from grazing and trampling riparian vegetation, while allowing for regeneration to improve habitat. FMC's management plan outlines actions and commits to tasks that will enhance not only the western yellow-billed cuckoo, but other riparian species and the overall health of the creek ecosystem in areas where cattle are fenced out.
Exclusion of these lands from critical habitat will help preserve and strengthen the conservation partnership we have developed with FMC, assist BLM, USFS, and the grazing lessee in managing livestock to prevent it from entering the Gila Box area, as well as foster future partnerships and development of management plans.
Although a critical habitat designation would require Federal actions to consult on adverse modification, because of the infrequency of section 7 consultations within Eagle Creek, the reduced likelihood of future Federal actions, and the landowners commitment to continue implementing land management actions that maintain western yellow-billed cuckoo habitat, the benefits of a critical habitat designation on Eagle Creek are minimized. We anticipate that greater western yellow-billed cuckoo conservation can be achieved through these management actions and relationships than through implementation of critical habitat designation on a project-by-project basis on private land where the occurrence of implementation of critical habitat designation due to Federal funding or permitting is expected to be rare.
We are committed to working with FMC to further western yellow-billed cuckoo conservation and other endangered and threatened species. As evident from ongoing conversations and adaptive management actions, FMC will continue to implement its management plans and play an active role to protect western yellow-billed cuckoos and their habitat. Therefore, in consideration of the relevant impact to our partnership with FMC and the ongoing conservation management practices of FMC, we determined that the significant benefits of exclusion outweigh the benefits of inclusion in the critical habitat designation.
We find that the exclusion of these lands will not lead to the extinction of the western yellow-billed cuckoo, nor hinder its recovery because long-term FMC water and land management commitments will ensure the long-term persistence and protection of western yellow-billed cuckoo habitat at Eagle Creek and Bee Canyon. As discussed above under Effects of Critical Habitat Designation
We identified approximately 40 ac (16 ha) of private land for exclusion from critical habitat based on management and conservation easements for the Sprague Ranch. The Sprague Ranch, included in Unit 64 (CA-2, South Fork Kern River Valley), warrants exclusion from the final designation of critical habitat under section 4(b)(2) of the Act because we have determined that the benefits of excluding Sprague Ranch from western yellow-billed cuckoo critical habitat designation will outweigh the benefits of including it in the final designation based on the long-term protections afforded for southwestern willow flycatcher habitat. The following represents our rationale for excluding the Sprague Ranch from the final designated critical habitat for the western yellow-billed cuckoo.
The Sprague Ranch is an approximately 4,380-ac (1,772-ha) parcel of private land which is managed and conservation easements purchased in a public-private partnership by the Audubon Society, CDFW, and the Corps in 2005. The funding used to purchase the easement and manage the Sprague Ranch was provided by the Corps as a result of biological opinions issued by the Service for the long-term operation of Lake Isabella Dam and Reservoir (Service 1996, 2005b) specifically to provide habitat for and conservation of the southwestern willow flycatcher.
The Sprague Ranch is located immediately north and adjacent to the Kern River Preserve (KRP), which is owned and operated by Audubon, and shares a common border with the KRP of over 3 mi (5 km). Together these co-managed lands provide opportunities for western yellow-billed cuckoo breeding, feeding, and sheltering. The western yellow-billed cuckoo occurs throughout portions of the Sprague Ranch. The Sprague Ranch contains existing riparian forest that can support and maintain nesting territories and migrating and dispersing western yellow-billed cuckoos.
The Sprague Ranch is managed pursuant to a conservation plan dated January 25, 2005. This plan was prepared in partnership with the Service, CDFW, and Audubon to provide consistent management of lands acquired in Unit 64 in compliance with the biological opinions issued by the Service. The Audubon Society is the lead entity for management of the Kern River Preserve, an area adjacent to the Sprague Ranch. Management actions required for the Sprague Ranch include: Demographic surveys, cowbird trapping, nonnative vegetation removal, livestock exclusion, hydrologic improvement, planting of native vegetation, noxious weed control activities, flood irrigating low-lying areas, upgrading of fencing, upgrading irrigation systems, monitoring, and reporting. These measures will assist in improvement, management, and conservation of western yellow-billed cuckoo habitat in perpetuity and meet our criteria for exclusion.
As discussed above under Effects of Critical Habitat Designation Section 7 Consultation, Federal agencies, in consultation with the Service, must ensure that their actions are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of any designated critical habitat of such species. The difference in the outcomes of the jeopardy analysis and the adverse modification analysis represents the regulatory benefit and costs of critical habitat. A critical habitat designation requires Federal agencies to consult on whether their activity would destroy or adversely modify critical habitat to the point where recovery could not be achieved. The South Fork Kern River Valley is occupied by western yellow-billed cuckoos during the breeding season and the area and its habitat are well known to be important to the western yellow-billed cuckoo and therefore, if a Federal action or permitting occurs, there is a catalyst for evaluation under section 7 of the Act (mostly due to listing the species as threatened). Through section 7 consultation, some minimal benefit could occur from a critical habitat designation at the Sprague Ranch. The Sprague Ranch may have additional conservation value above sustaining
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also affect the implementation of Federal laws, such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
There would be little additional educational and informational benefit gained from including this portion of the Sprague Ranch within the designation because the Sprague Ranch was purchased specifically for habitat conservation and is well known as an important area for western yellow-billed cuckoo management and recovery. Also, managing agencies such as the Corps, CDFW, and Audubon Society are implementing a long-term management plan that addresses western yellow-billed cuckoo habitat; therefore the educational benefits educational benefits arising from critical habitat designation are likely to be minimal.
A considerable benefit from excluding Sprague Ranch from western yellow-billed cuckoo critical habitat is the maintenance and strengthening of ongoing conservation partnerships. Based on past and current efforts to conserve habitat within the South Fork of the Kern River including the Sprague Ranch, we have determined that the conservation benefits that would be realized by foregoing designation of critical habitat for the western yellow-billed cuckoo would be significant by encouraging future conservation cooperation from non-Federal landowners in the area. Actions specifically identified on the Sprague Ranch as part of the Audubon Kern River Preserve for conservation includes protection and maintenance of riparian and upland habitat for breeding feeding and sheltering, active nonnative species management, livestock exclusion, exotic vegetation control, native tree planting, and species monitoring and reporting. These actions will be implemented through the long-term management plan developed by the Corps, CDFW and the Audubon Society, who are all committed to working toward species recovery. The Audubon Society is taking the lead in management of the Kern River Preserve, and its management of this area could be constrained and complicated by a checker boarded critical habitat designation that would apply to certain lands under Audubon management but not all. Accordingly, exclusion would benefit our collaboration with Audubon in support of species recovery.
The western yellow-billed cuckoo occurs on both public and private lands throughout the Unit, but the Sprague Ranch is somewhat unique in that it is a partnership between the Corps, CDFW, Audubon, and the Service. The management of Sprague Ranch is conducted in accordance with the terms and conditions of a biological opinion, which requires actions for the conservation of western yellow-billed cuckoo habitats. These actions would still occur regardless of whether critical habitat is designated, but the managing entity (Audubon) may be discouraged from implementing voluntary beneficial actions because of the additional requirements of the designation.
Proactive conservation efforts and partnerships with private or non-Federal entities are necessary to prevent the extinction and promote the recovery of the western yellow-billed cuckoo in the Unit. Therefore, western yellow-billed cuckoo habitat located within properties covered by management plans or conservation strategies that protect or enhance its habitat will benefit substantially from voluntary landowner management actions.
We contend that where consistent with the discretion provided by the Act, it is beneficial to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove
Based on the above considerations, we have determined that the benefits of excluding the Sprague Ranch from critical habitat in the Unit 64 outweigh the benefits of including it as critical habitat for the western yellow-billed cuckoo.
The Sprague Ranch was purchased specifically to manage habitats for the western yellow-billed cuckoo and is jointly managed by the Corps, CDFW, and Audubon in accordance with the terms and conditions of the biological opinions. The strategy of the managing partnership is to implement management and habitat improvement measures to achieve western yellow-billed cuckoo conservation goals. There are few additional educational or regulatory benefits of including these lands as critical habitat. The South Fork Kern River as part of the Audubon Society's Kern River Preserve is well known by the public and managing agencies for its value and importance to the western yellow-billed cuckoo. Likewise, there will be little additional Federal regulatory benefit to the species because (a) there is a low likelihood that the Sprague Ranch will be negatively affected to any significant degree by Federal activities that were not consulted on in the existing biological opinions pursuant to section 7 consultation requirements, and (b) the Sprague Ranch is being managed in accordance with the terms and conditions of the biological opinions. Based on ongoing management
The conservation measures for the western yellow-billed cuckoo that are occurring or will be used in the future on the Sprague Ranch (
Therefore, we find that the exclusion of critical habitat on the Sprague Ranch would most likely have a net positive conservation effect on the recovery and conservation of the western yellow-billed cuckoo when compared to the positive conservation effects of a critical habitat designation. As described above, the overall benefits to the western yellow-billed cuckoo of a critical habitat designation for this property are relatively few. In contrast, this exclusion will enhance our existing partnership with the Corps, CDFW, and Audubon, and it will set a positive example and could provide positive incentives to other non-Federal landowners who may be considering implementing voluntary conservation activities on their lands. We conclude there is a higher likelihood of beneficial conservation activities occurring in this area for the western yellow-billed cuckoo without designated critical habitat than there would be with designated critical habitat on the Sprague Ranch.
We find that the exclusion of these lands will not lead to the extinction of the western yellow-billed cuckoo, nor hinder its recovery because long-term land management commitments will ensure the long-term persistence and protection of western yellow-billed cuckoo habitat on the Sprague Ranch. Exclusion of these lands will not result in the extinction of the species because there is a long-term commitment by proven land management partners to manage this property specifically for the western yellow-billed cuckoo. In addition, as discussed above under Effects of Critical Habitat Designation
Hafenfeld Ranch is approximately 247 ac (100 ha) in size and lies on and adjacent to the South Fork Kern River. Within the larger ranch are two perpetual conservation easements that were placed for the purposes of riparian and wetland vegetation protection and western yellow-billed cuckoo conservation. The landowner granted these easements willingly and in partnership with Department of Agriculture-Natural Resource Conservation Service (NRCS), the Service, Corps, and California Rangeland Trust (CRT). Approximately 127 ac (51 ha) of the Hafenfeld Ranch was proposed for designation of western yellow-billed cuckoo critical habitat within Unit 64 (CA-2, South Fork Kern River Valley).
The Hafenfeld Ranch is part of a continuous corridor of western yellow-billed cuckoo habitat along the South Fork Kern River that connects the east and west segments of the Kern River Preserve. The dominant vegetation in the Kern Management Unit is willow and cottonwood (
The first conservation easement of approximately 38 ha (93 ac) was recorded in 1996, between the landowner and the NRCS under authority of the Wetland Reserve Program. The purpose of the easement is to “. . . restore, protect, manage, maintain, and enhance the functional values of wetlands and other lands, and for the conservation of natural values including fish and wildlife habitat, water quality improvement, flood water retention, groundwater recharge, open space, aesthetic values, and environmental education. It is the intent of NRCS to give the Landowner the opportunity to participate in restoration and management activities in the easement area.”
The second conservation easement of approximately 57 ha (140 ac) was recorded in 2007, between the landowner and CRT as a result of biological opinions for the long-term operation of Lake Isabella Dam and Reservoir (Service 1996, 2005b) specifically to provide habitat and conservation for the western yellow-billed cuckoo. The purposes of the easement includes: (1) Protection of the riparian area; (2) continuation of flows into the riparian area; and (3) protection of riparian habitat. An endowment to implement these purposes was granted by the Corps to the National Fish and Wildlife Foundation to be used by CRT.
The Hafenfeld conservation easements are managed pursuant to a conservation plan dated January 25, 2005. This plan was prepared in partnership with the Service, National Fish and Wildlife Foundation (NFWF), CDFW, Wildlife Conservation Board (WCB), the Packard Foundation, and Audubon to provide consistent management of lands acquired in Unit 64. Management activities under the plan that will protect, maintain, and improve western yellow-billed cuckoo habitat include: (1) Limiting public access to the site, (2) managing grazing, (3) protection of the site from development or encroachment, (4) maintenance of the site as permanent open space that has been left predominantly in its natural vegetative state, and (5) the spreading of flood waters which promotes the moisture regime and wetland and riparian vegetation determined to be essential for western yellow-billed cuckoo conservation. Other prohibitions of the easements which would benefit western yellow-billed cuckoo conservation include: (1) Haying, mowing or seed harvesting; (2) altering the grassland, woodland, wildlife habitat, or other
As discussed above under Effects of Critical Habitat Designation
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also affect the implementation of Federal laws, such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process.
There would be little educational and informational benefit gained from including this portion of the South Fork Kern River within the designation because the Hafenfeld Ranch-established conservation easements that addressed the western yellow-billed cuckoo and its habitat, and therefore it is well known as an important area for western yellow-billed cuckoo management and recovery. Also, managing agencies such as the Corps, NRCS, Service, CRT, and CDFW were involved with establishing these easements and development of a long-term management plan that addresses western yellow-billed cuckoo habitat; therefore the educational benefits or additional support for implementing other environment regulations from a critical habitat designation are not expected to be realized in this area.
Conservation benefits which are and would be realized by foregoing designation of critical habitat for the western yellow-billed cuckoo at the Hafenfeld Ranch include: (1) Continuance and strengthening of our effective working relationship with the Hafenfeld Ranch and the Corps, CRT, and CDFW to promote voluntary, proactive conservation of the western yellow-billed cuckoo and its habitat as opposed to reactive regulation; (2) allowance for continued meaningful collaboration and cooperation in working toward species recovery, including conservation benefits that might not otherwise occur; and (3) encouragement of additional conservation easements and other conservation and management plan development in the future on the Hafenfeld Ranch and other lands for the western yellow-billed cuckoo and other federally listed and sensitive species.
The western yellow-billed cuckoo occurs on public and private lands throughout Unit 64. Proactive voluntary conservation efforts by private or non-Federal entities are necessary to prevent declines and promote the recovery of the western yellow-billed cuckoo in Unit 64.
Therefore, western yellow-billed cuckoo habitat located within private properties, like the Hafenfeld Ranch, covered by management plans or conservation strategies that protect or enhance its habitat will benefit substantially from voluntary landowner management actions. Where consistent with the discretion provided by the Act, it is beneficial to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove
Based on the above considerations, we have determined that the benefits of excluding the Hafenfeld Ranch from critical habitat in Unit 64 outweigh the benefits of including it as critical habitat for the western yellow-billed cuckoo. The Hafenfeld Ranch is currently operating under a conservation plan to implement conservation measures and achieve important conservation goals
The additional regulatory and educational benefits of including these lands as critical habitat are relatively few. Based on past and current conservation actions and continued stewardship of their lands by the landowner, we anticipate that the conservation strategies will continue to be implemented in the future, and that the funding for these activities will be apportioned in accordance with the existing management plan.
Past, present, and future coordination with the landowner has provided and will continue to provide sufficient education regarding western yellow-billed cuckoo habitat conservation needs on these lands, such that there would be minimal additional educational benefit from designation of critical habitat. Likewise, there will be little additional Federal regulatory benefit to the species because (a) there is a low likelihood that the Hafenfeld Parcel will be negatively affected to any significant degree by Federal activities requiring section 7 consultation, and (b) based on ongoing management activities, there would likely be no additional requirements pursuant to a consultation that addresses critical habitat. Excluding these privately owned lands with conservation strategies from critical habitat may, by way of example, provide positive social, legal, and economic incentives to other non-Federal landowners who own lands that could contribute to listed species recovery if voluntary conservation measures on these lands are implemented.
The conservation measures for the western yellow-billed cuckoo on the Hafenfeld Ranch that include the activities described above that include land and water management actions to enhance important riparian and wetland habitat provide as much, and likely more comprehensive benefits as would be achieved through implementing section 7 consultation on a project-by-project basis under a critical habitat designation. This is because the land managers are already implementing actions that improve and maintain western yellow-billed cuckoo habitat. The actions already being implemented by the landowner serve to manage and protect habitat needed for western yellow-billed cuckoo above those conservation measures which may be required if the area was designated as critical habitat. In making this finding, we have weighed the benefits of exclusion against the benefits of including these lands as critical habitat.
Therefore, we find that the exclusion of critical habitat on the Hafenfeld Parcel would most likely have a net positive conservation effect on the recovery and conservation of the western yellow-billed cuckoo when compared to designating the area as critical habitat. As described above, the overall benefits to the western yellow-billed cuckoo from a critical habitat designation on the Hafenfeld Ranch are relatively low.
Exclusion of these lands will not result in the extinction of the subspecies because the western yellow-billed cuckoo occupies the Hafenfeld Ranch and the area is being managed for western yellow-billed cuckoo conservation. The management on Hafenfeld Ranch is a long-term conservation commitment by the landowner to benefit habitat for the western yellow-billed cuckoo. As discussed above under Effects of Critical Habitat Designation
In the revised proposed rule, we indicated that 417 ac (169 ha) of state-owned lands in Unit 68 (CO-1) along the Colorado River were being considered for exclusion because State of Colorado Parks and Wildlife (CPW) manages them to benefit wildlife, including the western yellow-billed cuckoo. Based on CPW comments and parcel information provided by CPW, we adjusted the acreage considered for exclusion to 866 ac (351 ha). The areas we consider below for exclusion are the multi-parcel James M. Robb Colorado River State Park (273 ac (110 ha)), the Leatha Jean Stassen State Wildlife Area (24 ac (10 ha)), the Tilman Bishop State Wildlife Area (107 ac (43 ha)), and the Walter Walker State Wildlife Area (462 ac (187 ha)).
There are four parcels of the James M. Robb Colorado River State Park (CRSP) within critical habitat Unit 68. The Corn Lake section, 6 ac (2 ha), the Connected Lakes section, 162 ac (66 ha), the Pear Park section 105 ac (42 ha), and the 34 Road section that is 0.26 ac (0.1 ha). The management of the Colorado State Parks is outlined in Colorado Parks & Wildlife Strategic Plan (CPW 2005, entire). The primary goals of the CRSP are to preserve native communities, reduce noxious weeds, maintain desirable shade trees in picnic areas, use a native revegetation management prescription, augment nesting structures for wildlife, improve aquatic resources, implement a comprehensive natural resources monitoring program, and develop and maintain sustainable trails. Western yellow-billed cuckoo detections have been documented at the Connected Lakes Section in 2002 and at the Corn Lake section in 1998 (Beason 2012, p 14). Colorado State Parks manages all parcels under a 2002 stewardship plan that prescribes a stewardship prescription for cottonwood and willow management and noxious weeds management (Colorado State Parks 2002, entire).
The Leatha Jean Stassen, Tilman Bishop, and Walter Walker State Wildlife Areas (SWAs) are all protected in perpetuity (owned in fee by CPW) and managed under terms stipulated by the Federal Aid in Wildlife Restoration Act of 1937 (Pittman-Robertson) and Federal Aid in Sport Fish Restoration Act of 1950 (Dingell-Johnson), which prohibit the diversion of CPW assets or any funds generated from license sales to non-wildlife programs or practices. There are no official management plans for the SWAs, yet all management actions (through annual work plans) are directed to benefit wildlife and native habitat.
The primary management objective for the Leatha Jean Stassen SWA is to provide quality wildlife habitat. Key activities in pursuit of this objective include removal of purple loosestrife (
The Walter Walker SWA is adjacent to the Leatha Jean Stassen SWA on the
The Tilman Bishop SWA is on the eastern end of critical habitat Unit 68. The primary management objectives for the Tilman Bishop SWA are to restore natural riparian vegetation and to enhance habitat values for rare and sensitive species, non-game wildlife, and waterfowl. Key activities in pursuit of these objectives include removal of tamarisk and other nonnative woody riparian plants and conduct plantings of cottonwood and willow. Otherwise, the management efforts are focused on developing additional and enhancing existing riparian vegetation on the property. Actions that implemented annually in this SWA that benefit western yellow-billed cuckoo include treating nonnative plants such as Russian olive and tamarisk, a public access closure period from March 15 through July 15, and mapping of noxious weeds.
The benefits of including lands in critical habitat can be regulatory and educational, which can aid in promoting recovery of the species. As discussed above under Effects of Critical Habitat Designation
The most likely Federal nexus for these lands would be associated with Federal funding through Partners for Fish and Wildlife, the Service, or NRCS for habitat restoration projects, or permitting from the Corps if work involves placing fill in riparian or wetland areas. Potential outcomes of section 7 consultations (mostly due to the species being listed as threatened) would be conservation recommendations to avoid disturbance during breeding and nonbreeding periods, avoid degradation or destruction of cottonwood stands and their understory, and avoid spraying pesticides that could reduce insect prey bases for western yellow-billed cuckoo. However, most of these recommendations have been identified and implemented in CPW's management direction to benefit wildlife and their habitat in the CRSP and SWAs, in the absence of critical habitat designation. Therefore, conservation recommendations resulting from any section 7 consultation with respect to critical habitat would most likely be redundant with the conservation actions already in place under current management. Thus, few additional regulatory benefits would be derived from including the CRSP and SWAs in critical habitat Unit 68 for western yellow-billed cuckoo.
Another important benefit of including lands in a critical habitat designation is that it can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation, birding, hunting, livestock grazing, recreation, and sportfishing activities, is valuable. The designation of critical habitat may also affect the implementation of Federal laws, such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Designation of critical habitat could inform those who either live locally or use the area for recreation about listed species and their habitat needs. However, we believe there is little, if any, educational benefit attributable to critical habitat beyond those achieved from listing the species under the Act. Therefore in this case, we view the regulatory benefit to be largely redundant with the benefit the species will receives from listing under the Act and may only result in minimal additional benefits.
We have determined that the benefits of exclusion of CPW lands outweighs the benefits of inclusion because the CPW is currently managing and is committed to maintaining and enhancing aquatic and riparian habitats to benefit wildlife and to restore, manage, and enhance habitat. The designation of SWA and State Park with prescriptions for cottonwood and willow management that promotes a healthy cottonwood overstory with grass and shrub understory components, sustainable public access, and control of noxious weeds demonstrate CPW's commitment to prudent stewardship of their land and water resources for the benefit of wildlife, including western yellow-billed cuckoo. Due to the legal mandates (Pittman-Robertson and Dingell-Johnson) to manage the SWAs for the benefit of wildlife and the 2002 Stewardship Plan for the CRSP, we conclude that it is unlikely that any proposed actions would adversely affect or adversely modify critical habitat for the western yellow-billed cuckoo. Rather, we can reasonably expect these parcels to be protected from future development and adaptively managed into the future to avoid and minimize threats to the natural habitat included cottonwood galleries and willow understories. Therefore, excluding these areas from critical habitat could benefit the existing partnership with CPW.
Due to the consistent management of the CRSP and SWAs for the benefit of wildlife, including cottonwood and willow management and direction that would not change greatly through section 7 consultation, it is unlikely that designating these areas as critical habitat would appreciably increase recommended conservation measures. In response to the proposed designation of critical habitat, CPW said that designation of critical habitat should also consider the existing conservation programs available to private landowners and that the designation of critical habitat on private lands may discourage landowners from pursuing voluntary conservation actions. By excluding these areas we can foster more cooperation from adjacent private landowners.
We have determined that the benefits of excluding the CRSP, Walter Walker SWA, Tilman Bishop SWA, and Leatha Jean Stassen SWA as critical habitat for western yellow-billed cuckoo, outweigh the benefits of including them as critical habitat. This conclusion is based on the following factors: (1) The CRSP has a complete stewardship plan that provides guidance and direction for annual activities and land management that promote and preserve native riparian vegetation. Due to designation as a State Park, it is likely that the conservation management strategies and actions will continue to be implemented for the foreseeable future. In addition to the goals and objectives set out in the stewardship plan for the CRSP, there is also a specific cottonwood and willow stewardship prescription that guides management actions to reduce nonnative invasive plants and restore natural hydrology and regeneration processes within the riparian ecosystem. Although the SWAs do not have completed management plans, the annual work plans, cottonwood and willow prescription, and wildlife management mandate under the Pittman-Robertson and Dingell-Johnson Acts indicate sufficient management protections for the physical and biological features needed for western yellow-billed cuckoo; and (2) Excluding these areas from critical habitat will help maintain and improve our partnership with CPW. CPW commented that the designation of critical habitat in Unit 68 as proposed (85 FR 11458) would likely have a negative impact on ongoing and future voluntary conservation efforts by CPW and adjacent private landowners. Designating these areas over the objections of CPW could create a disincentive to future partnering with the Service to achieve conservation goals, who desire to avoid possible Federal regulation under the Act. Given our desire for cooperative partnerships and the wildlife habitat protections enacted by the State of Colorado on these areas, there is a reasonable expectation that the conservation management strategies and actions will continue to be implemented into the future.
Although a critical habitat designation would require actions with a Federal nexus to consult on adverse modification, activities conducted by CPW may not have a Federal nexus and CPW's management already benefits wildlife and their habitat in the CRSP and SWAs, in the absence of critical habitat designation. Therefore, conservation recommendations resulting from any section 7 consultation with respect to critical habitat would most likely be redundant with the conservation actions already in place under current management and few additional regulatory benefits would be derived from including the CRSP and SWAs in critical habitat for the western yellow-billed cuckoo.
Lastly, these areas are well known as important areas for the western yellow-billed cuckoo and past, present, and future coordination with CPW has provided and will continue to provide sufficient educational benefits regarding conservation of western yellow-billed cuckoo habitat on these lands, such that there would be minimal additional educational benefit from designation of critical habitat beyond those achieved from listing the species under the Act, and CPW's continued work in conserving the species.
We have determined that the exclusion of the CRSP and SWAs lands from Unit 68 will not result in the extinction of the western yellow-billed cuckoo. CPW's mandate to manage SWAs for the benefit of wildlife and stewardship plan for the CRSP ensure continued management actions that benefit western yellow-billed cuckoo and their habitat. As discussed above under Effects of Critical Habitat Designation
We identified approximately 1,142 ac (462 ha) in Unit 33 for exclusion from the final critical habitat based on habitat management by U-Bar Ranch. The U-Bar Ranch (Ranch) near Cliff, in Grant County, New Mexico, in the Upper Gila Management Area is owned by Pacific Western Land Company (PWLC), a subsidiary of the FMC. Through their efforts and their long-time lessee, FMC has demonstrated a commitment to management practices on the Ranch that have conserved and benefited the western yellow-billed cuckoo population in that area over the past decade. In addition, FMC had privately funded scientific research at and in the vicinity of the Ranch in order to develop data that have contributed to the understanding of habitat selection, distribution, prey base, and threats to the southwestern willow flycatcher. The riparian habitat also has a large number of nesting western yellow-billed cuckoos.
PWLC and the U-Bar Ranch have supported collecting annual breeding bird population data for over 20 years, where western yellow-billed cuckoo detections have displayed a significant increase since 1997. The Ranch began formally surveying for western yellow-billed cuckoos on an annual basis beginning in 2014, where results of these surveys and the past breeding bird studies indicate that the western yellow-billed cuckoo is a common summer resident.
The Ranch implements a management plan (FMC 2012, entire) on its pastures within the Gila Valley that are north of the Highway 180 West Bridge and south of the boundary of the Gila National Forest. Eight pastures that incorporate approximately 3,390 ac (1,372 ha) are managed with a plan that is adapted annually for operation of livestock and farming enterprises. The management consists of a multifaceted and highly flexible rest-rotation system using both native forage and irrigated fields. The Ranch's numerous pastures allow a relatively dynamic rotation system that is modified based upon current conditions. Grazing use of river bottom pastures is monitored by daily visual inspections. Use of these pastures is limited to ensure that forage utilization levels are moderate and over-use does not occur. In addition, the riparian areas are monitored regularly, and riparian vegetation is allowed to propagate along the river as well as in irrigation ditches.
Some specific management practices, varying in different pastures, which relate to the western yellow-billed
As an example of long standing successful restoration practices, in 1995, active restoration followed the flooding destruction of the Bennett Farm fields in the 162 ha (400 ac) River Pasture. The Bennett Restoration Project is a series of artificially created, flooded marshy areas located between irrigated and dry-land pastures and the river. The Bennett Restoration Project is a mosaic of vegetation in successional stages with dense patches and lines of willows and cottonwoods occurring in manmade oxbows. The site now consistently supports western yellow-billed cuckoos. The 2016 surveys recorded up to 7 detections of western yellow-billed cuckoos at the Bennett site.
As discussed above under Effects of Critical Habitat Designation Section 7 Consultation, Federal agencies, in consultation with the Service, must ensure that their actions are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of any designated critical habitat of such species. The difference in the outcomes of the jeopardy analysis and the adverse modification analysis represents the regulatory benefit and costs of critical habitat. A critical habitat designation requires Federal agencies to consult on whether their activity would destroy or adversely modify critical habitat to the point where recovery could not be achieved. As this is private property and consultation will be rare, critical habitat is not anticipated to have much effect due to lack of Federal actions. Given the anticipated lack of section 7 consultation, the dependence on private conservation actions is more important.
Another important benefit of including lands in a critical habitat designation is that it can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable. However, the U-Bar Ranch is already working with the Service to address the conservation and recovery of the species. For these reasons, designation of critical habitat would have few, if any, additional benefits beyond those that will result from continued consultation for the presence of the species.
Significant benefits would be realized by excluding the Ranch that include: (1) The continuance and strengthening of our effective cooperative relationship with the Ranch to promote the conservation of the western yellow-billed cuckoo and its habitat; (2) the allowance for continued meaningful collaboration and cooperation in surveys and research as we work towards recovery of the species; and (3) the provision of conservation benefits to the Gila River ecosystem and the western yellow-billed cuckoo and its habitat that might not otherwise occur. As mentioned above, the Ranch is an important land manager in the Upper Gila River area. The surveys, conservation, restoration and management information submitted to the Service by the Ranch document that meaningful collaborative and cooperative work for the western yellow-billed cuckoo and its habitat will continue on their land. The Ranch has committed to several ongoing or future management, restoration, enhancement, and survey activities. The results of these activities promote long term protection and conserve the western yellow-billed cuckoo and its habitat on the Ranch.
Because so many important areas with western yellow-billed cuckoo habitat occur on private lands, collaborative relationships with private landowners are important in recovering the species. The western yellow-billed cuckoo and its habitat are expected to benefit substantially from voluntary landowner management actions that implement appropriate and effective conservation strategies. Where consistent with the discretion provided by the Act, it is beneficial to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation (Wilcove
The benefits of excluding this area from critical habitat will encourage the continued conservation, land management, and coordination with the Service. If this area is designated as critical habitat, we may jeopardize future conservation, research, and information sharing for the recovery of the western yellow-billed cuckoo.
We have determined that the benefits of exclusion of U-Bar Ranch, with the implementation of their management plan, outweighs the benefits of inclusion, because the Ranch is currently managing western yellow-billed cuckoo and southwestern willow flycatcher breeding sites successfully and is committed to maintaining and enhancing habitats to benefit wildlife. The benefits of including the Ranch in critical habitat are few, and are limited to educational benefits since these lands are privately owned and thus one trigger for section 7 consultation for adverse modification is lacking. The benefits of excluding this area from designation as critical habitat for the western yellow-billed cuckoo are significant, and include encouraging the continuation of adaptive management measures such as monitoring, surveys, research, enhancement, and restoration activities that the Ranch currently implements and plans for the future. The exclusion of this area will likely also provide additional benefits to the species by encouraging and maintaining a cooperative working relationship with the Ranch.
Through their and their long-time lessee's efforts, FMC has demonstrated a commitment to management practices on the Ranch that have conserved and benefited the western yellow-billed cuckoo population in that area over the past decade. In addition, FMC had privately funded scientific research at and in the vicinity of the Ranch in order to develop data that has contributed to the understanding of habitat selection and distribution of the western yellow-billed cuckoo. Considering the past and
We have determined that exclusion of areas of the Ranch will not result in extinction of the species, nor hinder its recovery because FMC management will ensure the long-term persistence and protection of western yellow-billed cuckoo habitat at the Ranch and because the Ranch is committed to greater conservation measures on their land than would be available through the designation of critical habitat. In addition, as discussed above under Effects of Critical Habitat Designation
In the revised proposed rule we identified the entire 608 ac (246 ha) of private land for exclusion in Unit 40 (NM-9) along Las Animas Creek owned by the Turner Ranch Properties. The Ladder Ranch (Ranch) is located near Truth or Consequences in Sierra County, New Mexico. The Nature Conservancy is a Conservation Guardian of the Turner Conservation Trust (which includes the Ladder Ranch). The Turner Conservation Trust has a goal of demonstrating how private lands can be innovatively managed to allow conservation and commerce to co-exist to sustain the natural diversity of the landscape. The Ranch has committed to management, protections of habitat, water availability, and survey activities according to the Trust Agreement with the Nature Conservancy and has demonstrated a commitment to conservation of the western yellow-billed cuckoo by completing formal presence/absence surveys for the species in 2016 and the management techniques described below. From the 2016 baseline study as well as from incidental observations, the riparian habitat provides refuge to western yellow-billed cuckoos suspected of nesting on the property.
The Ranch is managed as a working landscape, supporting bison ranching, commercial and recreational hunting, ecotourism, conservation and restoration projects, and scientific research. While these activities have been ongoing, listed or sensitive species such as the western yellow-billed cuckoo, the Chiricahua leopard frog (
As discussed above under Effects of Critical Habitat Designation
Another possible benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable. However, the Ranch is already working with the Service and The Nature Conservancy to address the conservation and recovery of the species.
Based on this history of conservation and management practices, we have determined that designation of critical habitat would have few, if any, additional benefits beyond those that would result from the species being listed as threatened.
We have determined that significant benefits would be realized by excluding the Ranch that include: (1) The continuance and strengthening of our cooperative relationship with the Ranch to promote the conservation of the western yellow-billed cuckoo and its habitat; (2) the allowance for continued meaningful collaboration and cooperation in surveys and research as we work towards recovery of the species; and (3) the provision of conservation benefits to the Las Animas Creek ecosystem and the western yellow-billed cuckoo and its habitat that might not otherwise occur. The Ranch is an important land manager in the Las Animas Creek, a tributary to the Rio Grande. The surveys, conservation, restoration and management information submitted by the Ranch document that meaningful collaborative and cooperative work for the western yellow-billed cuckoo and other listed or sensitive species and their habitat will continue on their land. Through their Trust Agreement with The Nature Conservancy, the Ranch has committed to future management, protections of
We have determined that the benefits of exclusion of Ladder Ranch, with the implementation of actions for conservation of western yellow-billed cuckoo habitat, outweighs the benefits of inclusion. The benefits of including the Ranch in critical habitat are low, and are limited to educational benefits since these lands are privately owned and the trigger for section 7 consultation for adverse modification of habitat due to critical habitat is lacking. Past, present, and future coordination with the landowner has provided and will continue to provide sufficient educational benefits regarding western yellow-billed cuckoo habitat and conservation needs on these lands, such that there would be minimal additional educational benefit from designation of critical habitat. The benefits of excluding this area from designation as critical habitat for the western yellow-billed cuckoo are significant, and include encouraging the continuation of adaptive management measures such as monitoring, surveys, research, enhancement, and habitat protection that the Ranch currently implements and plans for the future. The exclusion of this area will likely also provide additional benefits to the species by encouraging and maintaining a cooperative working relationship with the Ranch. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area.
We have determined that exclusion of areas of the Ranch will not result in extinction of the species, nor hinder its recovery because management by The Nature Conservancy and Turner Ranch Properties will ensure the long-term persistence and protection of western yellow-billed cuckoo habitat at the Ranch, and because the Ranch is committed to greater conservation measures on their land than would be available through the designation of critical habitat. In addition, as discussed above under Effects of Critical Habitat Designation
In New Mexico, along the lower Rio Grande south of Caballo Reservoir, the Elephant Butte Irrigation District (EBID) and the El Paso County Water Improvement District No. 1 (EPWD) manages the water from the Rio Grande in Elephant Butte Reservoir for agricultural use, and the International Boundary and Water Commission (IBWC) (a Federal Agency) is responsible for maintaining levees and channel irrigation facilities, and floodway management. The entire approximately 237 ac (96 ha) of Selden Canyon and Radium Springs Unit 41 has been identified for exclusion from critical habitat. Together, the EBID, EPWD, and IBWC have planned and implemented a large-scale riparian habitat improvement project along the lower Rio Grande from Percha Dam to American Dam (termed the lower Rio Grande Elephant Butte Irrigation District Canalization and Conservation Project).
The lower Rio Grande south of Caballo Reservoir is managed by the IBWC, whose mission is to provide bi-national solutions to issues that arise during the application of United States—Mexico treaties regarding boundary demarcation, national ownership of waters, sanitation, water quality, and flood control in the border region. Water deliveries to downstream water users for irrigation and other purposes are managed by EBID which operates, maintains, and owns the irrigation distribution system. This irrigation distribution system was constructed by Reclamation and includes canals, laterals, drains, waste-ways, and maintenance roads on both riverbanks, and structures. State statutes provide for the equitable distribution of water from the Elephant Butte Reservoir to all of its water users and generally govern how EBID operates and manages the water it provides to its users.
Prior to the listing of the western yellow-billed cuckoo, IBWC's management of the lower Rio Grande emphasized canalization to facilitate efficient water deliveries and flood control. As a result, the channel narrowed and degraded, with limited areas for overbank flooding to support expansive native riparian communities. The vast majority of floodplains, which would have formerly supported native riparian vegetation, including some western yellow-billed cuckoo habitat, are now subject to substantial human impacts by agriculture, urbanization, recreation, vegetation encroachment and management, grazing, fire, and other stressors. IBWC has worked for ten years to develop habitat restoration areas under a 2009 Record of Decision. From 2009 to 2019, IBWC planted approximately 123,000 trees and shrubs on more than 500 ac (202 ha) of restoration sites, with about 100 ac (40 ha) targeting the creation of native canopy woodland habitat that will eventually be beneficial to the western yellow-billed cuckoo and developed a River Management Plan in 2014 (IBWC 2014, entire). Additionally, the practice of mowing willow trees has been ceased, which has already added to the distribution and abundance of riparian vegetation. Plus, western yellow-billed cuckoo surveys have and will continue to occur, as will vegetation monitoring.
In 2016, IBWC updated their River Management Plan to incorporate the western yellow-billed cuckoo (IBWC 2016, entire) and includes conservation measures such as avoidance areas around western yellow-billed cuckoo observations, formal surveys to be completed on an annual basis, and restoration features to target western yellow-billed cuckoo habitat suitability. Measures to protect the western yellow-billed cuckoo as well as habitat restoration sites targeting potential cuckoo habitat are included in the updated River Management Plan. The goal is to provide western yellow-billed cuckoo habitat in the lower Rio Grande, while still delivering water, as required by IBWC and EBID. The concerted effort by multiple agencies and groups to improve habitat in this reach of the Rio Grande has already provided habitat benefits to the southwestern willow flycatcher and are expected to provide benefit to the western yellow-billed cuckoo as well. EBID and EPWD have voluntarily worked with NFWF to develop a water transaction program that will allow IBWC and other partners to purchase or lease water that can be used to flood riparian habitat similar to
As discussed above under Effects of Critical Habitat Designation
There may be some benefits from the designation of critical habitat along the lower Rio Grande, primarily because it would require Federal agencies to perform additional review of their project implementation. While this area was not previously designated as western yellow-billed cuckoo critical habitat, the IBWC has already undergone section 7 consultation due to the occurrence of southwestern willow flycatchers and western yellow-billed cuckoos along the lower Rio Grande. With the implementation of the western yellow-billed cuckoo conservation actions included in the Canalization and Conservation Project, which are expected to avoid the species in construction activities and result in more breeding habitat and territories, we provided concurrence to IBWC's determination that their actions would not likely to adversely affect the western yellow-billed cuckoo (Service 2017, pp. 1-2). Any future Federal projects implemented by other agencies with responsibilities along the lower Rio Grande, such as Federal Highway Administration, or from the BLM on surrounding lands, would require evaluation under section 7 of the Act. However, because western yellow-billed cuckoos occur along the lower Rio Grande during the breeding season, exhibit a certain amount of site fidelity and their habitat is protected due to the long-term and extensive western yellow-billed cuckoo habitat conservation benefits resulting from the EBID's Canalization and Conservation Project, the incremental benefits of designating critical habitat at Selden Canyon and Radium Springs are minimized.
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also inform implementation of other Federal laws, such as NEPA or the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
We have determined that there would be little, if any educational and informational benefit gained from including the lower Rio Grande within the designation because this area is well known as an important area for western yellow-billed cuckoo management and recovery. For example, Federal agencies and stakeholders integral to water and land management along the lower Rio Grande are involved in conducting western yellow-billed cuckoo surveys, initiated section 7 consultation, and have planned and are implementing western yellow-billed cuckoo conservation actions. Consequently, we have determined that the informational benefits and support for implementing other environment regulations have already occurred through past actions even in the absence of critical habitat.
The benefits of excluding the lower Rio Grande at Selden Canyon and Radium Springs from designated critical habitat include: (1) Continued and strengthened effective working relationships with IBWC, EBID, Audubon, and other stakeholders and partners; (2) meaningful collaboration toward western yellow-billed cuckoo recovery, including; (3) the development of a water transaction program that provides irrigation water to restoration sites that might not otherwise occur and that are expected to provide benefit to western yellow-billed cuckoos. EBID and constituents are concerned of the impacts of a critical habitat designation on their abilities to manage their water rights, as stated in their comments on the revised proposed rule (see Summary of Comments and Recommendations). Through fostering a cooperative working relationship with EBID, IBWC and others conducting surveys and habitat monitoring, and undertaking habitat restoration and enhancement projects are realizing western yellow-billed cuckoo conservation benefits. Without EBID's support in carrying out these restoration efforts and implementing the water transaction program, significant conservation benefits to the western yellow-billed cuckoo could be lost. For these reasons, we have determined that fostering our working relationship with EBID and their constituents is important to maintain western yellow-billed cuckoo conservation benefits.
Proactive voluntary conservation efforts have and will continue to be important to achieve western yellow-billed cuckoo recovery. As the water manager for the lower Rio Grande, EBID's willingness to participate and coordinate the water transaction program is crucial to creating successful western yellow-billed cuckoo restoration sites. Their agreement to work with IBWC, NFWF, and others demonstrates that meaningful, collaborative, and cooperative work for the western yellow-billed cuckoo and its habitat will continue within their jurisdiction. Therefore, we have determined that the results of these voluntary restoration activities will promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within the lower Rio Grande. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of the water transaction program which will allow IBWC to provide water to the habitat restoration sites.
Excluding the lower Rio Grande from the critical habitat designation that are within the jurisdiction of IBWC will provide significant benefits to the western yellow-billed cuckoo through sustaining and enhancing the working relationship between the Service, IBWC, EBID, and other stakeholders. The willingness of IBWC and EBID to work with the Service on innovative ways to manage and develop western yellow-billed cuckoo habitat will reinforce our partnership that is important in order to achieve western yellow-billed cuckoo recovery. We can often achieve greater conservation through voluntary actions than through implementing a critical habitat regulation on a project-by-project basis.
By excluding the Rio Grande south of Caballo Dam in New Mexico from critical habitat designation, we are also encouraging new partnerships with other landowners and jurisdictions to protect the western yellow-billed cuckoo and other listed or sensitive species. We consider this voluntary partnership in conservation vital to our understanding of the status of species on non-Federal lands and necessary for us to implement recovery actions such as habitat protection and restoration, and beneficial management actions for species.
We have reviewed and evaluated the lower Rio Grande at Selden Canyon and Radium Springs, and have concluded that the benefits of exclusion under section 4(b)(2) of the Act outweigh the benefits of including these areas as western yellow-billed cuckoo critical habitat. The incremental regulatory benefits of including these lands within the critical habitat designation are minimized because the regulatory, educational, and ancillary benefits that would result from critical habitat designation are similar to the benefits already afforded through the IBWC 2016 River Management Plan and protections associated with the listing of the western yellow-billed cuckoo. In addition, the 2017 Biological Assessment associated with IBWC's Long-Term River Management of the Rio Grande Canalization Project (IBWC 2017, entire) commits to not removing any nesting habitat for western yellow-billed cuckoos or otherwise causing displacement of the species. The implementation of IBWC collaborative conservation project provides for significant conservation, management, improvement, and protection of habitat for western yellow-billed cuckoo conservation.
The Service has created close partnerships through the development of IBWC's restoration plan, which incorporates protections and management objectives for the western yellow-billed cuckoo and the habitat upon which it depends for breeding, sheltering, and foraging activities. The conservation strategy identified in IBWC's 2016 River Management Plan, along with our close coordination with IBWC, EBID and other partners, addresses the identified threats to western yellow-billed cuckoos and its habitat. These actions serve to manage and protect habitat needed for western yellow-billed cuckoo above those conservation measures which may be required if the area was designated as critical habitat.
Exclusion of these lands from critical habitat will help preserve the partnerships we have developed with local jurisdictions and project proponents through the development and ongoing implementation of their conservation plan. These partnerships are focused on western yellow-billed cuckoo conservation and securing conservation benefits that will lead to recovery. Because we now have a consistent western yellow-billed cuckoo population along the lower Rio Grande, we are relying on the conservation efforts of the many stakeholders to create, manage, and maintain western yellow-billed cuckoo habitat. We expect that the results of implementing these western yellow-billed cuckoo conservation actions will generate benefits beyond those that could be achieved from project-by-project evaluation through a critical habitat designation. The conservation gains to the western yellow-billed cuckoo identified south of Caballo Dam are more beneficial than designation of critical habitat because of the development of the water transaction program. Our partnership, along with the 2017 biological opinion for IBWC's canalization project and restoration sites [which includes the 2016 River Management Plan (updated to incorporate the western yellow-billed cuckoo in 2018) and the water transaction program], ensure implementation of the protections and management actions identified within their plan. Therefore, the relative benefits of excluding critical habitat on these lands are substantial and outweigh the benefits of including the area as critical habitat.
We have determined that the additional regulatory benefits of designating occupied areas as western yellow-billed cuckoo critical habitat, such as protection afforded through the section 7(a)(2) consultation process, are minimal. Furthermore, the conservation objectives identified by the IBWC Plan, in conjunction with our partnership with the EBID and others will provide a greater benefit to the species than critical habitat designation. We also conclude that the educational and ancillary benefits of designating critical habitat for the western yellow-billed cuckoo at Selden Canyon and Radium Springs would be negligible because of the partnership established between the Service and IBWC, and the management objectives identified in the biological assessment and biological opinion. Therefore, in consideration of the relevant impact to current and future partnerships, as summarized in the Benefits of Exclusion section above, we determined the significant benefits of exclusion outweigh the benefits of critical habitat designation.
We determine that the exclusion of the lower Rio Grande at Selden Canyon and Radium Springs from the designation of critical habitat for the western yellow-billed cuckoo will not result in extinction of the species because current conservation efforts under IBWC's River Management Plan adequately protect the geographical areas containing the physical or biological features essential to western yellow-billed cuckoo conservation. As discussed above under Effects of Critical Habitat Designation
HCPs for incidental take permits under section 10(a)(1)(B) of the Act provide for partnerships with non-Federal entities to minimize and mitigate impacts to listed species and their habitat. In some cases, HCP permittees agree to do more for the conservation of the species and their habitats on private lands than designation of critical habitat would provide alone. We place great value on the partnerships that are developed during the preparation and implementation of HCPs.
CCAAs and SHAs are voluntary agreements designed to conserve candidate and listed species, respectively, on non-Federal lands. In
When we undertake a discretionary section 4(b)(2) exclusion analysis, we will always consider areas covered by an approved CCAA/SHA/HCP, and generally exclude such areas from a designation of critical habitat if three conditions are met:
(1) The permittee is properly implementing the CCAA/SHA/HCP and is expected to continue to do so for the term of the agreement. A CCAA/SHA/HCP is properly implemented if the permittee is, and has been, fully implementing the commitments and provisions in the CCAA/SHA/HCP, implementing agreement, and permit.
(2) The species for which critical habitat is being designated is a covered species in the CCAA/SHA/HCP, or very similar in its habitat requirements to a covered species. The recognition that the Services extend to such an agreement depends on the degree to which the conservation measures undertaken in the CCAA/SHA/HCP would also protect the habitat features of the similar species.
(3) The CCAA/SHA/HCP specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area.
We have determined that the plans, HCPs, or Agreements identified in Table 3, fulfill the above criteria, and we are excluding the non-Federal lands covered by these plans that provide for the conservation of western yellow-billed cuckoo.
The Lower Colorado River Multi-Species Conservation Program HCP (2004, entire) was developed for areas along the lower Colorado River along the borders of Arizona, California, and Nevada from Lake Mead to Mexico, in the Counties of La Paz, Mohave, and Yuma in Arizona; Imperial, Riverside, and San Bernardino Counties in California; and Clark County in Nevada. In 1995, U.S. Department of the Interior agencies; water, power, and wildlife resources agencies from Arizona, California, and Nevada; Native American tribes; environmental interests; and recreational interests agreed to form a partnership to develop and implement a long-term endangered species compliance and management program for the historical floodplain of the lower Colorado River. The goal was to facilitate the development of an ecosystem-based HCP and coordination with the various LCR MSCP Federal partners. Reclamation has taken lead for coordinating activities under the LCR MSCP.
A Steering Committee provides oversight to Reclamation's LCR MSCP Program Manager, operating under a Funding and Management Agreement that was prepared among Federal, State, local, and tribal party participants (LCR MSCP 2007, p. 1-3). The potentially affected parties and other interested parties established a public process for developing the required documents and plans. Various public agencies and other non-governmental groups have participated in developing the various components of the LCR MSCP. The LCR MSCP primarily covers activities associated with water storage, delivery, diversion, and hydroelectric production. The record of decision was signed by the Secretary of the Interior on April 2, 2005. An important catalyst of the effort was a 1997 jeopardy biological opinion for the southwestern willow flycatcher issued to Reclamation for lower Colorado River operations (Service 2005a, entire). The Federal agencies involved in the LCR MSCP include Reclamation, Bureau of Indian Affairs (BIA), NPS, BLM, WAPA, and the Service. Native American Tribes involved in the LCR MSCP and owning lands within the planning area include the Colorado River Indians Tribes, Fort Mohave Tribe, Cocopah Tribe, Chemehuevi Tribe, and Fort Yuma (Quechan) Tribe.
The LCR MSCP planning area primarily surrounds proposed western yellow-billed cuckoo critical habitat along the lower Colorado River from Lake Mead to the southerly international border. Portions of the Colorado River, Lake Mead, Virgin River, and Muddy River in Arizona, Utah, and Nevada are included where they surround Lake Mead (including the conservation space of Lake Mead, which extends up the Colorado River to Separation Canyon). Also, a portion of the Bill Williams River at the Colorado River confluence at Lake Havasu occurs within the LCR MSCP planning area. The LCR MSCP permittees will create and maintain 4,050 ac (1,639 ha) of western yellow-billed cuckoo habitat, reduce the risk of loss of created habitat to wildfire, replace created habitat affected by wildfire, and avoid and minimize operational and management impacts to western yellow-billed cuckoos over the 50-year life of the permit (2005 to 2055) (Lower Colorado River Multi-Species Conservation Program 2004, pp. 5-30-5-36, Table 5-10, 5-58-5-60). Additional research, management, monitoring, and protection of western yellow-billed cuckoos will occur. In addition to western yellow-billed cuckoo habitat creation and subsequent management, the LCR MSCP provides funds to ensure existing western yellow-billed cuckoo habitat is maintained. Western yellow-billed cuckoo management associated with the LCR MSCP is conducted in conjunction and coordinated with management occurring on the National Wildlife Refuges (Bill Williams, Havasu, Cibola, and Imperial) and Tribal lands (Colorado River Indians Tribes, Fort Mohave Tribe, Cocopah Tribe, Chemehuevi Tribe, and Fort Yuma (Quechan) Tribe) along the LCR and within the LCR MSCP planning area.
On the lower Colorado River and Bill Williams River, we identified 77,726 ac (31,468 ha) of proposed critical habitat for exclusion within the LCR MSCP planning area and off-site conservation areas of La Paz, Mohave, and Yuma Counties in Arizona; and Imperial, Riverside, and San Bernardino Counties in California. Western yellow-billed cuckoo management within the proposed Units in the LCR MSCP planning area is occurring on National Wildlife Refuges (Bill Williams, Havasu, Cibola, and Imperial) and Tribal lands (Colorado River Indian Tribes, Fort Yuma (Quechan) Tribe, Cocopah Tribe, and Fort Mojave Tribe). During the breeding season the area is considered to have been occupied at the time of listing and is currently occupied.
Reclamation has provided protection and benefits to this species since 2005 and conducts annual monitoring of the species. Reclamation requested excluding habitat within the entire 914,200 ac (369,964 ha) LCR MSCP planning area and off-site conservation areas (LCR MSCP implementation area) from critical habitat under the rationale that conservation measures described in the LCR MSCP Habitat Conservation Plan provide protection and benefits to the yellow-billed cuckoo and its habitat
Conservation and development of western yellow-billed cuckoo and southwestern willow flycatcher habitat is a priority for all the Federal, State, Tribal, and private land managers within the LCR MSCP planning area. In particular, the Bill Williams River, Havasu, Cibola, and Imperial NWRs and Fort Mohave, Colorado River Indian Tribe, and Quechan Tribes are implementing conservation strategies to manage and enhance riparian resources along the Colorado River. Reclamation, in its lead role as Program Manager for the LCR MSCP, requested exclusion for areas proposed as critical habitat within the LCR MSCP boundary. Information regarding their specific activities and management on their lands is identified in our supporting information (Service 2020b, entire).
As discussed above under Effects of Critical Habitat Designation
The benefits of western yellow-billed cuckoo critical habitat designation on lands managed by Federal partners within the LCR MSCP planning area are limited. Reclamation manages lower Colorado River water storage, river regulation, and channel maintenance such that the river stays within its incised channel and can no longer flow onto the adjacent floodplain. As a result, Reclamation has no discretion to change these water management actions to allow a better functioning stream to improve the riparian forest. Improving the duration, magnitude, and timing of river flow would generate overbank flooding, create and recycle riparian habitat, and, therefore, improve the quality and abundance of western yellow-billed cuckoo habitat. Because of the lack of flooding and the prevention of overbank flows, the floodplain can no longer support the pre-dam riparian forest.
While land managers (BLM, NPS, Service NWRs and Tribes) along the LCR floodplain do conduct discretionary actions on their lands, the success of their conservation actions and impacts of other actions to restore pre-dam riparian forests are limited by the impacts of water management. Overall, the riparian forest and western yellow-billed cuckoo habitat managed by these land management agencies are not expected to be harmed further by site-specific land management actions because the quality of vegetation has already been degraded. To the extent that remaining patches of riparian habitat and western yellow-billed cuckoo habitat continue to exist, they are of great value for western yellow-billed cuckoo conservation. As a result, past section 7 consultations on land management agency actions within the proposed critical habitat along the LCR show that land management agencies conserve existing riparian vegetation and explore innovative strategies outside of the restrictions on water management to improve vegetation quality that could be used by western yellow-billed cuckoos. Because the regulated stream flow has caused habitat degradation and existing water management operations prevent any change in water management that can improve the riparian forest, land management agencies are unable to impact these river flow conditions, nor are they able to impact river flow conditions through non-discretionary mandatory reasonable and prudent measures or alternatives resulting from any possible future section 7 consultation. Therefore, there are limited benefits to designating critical habitat on lands managed by Federal and Tribal partners within the LCR MSCP implementation.
We also have determined that few additional benefits would be derived from including the five tribal areas within the LCR MSCP planning area as western yellow-billed cuckoo critical habitat, beyond what will be achieved through the implementation of their management plans. No different than our description above, we expect that the degraded environmental baseline caused by water storage, river regulation, and channel maintenance would cause similar evaluations and conclusions in section 7 consultations on tribal lands within the LCR MSCP planning area. Additionally, because these tribes are also implementing their Flycatcher Management Plans or Flycatcher and Cuckoo Management Plans that preserve existing habitat, similarly within the limitations caused by regulation of the Colorado River, there are likely few regulatory benefits to be gained from a designation of western yellow-billed cuckoo critical habitat.
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Some educational and conservation benefit from reinforcing other environmental laws and regulations may also be gained from including the LCR MSCP planning area within the western yellow-billed cuckoo critical habitat designation. However, this conservation benefit can also be accomplished through ongoing education being conducted by the LCR MSCP. As long as the educational benefit is ongoing, the support of other laws and regulations is minimized. Ongoing outreach that educates local communities about the LCR MSCP program activities conducted to benefit species along the river including conservation-themed community events, professional conferences, Project Water Education for Teachers (Wet) workshops, school programs, youth conservation corps coordination, volunteer opportunities, and outdoor expos (LCR MSCP 2020, pp. 303-304). The annual Colorado River Terrestrial and Riparian meeting and Las Vegas
The benefits of excluding the LCR MSCP management areas from the designation are considerable, and include the conservation measures described above (land acquisition, management, and habitat development) and those associated with implementing conservation through enhancing and developing partnerships.
A small benefit of excluding the LCR from critical habitat includes some reduction in administrative costs associated with engaging in the critical habitat portion of section 7 consultations due the area being occupied and the species being listed as threatened. Administrative costs include time spent in meetings, preparing letters and biological assessments, and in the case of formal consultations, the development of the critical habitat component of a biological opinion. However we anticipate that the costs to perform the additional critical habitat and associated adverse modification analysis would not be significant.
The exclusion of the LCR from critical habitat as a result of the LCR MSCP can help facilitate other cooperative conservation activities with other similarly situated dam operators or landowners. Continued cooperative relations with the States and a myriad of stakeholders is expected to influence other future partners and lead to greater conservation than would be achieved through multiple site-by-site, project-by-project efforts, and associated section 7 consultations. With the current degraded condition of the environmental baseline and limitations associated with changes to dam operations, the LCR MSCP conservation measures commit the program to create and manage at least 5,940 ac (2,404 ha) of cottonwood-willow and 1,320 ac (534 ha) of honey mesquite land cover types to provide habitat for 14 species including the western yellow-billed cuckoo (Reclamation 2020a, p. 7). A mosaic of these habitat types in patches of at least 25 ac (10 ha) and totaling at least 4,050 ac (1,639 ha) is required to be created and managed for western yellow-billed cuckoos (LCR MSCP 2004, entire). Between 2005 and 2019, the LCR MSCP has created 4,117 ac (1,666 ha) of cottonwood-willow and 1,800 ac (728 ha) of mesquite habitat (LCR MSCP 2020, pp. 14, 15, 94; Reclamation 2020a, p. 7) in critical habitat Units 1, 2, and 3.
The benefits of excluding lands within the LCR MSCP plan area from critical habitat designation include recognizing the value of conservation benefits associated with these HCP actions; encouraging actions that benefit multiple species; encouraging local participation in development of new HCPs; and facilitating the cooperative activities provided by the Service to landowners, communities, and counties in return for their voluntary adoption of the HCP.
The LCR MSCP will help generate important status and trend information for western yellow-billed cuckoo recovery. In addition to specific western yellow-billed cuckoo conservation actions, the development and implementation of this HCP provides regular monitoring of western yellow-billed cuckoo habitat, distribution, and abundance over the 50-year permit. Most of the western yellow-billed cuckoos successfully breeding along the LCR since 2005 have been in habitat created and managed by the LCR in five created conservation areas: Beal Lake Conservation Area on Havasu NWR, Cibola NWR Unit #1 Conservation Area, Cibola Valley Conservation Area, Palo Verde Ecological Reserve on California Department of Fish and Wildlife land, and Yuma East Wetlands on city of Yuma, Quechan Indian Tribe lands, and Arizona Game and Fish Department lands (LCR MSCP 2020, pp. 162-163, 179-249; Reclamation 2020a, pp. 7-8). Although nesting was not confirmed in other sites, western yellow-billed cuckoos were detected at Planet Ranch on the Bill Williams River, Laguna Division Conservation Area near Yuma, and Hunters Hole at the southern end of the Limitrophe (Parametrix, Inc. and Southern Sierra Research Station 2019, entire). They have also been documented nesting in other habitat areas between southern Nevada and the Southern International Border with Mexico.
Failure to exclude the LCR MSCP planning area could be a disincentive for other entities contemplating partnerships as it would be perceived as a way for the Service to impose additional regulatory burdens once conservation strategies have already been agreed to through our permitting process. Private entities are motivated to work with the Service collaboratively to develop voluntary HCPs because of the regulatory certainty provided by an incidental take permit under section 10(a)(1)(B) of the Act with the No Surprises Assurances. This collaboration often provides greater conservation benefits than could be achieved through strictly regulatory approaches, such as critical habitat designation. The conservation benefits resulting from this collaborative approach are built upon a foundation of mutual trust and understanding. It has taken considerable time and effort to establish this foundation of mutual trust and understanding, which is one reason it often takes several years to develop a successful HCP. Excluding this area from critical habitat would help promote and honor that trust by providing greater certainty for permittees that once appropriate conservation measures have been agreed to and consulted on for listed and sensitive species additional consultation will not be necessary.
HCP permittees and stakeholders submitted comments that they view critical habitat designation along the LCR as unwarranted and an unwelcome intrusion to river operations, and an erosion of the regulatory certainty that
Our collaborative relationships with the LCR MSCP permittees clearly make a difference in our partnership with the numerous stakeholders involved and influence our ability to form partnerships with others. Concerns over perceived added regulation potentially imposed by critical habitat harms this collaborative relationship by leading to distrust. Our experience has demonstrated that successful completion of one HCP has resulted in the development of other conservation efforts and HCPs with other landowners. Partners associated with the LCR MSCP also established HCPs with the Service in central Arizona.
There are additional considerable benefits from excluding the areas owned by or held in trust for the five tribes along the LCR including the advancement of our partnership with the tribes and for the tribes to develop and implement tribal conservation and natural resource management plans for their lands and resources, which includes the western yellow-billed cuckoo. Benefits associated with excluding tribes and other landowners and managers also include: (1) The maintenance of effective working relationships to promote the conservation of the western yellow-billed cuckoo and its habitat; (2) the allowance for continued meaningful collaboration and cooperation; (3) the provision of conservation benefits to riparian ecosystems and the western yellow-billed cuckoo and its habitat that might not otherwise occur; and (4) the reduction or elimination of administrative and/or project modification costs as analyzed in the economic analysis.
During the development of the 2014 and 2020 western yellow-billed cuckoo critical habitat proposals, we sought and received input from tribes. We provided technical assistance to tribes requesting assistance to develop measures to conserve the western yellow-billed cuckoo and its habitat on their lands. These measures are contained within the management and conservation plans that we have in our supporting record for this decision (see discussion above). These proactive actions were conducted in accordance with Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2); and Secretarial Order 3317, “Department of Interior Policy on Consultation with Indian Tribes” (December 1, 2011). We have determined that these tribes should be the governmental entities to manage and promote western yellow-billed cuckoo conservation on their lands. During our communication with these tribes, we recognized and endorsed their fundamental right to provide for tribal resource management activities, including those relating to riparian ecosystems.
The benefits of excluding this HCP from critical habitat designation include relieving Federal agencies, State agencies, landowners, tribes, communities, and counties of any additional regulatory burden for water management actions that might be imposed by critical habitat. The LCR MSCP took many years to develop and, upon completion, became a river long conservation plan that is consistent with the western yellow-billed cuckoo recovery objectives within the planning area. This HCP provides western yellow-billed cuckoo conservation benefits and commitments toward habitat development and management, and western yellow-billed cuckoo surveys and studies that could not be achieved through project-by-project section 7 consultations. Imposing an additional regulatory review after the HCP is completed, solely as a result of the designation of critical habitat, may undermine conservation efforts and partnerships in many areas. In fact, it could result in the loss of species' benefits if future participants abandon the voluntary HCP process. Designation of critical habitat along the LCR could be viewed as a disincentive to those entities currently developing HCPs or contemplating them in the future. We find the section 7 consultation process for a designation of critical habitat, above and beyond that which is already required for the species, is unlikely to result in additional protections for the western yellow-billed cuckoo on lands within the LCR MSCP planning and implementation area (which includes NPS, Service, BLM, tribal lands, and non-Federal lands).
We have determined that the benefits of excluding the LCR MSCP planning area along the LCR within the States of Arizona and California from the designation of western yellow-billed cuckoo critical habitat on all Federal, State, Tribal, and non-Federal lands outweigh the benefits of inclusion. In our determination, we considered and found that the HCP meets our criteria for exclusion for HCPs (see
Under section 7 of the Act, critical habitat designation will provide little additional benefit to the western yellow-billed cuckoo within the boundaries of the LCR MSCP. The catalyst for the LCR MSCP was largely a result of the jeopardy biological opinion (Service 1997, entire) for the southwestern willow flycatcher to Reclamation for its LCR operations (Service 2005a, entire). The Law of the River, which protects the regulation and delivery of Colorado River water to the western United States, prevents altering the regulation of the Colorado River for the benefit of a more naturally functioning system, which can create and recycle southwestern willow flycatcher and western yellow-billed cuckoo habitat. As a result, the development of the LCR MSCP and its Implementing Agreement are designed to ensure southwestern willow flycatcher and western yellow-billed cuckoo conservation within the planning area and includes management measures to protect, restore, enhance, manage, research, and monitor western yellow-billed cuckoo habitat (along the Colorado River and at mitigation sites). The adequacy of LCR MSCP conservation measures to protect the then candidate western yellow-billed cuckoo and its habitat have undergone evaluation under a section 7 consultation conference opinion under the Act, reaching a non-jeopardy conclusion. Therefore, the benefit of including the LCR MSCP planning area to require section 7 consultation for critical habitat is minimized.
The commitment by the LCR MSCP partners to western yellow-billed cuckoo conservation throughout the planning area is considerable and we have determined that the LCR MSCP has met the conditions to be excluded from critical habitat as identified above (see
Additional riparian habitat along the river that can be used by western yellow-billed cuckoos, mostly as migratory habitat and also as nesting habitat, occurring across thousands of acres (hectares), will collectively be restored, planted, managed, and maintained on NWRs (Cibola, Imperial, and Bill Williams River), Federal lands (NPS and BLM), and tribal lands (Colorado River Indians Tribes, Fort Mohave Tribe, Cocopah Tribe, Chemehuevi Tribe, and Fort Yuma (Quechan) Tribe) along the LCR within the area covered by the LCR MSCP.
This HCP involved public participation through public notices and comment periods associated with the NEPA process prior to being approved. Additionally, this HCP is one of the largest HCPs in the country, with an extensive list of stakeholders and permittees from California, Arizona, and Nevada that took about a decade to complete. Therefore, managing agencies, States, counties, cities, and other stakeholders are aware of the importance of the LCR for the western yellow-billed cuckoo. For these reasons, although we have determined that designation of critical habitat along the LCR MSCP planning area would provide some additional educational benefit, much of this is already occurring through the LCR MSCP.
Covered activities under the LCR MSCP are not the only possible impacts to western yellow-billed cuckoo habitat along the LCR. There are continued projects developed, carried out, funded, and permitted by Federal agencies such as Reclamation and BLM that are not covered by the LCR MSCP. Fire management, habitat restoration, recreation, and other activities have the ability to adversely affect the western yellow-billed cuckoo and critical habitat. Minor changes in habitat restoration, fire management, and recreation could occur as result of a critical habitat designation in the form of additional discretionary conservation recommendations to reduce impacts to critical habitat. Therefore, if the LCR was designated as critical habitat, there may be some benefit through consultation under the adverse modification standard for actions not covered by the LCR MSCP. But, as explained above, the habitat along the LCR is so degraded that it is unlikely that a section 7 consultation under an adverse modification standard would result in mandatory elements (
Excluding the LCR within the LCR MSCP planning area would eliminate some small additional administrative effort and cost during the consultation process pursuant to section 7 of the Act. Excluding the LCR MSCP planning area would continue to help foster development of future HCPs and strengthen our relationship with Arizona, California, and Nevada permittees and stakeholders, eliminating regulatory uncertainty associated with permittees and stakeholders. Excluding the LCR MSCP planning area eliminates any possible risk to water storage, delivery, diversion and hydroelectric production to Arizona, California, and Nevada, and therefore significant potential economic costs due to a critical habitat designation. We have therefore concluded that the benefits to the western yellow-billed cuckoo and its habitat as result of the improvement, maintenance, and management activities attributed to the LCR MSCP, and those additional efforts conducted by NWRs, Tribes, and other land managers, outweigh those that would result from the addition of a critical habitat designation. We have therefore excluded these lands from the final critical habitat designation pursuant to section 4(b)(2) of the Act.
We have determined that exclusion of the Colorado River within the LCR MSCP planning area will not result in extinction of the western yellow-billed cuckoo. As discussed above under Effects of Critical Habitat Designation
We identified 3,974 ac (1,608 ha) within Unit 11 as proposed critical habitat in and adjacent to the water storage area of Horseshoe Reservoir and approximately 4 mi (6 km) downstream from the final designation. The Horseshoe Reservoir and Bartlett Dam are part of the Salt River Project (SRP) constructed by Reclamation. The SRP was part of a Federal action started in 1917 to construct irrigation facilities along the Salt and Verde River in Maricopa and Gila Counties, Arizona. Lands surrounding the reservoir and stream are managed by the Tonto National Forest. Horseshoe Reservoir facilities were completed in 1945 and management and operation of the facilities was turned over to two entities: Salt River Project Agricultural Improvement and Power District (a political subdivision of the State of Arizona) and the Salt River Valley Water Users' Association (a private
The HCP is being properly implemented and identifies the southwestern willow flycatcher and the western yellow-billed cuckoo as covered species, and impacts to nesting habitat and breeding attempts from raising and lowering of the water stored behind Horseshoe Dam are covered activities for the duration of the permit, thereby meeting criteria 1 and 2 above for consideration for exclusion (see
Optimum operation of Horseshoe and Bartlett is predicted to periodically result in the unavailability, modification, or loss of up to 200 ac (81 ha) of occupied southwestern willow flycatcher and western yellow-billed cuckoo habitat on average. If circumstances change, adaptive management will be implemented to address impacts on up to 200 ac (81 ha) of additional occupied southwestern willow flycatcher and western yellow-billed cuckoo habitat at Horseshoe Lake (SRP 2008, p. ES-5). On-site and off-site minimization and mitigation measures are identical for both species (SRP 2008, p. 169). Under the Horseshoe and Bartlett Dam HCP, SRP owns and manages the Gila River mitigation properties near Fort Thomas in Unit 22 (AZ-20; Gila River 1). We identified these properties as critical habitat, but because SRP supports including them as critical habitat, we did not consider them for exclusion (SRP 2014, entire). SRP established an irrevocable trust to fund this HCP in January 2011, with approximately $6.0M to support the estimated $300,000 on average annual expenditures over the life of the permit and in perpetuity costs for some of the mitigation obligations (SRP 2019a, p. 25).
The action area, as described in the Horseshoe Bartlett HCP, prepared for SRP by ERO Resources Corporation (SRP 2008, entire), extends farther from the location of these dams to areas where the impacts of water storage and delivery may occur because of the impacts to other species caused by water regulation. Specific southwestern willow flycatcher-related impacts were only identified within the high water mark of the Horseshoe Lake conservation space between 2,026 ft (618 m) in elevation and Horseshoe Dam. The area within Horseshoe Lake is Federal land managed by the USFS and Reclamation, and SRP maintain interest in water management of the lake. A tri-party agreement between SRP, USFS, and Reclamation establishes a framework to maintain these water storage areas for their intended purpose. The Tonto National Forest continues to manage this area for recreation and other public land uses (SRP 2008, p. 16).
Periodic changes in the level of the lake water of the Horseshoe Lake conservation space due to dam operations and water storage can result in the establishment and maintenance of nesting western yellow-billed cuckoo habitat. This is because western yellow-billed cuckoos nest or otherwise use vegetation that grows in the dry lakebed within the conservation space. Rising water levels or excessive drying can cause temporary losses and unavailability of this nesting habitat. The amount and timing of water stored in Horseshoe Lake can vary widely from year-to-year because of the relatively small amount of water storage space in Horseshoe Lake, the erratic nature of precipitation and run-off, and the arid nature of the Sonoran Desert.
It is estimated that between 60 to 450 ac (24 to 182 ha) of western yellow-billed cuckoo nesting habitat will occur annually within the high water mark of Horseshoe Lake over the 50-year permit period of this HCP (SRP 2008, p. 120). The annual average of western yellow-billed cuckoo habitat estimated to occur within the lake is 260 ac (105 ha) (SRP 2008, p. 120). In total, the upper limit of occupied western yellow-billed cuckoo habitat addressed by the HCP is 400 ac (162 ha) (SRP 2008, pp. 134-135).
The 50-year Horseshoe Bartlett HCP conservation strategy focuses primarily on the protection and management of southwestern willow flycatcher and western yellow-billed cuckoo habitat within the Horseshoe Lake conservation space through modified dam operations; acquisition and management of habitat outside of Horseshoe Lake; and the implementation of measures to conserve Verde River water. SRP will modify dam operations to make western yellow-billed cuckoo habitat available earlier in the nesting season and to maintain riparian vegetation at higher elevations within the conservation space whenever possible. SRP acquired a 150 ac (61 ha) and a 55 ac (22 ha) parcel along the upper Gila River near Fort Thomas (SRP 2019a, p. 14). SRP's water supply protection program will focus on special projects to specifically benefit mitigation habitat such as ground water testing and modeling in the vicinity of mitigation lands, development and support of instream flow water rights, and research on the relationship between hydrology, habitat, and covered species under the HCP.
Ongoing maintenance on mitigation properties include year-round perimeter fence patrolling and repair; and removing nonnative plants, kochia (
The issuance of the Horseshoe Bartlett HCP permit was based upon the persistence of varying degrees of occupied nesting southwestern willow
As discussed above under Effects of Critical Habitat Designation
The Horseshoe Lake area is occupied by western yellow-billed cuckoos and, although western yellow-billed cuckoos were not listed at the time the section 7 consultation for southwestern willow flycatchers was conducted, effects to western yellow-billed cuckoos were evaluated as part of the HCP permitting process. There may be some minor benefits by the designation of critical habitat within Horseshoe Lake, primarily because of the additional review required by USFS management of the area. Not only does the USFS manage recreation, access, land use, and wildfire suppression and management activities, USFS also ensures that there is no cattle grazing, or road and camping developments; recreation activities at the lake are mostly focused on fishing. These USFS management actions have resulted in conservation of western yellow-billed cuckoo habitat since the listing of the southwestern willow flycatcher in 1995 within the conservation space of Horseshoe Lake. Additionally, because the purpose of the conservation space of Horseshoe Lake is to store water, it prevents significant land and water altering actions, such as the development of permanent structures within this open space area. As a result, because of the conservation associated with implementing the HCP, western yellow-billed cuckoo breeding areas occurring within the Horseshoe Lake conservation space, and supporting USFS management, we have determined that these incremental benefits of a critical habitat designation are minimized. Formal consultations will likely result in only discretionary conservation recommendations due to existing appropriate management; therefore we have determined that there is a low probability of mandatory elements (
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also affect the implementation of Federal laws, such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
We have determined that there would be little additional educational and informational benefit gained from including Horseshoe Lake within the designation, because this area is well known as an important area for western yellow-billed cuckoo management and recovery. For example, the Horseshoe Bartlett HCP was developed over multiple years and was completed in 2008; and the Horseshoe Lake area was proposed as southwestern willow flycatcher critical habitat in 2004 and excluded in 2005, and proposed as western yellow-billed cuckoo habitat in 2014 and 2020. Additionally, since the early 2000s, Horseshoe Lake southwestern willow flycatchers and western yellow-billed cuckoos have been discussed by management agencies while meeting to discuss management issues occurring in the area for two species (western yellow-billed cuckoos as a candidate species). Consequently, we have determined that the informational benefits have already occurred through past actions even though this area is not designated as critical habitat. The importance of Horseshoe Lake for conservation of the western yellow-billed cuckoo, its importance to the Verde River, and to the population of western yellow-billed cuckoos in the State of Arizona has already been realized by managing agencies, including the public, State and local governments, and Federal agencies.
The benefits of excluding the area within the high-water mark (below an elevation of 2,026 ft (618 m) of Horseshoe Lake from being designated as critical habitat are considerable, and include the conservation measures described above and those associated with implementing conservation through enhancing and developing partnerships.
The Horseshoe Bartlett HCP has and will continue to help generate important status and trend information and conservation toward western yellow-billed cuckoo recovery. SRP will continue to modify dam operations to make western yellow-billed cuckoo habitat available earlier in the nesting season, manage 200 ac (81 ac) of habitat for the western yellow-billed cuckoo, and implement water protection programs on the Verde River. In addition to those specific western yellow-billed cuckoo conservation actions, the development and implementation of this HCP provides regular monitoring of western yellow-billed cuckoo habitat, distribution, and abundance over the 50-year permit at Horseshoe Lake. SRP is currently implementing innovative monitoring of riparian habitat abundance and western yellow-billed cuckoo habitat suitability through satellite image-based models (Hatten and Paradzick 2003, entire; SRP 2012a, pp. 13-14).
Because of the importance of the Horseshoe Lake conservation space for water storage, there is no expectation that any considerable development or changes to the landscape would result in reducing the overall water storage space, and therefore the overall ability to develop riparian vegetation. Horseshoe Dam operates in a way that continues moves water out of the reservoir downstream to Bartlett Lake and canals in order to continuously create water storage conservation space, and therefore area for western yellow-billed cuckoo habitat to be maintained. Constant lake levels, which are not the operational condition at Horseshoe Lake for water storage, will not create or maintain abundant western yellow-billed cuckoo habitat. On the contrary,
Not excluding the areas within Horseshoe Bartlett HCP could be a disincentive for other entities contemplating partnerships, as it would be perceived as a way for the Service to impose additional regulatory burdens once conservation strategies have already been agreed to. Private entities are motivated to work with the Service collaboratively to develop voluntary HCPs because of the regulatory certainty provided by an incidental take permit under section 10(a)(1)(B) of the Act with the “No Surprises” assurances. This collaboration often provides greater conservation benefits than could be achieved through strictly regulatory approaches, such as critical habitat designation. The conservation benefits resulting from this collaborative approach are built upon a foundation of mutual trust and understanding. It takes considerable time and effort to establish this foundation of mutual trust and understanding. Excluding this area from critical habitat would help promote and honor that trust by providing greater certainty for permittees that once appropriate conservation measures have been agreed to and consulted on for the western yellow-billed cuckoo that additional consultation will not be necessary. Working together with SRP and Reclamation, USFS management has continued to foster the maintenance and development of western yellow-billed cuckoo habitat through land management actions that protect habitat and reduce habitat stressors. The majority of USFS standards and guidelines in the Tonto National Forest's Land Management Resource Plan would benefit the western yellow-billed cuckoo.
Through the development of the Horseshoe Bartlett HCP, we have generated additional partnerships with SRP and its stakeholders by developing collaborative conservation strategies for the western yellow-billed cuckoo and the habitat upon which it depends for breeding, sheltering, foraging, migrating, and dispersing. The strategies within the HCP seek to achieve conservation goals for the western yellow-billed cuckoo and its habitat, and thus can be of greater conservation benefit than the designation of critical habitat, which does not require specific actions. Continued cooperative relations with SRP and its stakeholders is expected to influence other future partners and lead to greater conservation than would be achieved through multiple site-by-site, project-by-project, section 7 consultations. For example, soon after completing the Roosevelt HCP, we partnered with SRP and its stakeholders to develop the Horseshoe and Bartlett Dam HCP where the western yellow-billed cuckoo conservation was a key component. The benefits of excluding lands within the Horseshoe and Bartlett Dam HCP area from critical habitat designation include recognizing the value of conservation benefits associated with HCP actions; encouraging actions that benefit multiple species; encouraging local participation in development of new HCPs; and facilitating the cooperative activities provided by the Service to landowners, communities, and counties in return for their voluntary adoption of the HCP. Concerns over perceived added regulation potentially imposed by critical habitat could harm this collaborative relationship.
Another benefit of excluding Horseshoe Bartlett HCP area from critical habitat includes a small reduction in administrative costs for Federal agencies associated with engaging in activities within the critical habitat portion of section 7 consultations. Administrative costs include time spent in meetings, preparing letters and biological assessments, and in the case of formal consultations, the development of the critical habitat component of a biological opinion. However, because the western yellow-billed cuckoo occurs at Horseshoe Lake during the breeding season, consultations evaluating jeopardy to the western yellow-billed cuckoo would be expected to occur regardless of a critical habitat designation, and those costs to perform the additional analysis are not expected to be significant.
We have determined that the benefits of exclusion of the conservation space of Horseshoe Bartlett HCP below 2,026 ft (618 m) of Horseshoe Lake from the designation of western yellow-billed cuckoo critical habitat on Federal lands surrounding the lake managed by the USFS, as identified in the Horseshoe Bartlett HCP, outweigh the benefits of inclusion as critical habitat. In our determination, we considered and found that the HCP meets our criteria for exclusion for HCPs (see
The benefits of designating critical habitat for the western yellow-billed cuckoo at Horseshoe Lake are relatively low in comparison to the benefits of exclusion. We find that including Horseshoe Lake would result in very minimal, if any additional benefits to the western yellow-billed cuckoo, because Horseshoe Dam operations will continue to foster the maintenance, development, and necessary recycling of habitat for the western yellow-billed cuckoo in the long-term due to the dynamic nature of water storage and delivery. USFS management fosters the presence of western yellow-billed cuckoo habitat, and there is virtually no risk of changes to the landscape within the Horseshoe Lake conservation space, based on the track record of successful habitat maintenance for western yellow-billed cuckoos and southwestern willow flycatchers.
The benefits of excluding Horseshoe Lake from inclusion as critical habitat are considerable and varied. Excluding Horseshoe Lake will strengthen our partnership with Horseshoe Bartlett HCP permittees and stakeholders and potentially help foster development of future HCPs. Excluding Horseshoe Lake also eliminates regulatory uncertainty associated with the permittees HCP and the operation of Horseshoe and Bartlett Dams for water storage and flood control. The conservation measures being implemented by the Horseshoe and Bartlett Dam HCP are considerable and include acquisition and management of western yellow-billed cuckoo habitat, modifications of Horseshoe Dam operations to facilitate the persistence of western yellow-billed cuckoo habitat, and long-term monitoring of western yellow-billed cuckoo habitat and territories. These conservation measures will result in greater western yellow-billed cuckoo conservation benefits than what could be accomplished from a project-by-project evaluation through the incremental benefits of a critical habitat designation. Excluding Horseshoe Lake will also eliminate some additional administrative effort and cost during the consultation process pursuant to section 7 of the Act.
After weighing the benefits of including Horseshoe Lake as western yellow-billed cuckoo critical habitat against the benefit of exclusion, we have concluded that the benefits of excluding the conservation space of Horseshoe Lake below an elevation 2,026 ft. (618 m), underneath the coverage of the Horseshoe Bartlett HCP and with the support of USFS management, outweigh
As mentioned below in our evaluation of SRP's Roosevelt HCP, SRP requested that their western yellow-billed cuckoo mitigation property along the upper Gila River purchased as part of the measures to implement the Horseshoe Bartlett Dams HCP be designated as critical habitat. The mitigation property is not located within the Horseshoe lakebed, and may benefit from section 7 consultation. Therefore, based upon the comments received from SRP and the likely benefit of future section 7 consultation, we have honored the landowners request not to exclude the mitigation properties acquired by SRP along the Gila River from the final designation as critical habitat for the western yellow-billed cuckoo.
We find that the exclusion of the conservation space of Horseshoe Lake will not lead to the extinction of the western yellow-billed cuckoo, nor hinder its recovery because Horseshoe and Bartlett Dam operations combined with the preservation of open space within the lake and USFS land management will ensure the long-term persistence and protection of western yellow-billed cuckoo habitat at Horseshoe Lake. In addition, as discussed above under Effects of Critical Habitat Designation
Accordingly, we have determined that the critical habitat within the Salt River Project Horseshoe Bartlett HCP planning area should be excluded from the final designation because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species. Therefore, we are excluding approximately 397 ac (161 ha) of critical habitat from Unit 11: AZ-9A (76 ac (31 ha)) and AZ-9B (321 ac (130 ha) from the final critical habitat designation.
In the revised proposed rule we identified 3,155 ac (1,277 ha) for exclusion from Unit 12 (AZ-10, Tonto Creek) and 2,469 ac (1,000 ha) from Unit 23 (AZ-21, Salt River) from the final designation based on the Salt River Project (SRP) Roosevelt Dam HCP. SRP obtained a permit under section 10(a)(1)(B) of the Act in 2003, for the Roosevelt Dam HCP for the operation of Roosevelt Dam in Gila and Maricopa Counties, Arizona. Roosevelt Dam was constructed by Reclamation and turned over to SRP for operation and management. The permit authorizes incidental take of the federally listed southwestern willow flycatcher caused by the raising and lowering of the water stored by Roosevelt Dam for a period of 50 years. The then-candidate yellow-billed cuckoo was also covered by the HCP in anticipation of Federal listing. Critical habitat for this unit is a 12-mi (19-km)-long continuous segment of Tonto Creek ending at the 2,151-foot elevation line, which represents the lakebed of Theodore Roosevelt Lake. The extent of the full conservation storage pool at Roosevelt Lake extends to the 2,151-ft (656 m) high elevation line and represents the area covered by the Roosevelt Dam HCP. The land within the Roosevelt Lake perimeter is Federal land owned and managed by the USFS (Tonto National Forest).
The Roosevelt Lake western yellow-billed cuckoo population fluctuates depending on the habitat conditions at the lake edge and inflows. During lower water years, flat gradient floodplains expose broad areas where riparian vegetation can grow at both the Salt River and Tonto Creek inflows. The areas at each end of the lake are estimated to be able to establish as much as 1,250 ac (506 ha) of habitat for the western yellow-billed cuckoo below the high water mark. The cycles of germination, growth, maintenance, and loss of western yellow-billed cuckoo habitat within the perimeter of Roosevelt Lake are dependent on how and when the lake recedes due to the amount of water in-flow, and subsequent storage capacity and delivery needs caused by Roosevelt Dam operations. The process of western yellow-billed cuckoo habitat inundation and drying through raising and lowering of lake levels can be more exaggerated than the dynamic flooding that occurs on free-flowing streams, yet those dynamic processes within the lake's high water mark mimic those that occur on a river and are important to develop and maintain western yellow-billed cuckoos and their habitat. Even in high-water years, some high quality riparian habitat would persist at Roosevelt Lake providing western yellow-billed cuckoo nesting opportunities.
The Roosevelt Dam HCP conservation strategy for western yellow-billed cuckoo focuses primarily on: (1) The acquisition and management of western yellow-billed cuckoo habitat outside of Roosevelt Lake; (2) the protection of existing habitat within the Roosevelt Lake conservation space; and (3) the creation of riparian habitat adjacent to Roosevelt Lake. Western yellow-billed cuckoo habitat is to be created and maintained at Roosevelt Lake (outside of the impacts of water storage) at the adjacent Rock House Demonstration Area. Also, because the USFS has management authority over dry land within the lakebed, SRP would fund a USFS Forest Protection Officer to patrol and improve protection of western yellow-billed cuckoo habitat in the Roosevelt lakebed from adverse activities such as fire ignition from human neglect, improper vehicle use, and other unauthorized actions that could harm habitat. These measures fulfill the criteria for consideration of exclusion of areas covered by the Roosevelt Dam HCP (see
Because the mitigation measures for the already federally listed southwestern willow flycatcher were intended to support the then-candidate western yellow-billed cuckoos as well, suitable habitat that fulfilled the needs of both species were included in the selection of mitigation sites in the HCP (SRP 2002, p. 132). As part of implementing the HCP, western yellow-billed cuckoo properties have been acquired along the lower San Pedro and Gila River (Middle Gila/San Pedro Management Unit) and along the Verde River (SRP 2012b, pp. 17-20). SRP has acquired 1,842 ac (745 ha) of riparian habitat and additional buffer lands and
In response to the 2014 proposed and the 2020 revised proposed critical habitat rule, SRP requested that Roosevelt Lake, including the Tonto and Salt rivers inflows be excluded from final critical habitat designation, but that mitigation properties be designated as critical habitat.
As discussed above under Effects of Critical Habitat Designation
The Roosevelt Lake area is known to be occupied by western yellow-billed cuckoos and has undergone section 7 consultation under the jeopardy standard related to the Roosevelt Lake HCP and USFS actions. There may be some minor benefits from the designation of critical habitat within Roosevelt Lake, primarily because it would require the Service and USFS to perform additional review of USFS management within the exposed portion of the lake bottom through a critical habitat consultation under section 7 of the Act. These USFS management actions are typically limited to recreation management and resource use because the Salt River Project operates conservation space of Roosevelt Lake to store water. USFS has appropriately managed recreation, access, land use, and wildfire in a manner that has conserved both southwestern willow flycatcher and western yellow-billed cuckoo habitat since the permit was issued, as demonstrated by the continued persistence of both species in habitat surrounding Roosevelt Lake. For these reasons and because formal consultations will likely result in only discretionary conservation recommendations due to existing appropriate management, we have determined that there is a low probability of mandatory elements (
We have evaluated Roosevelt Lake Dam operations through implementation of the Roosevelt HCP, and considered impacts to western yellow-billed cuckoos and their habitat. The conservation strategies in the Roosevelt HCP included considerable habitat acquisition to account for habitat affected, with commitments for management and monitoring. We concluded that Roosevelt Dam operations, while causing incidental take of western yellow-billed cuckoos periodically, will support the development of additional habitat over time. Because of the non-jeopardy analysis completed in our section 7 consultation, the continued function of Roosevelt Lake to establish western yellow-billed cuckoo habitat for recovery, and the comprehensive conservation strategies implemented in the HCP, we have determined that there is a low probability of mandatory elements (
Another important benefit of designation is that it can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. The designation of critical habitat may also inform implementation of some Federal laws such as the Clean Water Act. These laws analyze the potential for projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
We have determined that there would be little educational and informational benefit gained from including Roosevelt Lake within the designation because this area is well known as an important area for southwestern willow flycatcher and western yellow-billed cuckoo management and recovery. For example, extensive southwestern willow flycatcher research has occurred at Roosevelt Lake through much of the late 1990s and early 2000s by USGS, Reclamation, and AGFD; the Roosevelt Dam HCP was developed in 2003; periodic news articles were published on the development of the Roosevelt Dam HCP; and the Roosevelt Lake area was proposed as southwestern willow flycatcher critical habitat in 2004 and excluded in 2005 and as western yellow-billed cuckoo critical habitat in 2014. Additionally, since the mid-1990s, SRP, USFS, Reclamation, AGFD, and the Service have met annually to discuss the status and ongoing management of the southwestern willow flycatcher and western yellow-billed cuckoo in the Roosevelt Lake area. Consequently, informational benefits informing the public and partners about the value of Roosevelt Lake for both listed bird species will continue into the future.
The benefits of excluding the area within the high-water mark of Roosevelt Dam from being designated as critical habitat are considerable, and include the conservation measures described above (land acquisition, management, and habitat development) and those associated with implementing conservation through enhancing and developing partnerships.
The implementation of the Roosevelt HCP has and will continue to help generate important status and trend information, acquire additional mitigation lands, and help on-the-ground management of Roosevelt Lake western yellow-billed cuckoos and their habitat (SRP 2012b, pp. 15-16). In addition to these specific western yellow-billed cuckoo conservation actions, the development and implementation of this HCP provides regular monitoring of western yellow-billed cuckoo habitat, distribution, and abundance over the 50-year permit.
Because of the importance of the Roosevelt Lake conservation space for water storage, there is no expectation that any considerable development or changes to the landscape would result in reducing the overall water storage space, and therefore the overall ability to develop riparian vegetation.
Roosevelt Dam operations, implemented through the HCP permit continue to sustain local populations of western yellow-billed cuckoo by sustaining suitable habitat for the species. Western yellow-billed cuckoo populations have persisted within the high water mark at Roosevelt Lake throughout increases and decreases in water storage as well as along streams adjacent to Roosevelt Lake (Salt River, Tonto Creek, Pinal Creek, and Cherry Creek). The expanding and contracting western yellow-billed cuckoo habitat within the lake combined with dynamic habitat along adjacent streams support the overall western yellow-billed cuckoo population within the Roosevelt Lake area.
Failure to exclude Roosevelt Lake could be a disincentive for other entities contemplating partnerships, as it would be perceived as a way for the Service to impose additional regulatory burdens once conservation strategies have already been agreed to through our permitting process. Private entities are motivated to work with the Service collaboratively to develop voluntary HCPs because of the regulatory certainty provided by an incidental take permit under section 10(a)(1)(B) of the Act with the “No Surprises” assurances. This collaboration often provides greater conservation benefits than could be achieved through strictly regulatory approaches, such as critical habitat designation. The conservation benefits resulting from this collaborative approach are built upon a foundation of mutual trust and understanding. Excluding this area from critical habitat will help promote and honor that trust by providing greater certainty for permittees that once appropriate conservation measures have been agreed to and consulted on for the western yellow-billed cuckoo that additional consultation will not be necessary. SRP has proven to be a valuable and responsible partner to the Service in leading, innovating, and implementing large- and small- scale conservation efforts in Arizona.
Through the development of the Roosevelt Dam HCP, we have generated additional partnerships with SRP and its stakeholders by developing collaborative conservation strategies for the western yellow-billed cuckoo and the habitat upon which it depends for breeding, sheltering, foraging, migrating, and dispersing. The strategies within the Roosevelt HCP seek to achieve conservation goals for the western yellow-billed cuckoo and its habitat, and will achieve greater conservation benefit than the designation of critical habitat and multiple site-by-site, project-by-project, section 7 consultations, which is unlikely to require specific actions. Continued cooperative relations with SRP and its stakeholders are expected to influence other future partners. The benefits of excluding lands within the Roosevelt Lake HCP area from critical habitat designation include recognizing the value of conservation benefits associated with HCP actions; encouraging actions that benefit multiple species; encouraging local participation in development of new HCPs; and facilitating the cooperative activities provided by the Service to landowners, communities, and counties in return for their voluntary adoption of the HCP. Concerns over perceived added regulation potentially imposed by critical habitat could harm this collaborative relationship.
Another benefit of excluding Roosevelt Lake from critical habitat includes a small reduction in administrative costs associated with engaging in the critical habitat portion of section 7 consultations. Administrative costs include time spent in meetings, preparing letters and biological assessments, and in the case of formal consultations, the development of the critical habitat component of a biological opinion.
We have determined that the benefits of exclusion of the conservation space of Roosevelt Lake below 2,151 ft (655 m) in elevation from the designation of western yellow-billed cuckoo critical habitat on Federal land managed by the USFS, as identified in the Roosevelt Dam HCP, outweigh the benefits of inclusion because current dam operations and management, and implementation of conservation actions maintain, protect, and conserve western yellow-billed cuckoo habitat. In our determination, we considered and found that the HCP meets our criteria for exclusion for HCPs (see
The benefits of designating critical habitat for the western yellow-billed cuckoo at Roosevelt Lake are relatively low in comparison to the benefits of exclusion. We find that including Roosevelt Lake as critical habitat would result in very minimal, if any, additional benefits to the western yellow-billed cuckoo. Roosevelt Dam operations will continue to foster the maintenance, development, and necessary recycling of habitat for the western yellow-billed cuckoo in the long term due to the dynamic nature of water storage and delivery. USFS management of lands surrounding the lake ensures the maintenance and development of western yellow-billed cuckoo habitat per the HCP. As a result, we anticipate that formal section 7 consultations conducted on critical habitat would only likely result in discretionary conservation recommendations.
The benefits of excluding Roosevelt Lake from inclusion as critical habitat are considerable. Excluding Roosevelt Lake would continue to help foster development of future HCPs and strengthen our partnership with Roosevelt HCP permittees and stakeholders. Excluding Roosevelt Lake also eliminates regulatory uncertainty associated with the permittees' HCP and the operation of Roosevelt Dam for water storage and flood control. The conservation benefits of implementing the Roosevelt HCP are considerable and include significant acquisition and management of western yellow-billed cuckoo habitat, creation of western yellow-billed cuckoo habitat adjacent to Roosevelt Lake, on-the-ground protection of western yellow-billed cuckoo habitat, and long-term monitoring of western yellow-billed cuckoo habitat and territories. These conservation measures are substantial and will result in greater western yellow-billed cuckoo conservation benefits than what could be accomplished from a project-by-project evaluation through the incremental benefits of a critical habitat designation. Also, excluding Roosevelt Lake will eliminate some additional, but minimal, administrative effort and cost during the consultation process pursuant to section 7 of the Act.
After weighing the benefits of including Roosevelt Lake as western yellow-billed cuckoo critical habitat against the benefit of exclusion, we have concluded that the benefits of excluding
As mentioned above, during development of the western yellow-billed cuckoo critical habitat designation, SRP requested that all of their western yellow-billed cuckoo mitigation properties purchased before the publication of our final critical habitat designation, be designated as critical habitat. The mitigation properties are not located within the Roosevelt lakebed, and may benefit from section 7 consultation on their management. Therefore, based upon the comments received from SRP and the likely benefit of future section 7 consultation, the mitigation properties acquired by SRP along the San Pedro, Gila, and Verde Rivers are included in this final designation as western yellow-billed cuckoo critical habitat.
We find that the exclusion of the conservation space of Roosevelt Lake will not lead to the extinction of the western yellow-billed cuckoo, nor hinder its recovery because Roosevelt Dam operations combined with the preservation of open space within the lake and USFS land management under the HCP will ensure the long-term persistence and protection of western yellow-billed cuckoo habitat at Roosevelt Lake. In addition, as discussed above under Effects of Critical Habitat Designation
Several Executive Orders, Secretarial Orders, and policies concern working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control tribal lands, emphasize the importance of developing partnerships with tribal governments, and direct the Service to consult with Tribes on a government-to-government basis.
A joint Secretarial Order that applies to both the Service and the National Marine Fisheries Service (NMFS), Secretarial Order 3206,
However, S.O. 3206 does not preclude us from designating tribal lands or waters as critical habitat, nor does it state that tribal lands or waters cannot meet the Act's definition of “critical habitat.” We are directed by the Act to identify areas that meet the definition of “critical habitat” (
We identified 534 ac (216 ha) of critical habitat that occurs on Yavapai-Apache Nation lands within portions of the Verde River, Beaver Creek, and West Clear Creek (Unit 7: AZ-5, Upper Verde River; Unit 9: AZ-7, Beaver Creek; and Unit 10: AZ-8, Lower Verde River and West Clear Creek). The Yavapai-Apache Nation completed a Southwestern Willow Flycatcher Management Plan in 2005, and updated their plan in 2012 (Yavapai-Apache Nation 2012, entire). The plan was originally developed for the southwestern willow flycatcher but has been revised to include western yellow-billed cuckoo.
Prior to the incursion of non-Indians into their territory, the Yavapai-Apache Nation notes that their people lived and prospered for many centuries along the Verde River and its tributaries without depleting the river system or harming its riparian habitat and the many plant and animal species it supports (Montgomery & Interpreter, PLC 2020, p. 2). Today, the Yavapai-Apache Nation Reservation is only a small portion of lands considered as historical Yavapai-Apache Nation lands and currently totals a little over 1,800 ac (728 ha) in Arizona. The Verde River and its tributaries serve as a primary source of the Nation's water supply and is integral in the preservation of the Nation's values. The Nation has implemented strong conservation measures on the Reservation to preserve the Verde River for the benefit of all species and to protect the practices of the Nation. The Yavapai-Apache Nation is aware of the threats facing the Verde River and adjacent lands and their impacts on the riparian habitat and food availability as well as its suitability for western yellow-billed cuckoo nesting, migrating, food, cover, and shelter (Montgomery & Interpreter, PLC 2020, p. 2).
The Nation continues to preserve those portions of the Verde River, Beaver Creek, and West Clear Creek under its jurisdiction along with the plants and animals associated with the river. On June 15, 2006, the Nation enacted Tribal Resolution No. 46-2006 formally designating a “Riparian
The Nation has taken steps to protect western yellow-billed cuckoo habitat along the Verde River, Beaver Creek, and West Clear Creek through zoning, implementing tribal ordinances and code requirements.
The purpose of the Nation's Flycatcher Management Plan as updated to include western yellow-billed cuckoo is to promote the physical and biological features that will maintain southwestern willow flycatcher and western yellow-billed cuckoo habitat. The strategy of the plan is not to allow any net loss or permanent impacts to western yellow-billed cuckoo habitat by implementing measures from the Service's Southwestern Willow Flycatcher Recovery Plan. Recreation and access to riparian areas will be managed to ensure no net loss of habitat. Fire within riparian areas will be suppressed and vegetation managed by reducing fire risks. The Nation will cooperate with the Service to monitor and survey habitat for breeding and migrating western yellow-billed cuckoos, conduct research, and manage habitat.
Since 2005, the Yavapai-Apache Nation has concluded that through implementation of their plan, there has been no net loss of western yellow-billed cuckoo habitat. Since 2005, no cattle grazing has occurred within the Verde River corridor. If any future grazing is permitted, it will be conducted appropriately with fences, and in a manner to protect western yellow-billed cuckoo habitat quality. The Nation has also installed measurement devices to evaluate the depth of the Verde River groundwater in order to address river flows necessary to maintain or improve the riparian habitat quality (Montgomery & Interpreter 2020 PLC pp. 7-8). Also, no new access roads or recreation sites have been created. Similarly, any new housing areas have been directed to avoid construction within the river corridor.
The Yavapai-Apache Nation has conducted continued education, information gathering, and partnering and emphasized the importance of protecting the Verde River within tribal youth education programs. The Yavapai-Apache Nation has also continued to strengthen its partnership with the Service by meeting and coordinating efforts on the Service's goals for conservation on the Verde River. The Nation has committed to cooperatively discussing and examining future projects with the Service that could impact the western yellow-billed cuckoo or its habitat.
As discussed above under Effects of Critical Habitat Designation
We have conducted informal consultations with agencies implementing actions on tribal lands, provided tribes technical assistance on project implementation, and the Corps has coordinated with tribes and pueblos on projects within the area. However, overall since listing of the southwestern willow flycatcher as endangered in 1995 and the western yellow-billed cuckoo in 2014 as threatened, formal section 7 consultations have been rare on tribal lands. Because of how tribes and pueblos have chosen to manage and conserve their lands and the lack of past section 7 consultation history, we do not anticipate a noticeable increase in section 7 consultations in the future, nor that such consultations would significantly change the current management of western yellow-billed cuckoos or its habitat. Therefore, the effect of a critical habitat designation on these lands is minimized.
Were we to designate critical habitat on these tribal lands, our section 7 consultation history indicates that there may be some, but few, regulatory benefits to the western yellow-billed cuckoo. As described above, even with southwestern willow flycatchers and western yellow-billed cuckoos occurring on these tribal lands, the frequency of formal section 7 consultations has been rare. Projects initiated by Federal agencies in the past were associated with maintenance of rights-of-way or water management such as those initiated by Federal Highway Administration or Reclamation. When we review projects addressing the western yellow-billed cuckoo pursuant to section 7 of the Act in Arizona, we commonly examine conservation measures associated with the project for consistency with strategies described within the Southwestern Willow Flycatcher Recovery Plan due to the two species overlapping and using similar habitat. Where there is consistency with managing habitat and implementing conservation measures recommended in the recovery plan, it would be unlikely that a consultation would result in a determination of adverse modification of critical habitat. Therefore, when the threshold for adverse modification is not reached, only additional conservation recommendations could result out of a section 7 consultation, but such measures would be discretionary on the part of the Federal agency.
Another important benefit of including lands in a critical habitat designation is that the designation can serve to inform and educate landowners and the public regarding the potential conservation value of an area, and it may help focus management efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. However, the southwestern willow flycatcher has been listed since 1995, and western yellow-billed cuckoo has been a candidate species since 2001. As a result the Yavapai-Apache Nation has been and is currently working with the Service to conserve southwestern willow flycatcher and western yellow-billed cuckoo habitat, participate in working groups, and exchange management information. These regulatory developments already ensure that the Yavapai-Apache Nation and others are fully aware of the importance of listed riparian bird habitat and conservation. Given that these regulatory actions have already informed the public about the value of these areas and helped to focus potential conservation actions, the educational benefits from designating critical habitat would be small.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Tribes or pueblos often seek additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for southwestern willow flycatcher and western yellow-billed cuckoo habitat-related projects. However, areas where nesting, migrating, dispersing, or foraging western yellow-billed cuckoos occur, as is the case here, may also provide benefits when projects are evaluated for receipt of funding.
Therefore, because of the development and implementation of a management plan, habitat conservation, rare initiation of formal section 7 consultations, the occurrence of breeding and migrant western yellow-billed cuckoos on tribal lands, and overall coordination with tribes on western yellow-billed cuckoo related issues, it is expected that there may be some, but limited, benefits from including these tribal lands in a western yellow-billed cuckoo critical habitat designation. The principal benefit of any designated critical habitat is that activities in and affecting such habitat require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid destruction or adverse modification of critical habitat.
The benefits of excluding the Yavapai-Apache Nation lands from designated critical habitat include: (1) Our deference to the Tribe to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Tribe to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Tribe and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
During the development of the western yellow-billed cuckoo critical habitat proposal (and coordination for other critical habitat proposals) and other efforts such as implementing measures identified in the Southwestern Willow Flycatcher Recovery Plan (applicable to western yellow-billed cuckoos in central Arizona), we have met and communicated with the Yavapai-Apache Nation to discuss how they might be affected by the regulations associated with listing and designating critical habitat for the western yellow-billed cuckoo. As such, we have established a beneficial relationship to support western yellow-billed cuckoo conservation. As part of our relationship, we have provided technical assistance to the Yavapai-Apache Nation to develop measures to conserve the western yellow-billed cuckoo and their habitat on their lands. These measures are contained within the management plan developed by the Yavapai-Apache Nation. We have determined that the Yavapai-Apache Nation should be the governmental entity to manage and promote western yellow-billed cuckoo conservation on their lands. During our coordination efforts with the Yavapai-Apache Nation, we recognized and endorsed their fundamental right to provide for tribal resource management activities, including those relating to riparian habitat.
As stated above, the Yavapai-Apache Nation has developed and implemented a management plan specific to western yellow-billed cuckoo and its habitat. The Yavapai-Apache Nation has expressed that their lands, and specifically riparian habitat, are connected to their cultural and religious beliefs, and as a result they have a strong commitment and reverence toward its stewardship and conservation and have common goals with the Service on species and habitat conservation. The management plan identifies actions to maintain, improve, and preserve riparian habitat. The Yavapai-Apache Nation has also implemented a review processes for activities occurring in riparian zones and restricted or limited certain actions that would impact resources from occurring or implement conservation measures to minimize, or eliminate adverse impacts. Overall, the commitments toward management of western yellow-billed cuckoo habitat by the Yavapai-Apache Nation likely accomplish greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-project basis.
The designation of critical habitat on Yavapai-Apache Nation lands would be expected to have an adverse impact on our working relationship with the Nation. The designation of critical habitat would be viewed as an intrusion and impact their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. These impacts include, but are not limited to: (1) Interfering with the sovereign and constitutional rights of the Nation to protect and control its own resources on the Reservation; (2) undermining the positive and effective government-to-government relationship between the Nation and the Service—a relationship that serves to protect federally listed species and their habitat; and (3) hampering or confusing the Nation's own long-standing protections for the Verde River and its habitat. The perceived restrictions of a critical habitat designation could have a damaging effect on coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the western yellow-billed cuckoo and other species. For these reasons, we have determined that our working relationships with the Nation would be better maintained if we excluded their lands from the designation of western yellow-billed cuckoo critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship with the Yavapai-Apache Nation for the mutual benefit of the western yellow-billed cuckoo and other endangered and threatened species.
In addition, we anticipate future management plans to include additional conservation efforts for other listed species and their habitats may be hampered if critical habitat is designated on tribal lands being managed for sensitive species conservation. We have determined that many other tribes and pueblos are willing to work cooperatively with us and others to benefit other listed and sensitive species, but only if they view the relationship as mutually beneficial. Consequently, the development of future voluntarily management actions for other listed species may be compromised if these tribal lands are designated as critical habitat for the western yellow-billed cuckoo. Thus, a benefit of excluding these lands would be future conservation efforts that
The benefits of including Yavapai-Apache Nation tribal lands in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other law and regulations. However, due to the rarity of Federal actions resulting in formal section 7 consultations, the benefits of a critical habitat designation are minimized. In addition, the benefits of consultation are further minimized because any conservation measures which may have resulted from consultation are already provided through other mechanisms, such as (1) the conservation benefits to the western yellow-billed cuckoo and their habitat from implementation of the Yavapai-Apache Nation management plans; and (2) the maintenance of effective collaboration and cooperation to promote the conservation of the southwestern willow flycatcher and western yellow-billed cuckoo and their habitat.
Because the Yavapai-Apache Nation has developed a specific management plan, has been involved with the critical habitat designation process, and is aware of the value of their lands for western yellow-billed cuckoo conservation, the educational benefits of a western yellow-billed cuckoo critical habitat designation are also minimized.
By allowing the Yavapai-Apache Nation to implement its own resource conservation programs it gives the Nation the opportunity to manage their natural resources to benefit riparian habitat for the western yellow-billed cuckoo, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of these areas will likely also provide additional benefits to the western yellow-billed cuckoo and other listed species that would not otherwise be available without the Service's maintaining a cooperative working relationships with the Yavapai-Apache Nation. The actions taken by the Nation to manage and protect habitat needed for western yellow-billed cuckoo are above those conservation measures which may be required if the area was designated as critical habitat. As a result, we have determined that the benefits of excluding these tribal lands from critical habitat designation outweigh the benefits of including these areas.
We have determined that exclusion of the Yavapai-Apache Nation tribal lands from the critical habitat designation will not result in the extinction of the western yellow-billed cuckoo. We base this determination on several points. Firstly, as discussed above under Effects of Critical Habitat Designation
We identified approximately 12,533 ac (5,646 ha) for the western yellow-billed cuckoo as critical habitat on San Carlos Apache Tribe lands within Pinal, Gila, and Graham Counties, Arizona in Unit 22 (10,183 ac (4,121 ha)), Unit 28 (1,436 ac (581 ha)), and Unit 17 (729 ac (295 ha)). As a results of comments and coordinating with the Tribe, we received additional land ownership information that identified additional lands owned by the San Carlos Apache. The revised proposed designation should have identified an additional 185 ac (75 ha) along the Lower San Pedro River between Aravaipa Creek and the Gila River confluence in Unit 17 totaling 914 ac (370 ha). However, due additional revisions of the area considered as critical habitat between the revised proposed rule and this final designation, we removed areas upstream of Prophyry Gulch on the Gila River from Unit 17. Therefore, the total area of Tribal lands we are excluding in Unit 17 is approximately 445 ac (184 ha).
The San Carlos Reservoir and surrounding land up to elevation 2,535 ft (773 m)) is Federal land owned by the Bureau of Indian Affairs (BIA), which owns and operates the reservoir and Coolidge Dam site. The facilities are operated for storage and delivery of irrigation water as part of the Central Arizona Water Project. The dam and reservoir are surrounded by San Carlos Apache tribal lands. In our revised proposed rule, we misidentified the BIA lands as San Carlos Apache tribal lands. This ownership issue has been corrected in this final rule.
Unit 22 (Gila River 1) and Unit 28 (Gila River 2) are located upstream of San Carlos Reservoir on the Gila River where it enter the reservoir and near where Eagle Creek enters the river respectively. Unit 17 (Lower San Pedro and Gila River) is located downstream of San Carlos Reservoir. Unit 27 (Aravaipa Creek) flows into the lower San Pedro River. When at full capacity the San Carlos Reservoir contains 867,400 ac-ft (1.07 cubic km) of water, making it one of the largest lakes in Arizona. However, due to water demand and the seasonal, flashy nature of river flows into the reservoir result in the lake rarely fills and its water levels fluctuate dramatically (LCR MSCP 2004, p. 12). Total dry-up of the reservoir has been recorded over 21 times with two of those times occurring in the last five
The San Carlos Apache Recreation and Wildlife Department conduct surveys for western yellow-billed cuckoo, but population size and territory information are the proprietary information of the San Carlos Apache Tribe. An unknown number of western yellow-billed cuckoos occur upstream of the San Carlos Reservoir on the Gila River and on Eagle Creek within tribal boundaries although the habitat appears to be suitable. Western yellow-billed cuckoos occur downstream and upstream of the San Carlos Apache Reservation on the Gila River. Recent surveys in 2016 and 2019 confirm presence of a breeding western yellow-billed cuckoos on the Gila River and in Eagle Creek (Andreson 2016b, entire; WestLand Resources, Inc. 2019, entire; and Cornell Lab of Ornithology 2020 (eBird data)). The San Carlos Apache parcels along lower Aravaipa Creek and the lower San Pedro River between Aravaipa Creek and the Gila River confluence are within a riparian corridor occupied by western yellow-billed cuckoos (Service 2013, pp. 349, 387). These small parcels are likely within the home range of foraging and breeding western yellow-billed cuckoos.
The San Carlos Apache Tribe Recreation and Wildlife Department (SCATRWD) administers recreational use permits for nontribal members on San Carlos Apache tribal lands including the San Carlos lake bottom (SCATRWD 2009, entire). The SCATRWD has identified specific numbered areas or units of their land where their various rules and regulations apply. The SCATRWD administers fishing licenses for San Carlos Reservoir, but does not include Federal land within the conservation space of San Carlos Reservoir. Other than a store and marina located closer toward Coolidge Dam and adjacent to the reservoir, no paved roads, developed camping areas, or other designed recreation centers ae located within the San Carlos Reservoir conservation space.
As discussed above under Effects of Critical Habitat Designation
The Gila River, Eagle Creek, and San Carlos Apache parcels are known to be occupied by western yellow-billed cuckoos, and therefore, if a Federal action or permitting occurs, there is a nexus for evaluation under section 7 of the Act. In addition, any water delivery or operational activities associated with Coolidge Dam by the BIA or Reclamation would also be subject to section 7 consultation for both the listing and critical habitat. For example, in 2003, Reclamation initiated consultation under section 7 of the Act, on a proposed water exchange between the San Carlos Apache Tribe and the Central Arizona Project. We completed a biological opinion (Service 2004, entire). The only consultation on Eagle Creek (near Unit 28 (Gila River 2)) involved an upstream fish barrier and a BLM grazing plan. However, our recent records show that no other formal consultation on western yellow-billed cuckoos has occurred for actions associated with San Carlos Reservoir or water operations. As described above, even with western yellow-billed cuckoos occurring throughout this portion of the Gila River, the frequency of formal section 7 consultations for western yellow-billed cuckoo has been rare. We do not anticipate a noticeable increase in section 7 consultations in the future, nor any significant change to the current management of western yellow-billed cuckoos or its habitat resulting from consultations.
Another important benefit of including lands in a critical habitat designation is that it can serve to educate landowners, agencies, tribes, and the public regarding the potential conservation value of an area, and may help focus conservation efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable.
However, the southwestern willow flycatcher has been listed since 1995, and western yellow-billed cuckoo has been a candidate species since 2001. These regulatory developments already ensured that the San Carlos Apache Tribe, GRIC, Reclamation, BIA, State of Arizona and others are fully aware of the importance of San Carlos Reservoir to listed riparian bird habitat and conservation due to their involvement in the water transfer consultations. The GRIC is made up of members of both the Akimel O'odham (Pima) and the Pee-Posh (Maricopa) tribes. The Akimel O'otham name for the yellow-billed cuckoo is Kathgam. The Pee-Posh general term for birds is 'chiyer. The GRIC and the San Carlos Apache Tribe have a long standing record for conserving habitat for sensitive species. Given that these regulatory actions have already informed the public about the value of these areas and helped to focus potential conservation actions, the educational benefits from designating critical habitat would be small.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
The benefits of excluding the Gila River Indian Community and the San Carlos Apache Tribe lands from designated critical habitat include: (1) Our deference to the Tribe to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Tribe to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Tribe and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
The San Carlos Reservoir was acquired by BIA for the purpose of water storage for the Gila River Indian Community and the San Carlos Apache Tribe. Additionally, San Carlos Reservoir has become an important part of the San Carlos Apache Tribe society because it generates income through its recreational value, and nearby stores, lodging, and gaming facilities, thereby becoming a significant trust asset to both Gila River Indian Community and the San Carlos Apache Tribe. During the development of the southwestern willow flycatcher and western yellow-billed cuckoo critical habitat designations and recovery implementation, we have met and communicated with the GRIC and San Carlos Apache Tribe to discuss how they might be affected and measures they make take as a result of these actions. As a result, the San Carlos Apache Tribe submitted a Flycatcher Management Plan that is compatible with western yellow-billed cuckoo management (San Carlos Apache Tribe 2005, entire). During our communication with these tribes, we recognized and endorsed their fundamental right to provide for tribal resource management activities, including those relating to riparian habitat. The designation of critical habitat would be expected to have an adverse impact on the working relationship for conservation that we have developed with the GRIC and the San Carlos Apache Tribe. During our discussions and in the comments we received from the Tribes on the proposed designation of critical habitat, we were informed that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws, and in the case of GRIC, a potential impact to their federally mandated water deliveries. The perceived future restrictions (whether realized or not) of a critical habitat designation could have a damaging effect to coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the western yellow-billed cuckoo and other listed species. For these reasons, we have determined that our working relationships with these the GRIC and San Carlos Apache Tribe would be better maintained if the critical habitat areas identified on tribal lands on the Gila River, Eagle Creek, lower San Pedro River and Federal lands within the San Carlos Reservoir owned by BIA and managed by the San Carlos Apache Tribe are excluded from the final designation. We view this as a substantial benefit since we have developed a cooperative working relationship with these tribes for the mutual benefit of western yellow-billed cuckoo conservation and other endangered and threatened species.
The benefits of designating the areas identified as critical habitat within the Gila River, Eagle Creek, and Federal lands at San Carlos Reservoir on the San Carlos Apache Reservation; and the San Carlos Apache parcels on lower San Pedro River and Aravaipa Creek are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, as well as agency and educational awareness, and implementation of other laws and regulations. However, we have determined that these benefits are minimized because the species is listed as threatened and there is a lack of Federal actions occurring within the tribal lands and conservation space of San Carlos Reservoir; the operation of Coolidge Dam that supports western yellow-billed cuckoo habitat it influences; and the limited discretion BIA may have with Coolidge Dam operations. Because of this overall awareness by tribal, Federal, and State entities, we have determined that there is little educational benefit or support for other environmental laws and regulations attributable to western yellow-billed cuckoo critical habitat beyond those achieved from listing the species under the Act.
The benefits of excluding these areas from designation as critical habitat also include the importance of our partnerships and working relationships with the San Carlos Apache and Gila River Indian Community, as well as our responsibility to afford reasonable protection of Native American trust assets. While San Carlos Reservoir is Federal land, the water resources it supports are essential components to both the San Carlos Apache Tribe and Gila River Indian Community. These tribes play an important partnership role in managing their lands for western yellow-billed cuckoo recovery. Without their cooperation, land management, and ability to share information, achieving western yellow-billed cuckoo conservation would be difficult on Tribal lands. Our conservation partnership with tribes also includes the advancement and support of our Federal Indian Trust obligations and the maintenance of effective collaboration and cooperation to promote the conservation of the western yellow-billed cuckoo and its habitat. In conclusion, we find that the benefits of excluding the Gila River, Eagle Creek, and San Carlos Reservoir Lakebed on San Carlos Apache Reservation; and San Carlos Apache parcels on lower San Pedro River and Aravaipa Creek from the final critical habitat designation outweigh the benefits of including these areas.
We have determined that exclusion of critical habitat from the areas identified on the Gila River, Eagle Creek, and San Carlos Reservoir Lakebed on San Carlos Apache Reservation and San Carlos Apache parcels on lower San Pedro River and Aravaipa Creek will not result in the extinction of the western yellow-billed cuckoo. We base this determination on several points. Firstly, as discussed above under Effects of Critical Habitat Designation
Secondly, the San Carlos Apache are committed to protecting and managing for the western yellow-billed cuckoo and its habitat. We have determined that this commitment accomplishes greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-project basis. We have determined that excluding these lands
The Shoshone-Bannock tribal lands on the Fort Hall Reservation are located in Bingham, Bannock, Caribou, and Power Counties in Idaho, and approximately 2,527 ac (1,023 ha) of western yellow billed cuckoo critical habitat with Unit 65 has been identified on their lands. Riparian cottonwood forest occurs on approximately 1 percent of the Fort Hall Reservation and is primarily found along the Snake River in (the area known as) the Fort Hall bottoms. The Shoshone-Bannock Tribes have a demonstrated track record of maintaining these lands for natural resources through implementation of their Woodland Management Plan (WMP) and draft Integrated Resource Management Plan (IRMP).
The WMP was finalized in 2008 and identifies management guidance for specific forest types to maintain long-term sustainability of woodlands on the Fort Hall Reservation. The plan identifies actions that contribute to the conservation of cottonwood forest habitat important to western yellow billed-cuckoos including reducing the risk of wildfire, increasing cottonwood regeneration, decreasing the spread of nonnative plants, and maintaining and improving riparian conditions. Specific habitat improvements undertaken as the result of the WMP include fencing riparian areas to exclude them from livestock grazing and completing noxious and invasive weed treatments.
Additionally, the Shoshone-Bannock Tribes are implementing the draft IRMP which promotes an integrated review process for project planning and implementation across the tribe's resource departments. Although still in draft form, the IRMP has been used regularly with a great deal of success in delivering conservation as part of project reviews. The review process contains special consideration for any project occurring within the habitat for any special status or listed species and appropriate mitigation of potential impacts is developed by the Shoshone-Bannock Tribes' Fish and Wildlife Department. Significant changes in riparian cottonwood habitat conditions on the Fort Hall Reservation have not occurred over the past decade and existing habitat conditions are not expected to change, except for those positive projected habitat programs the Shoshone-Bannock Tribes are undertaking, in the near or long term.
Effects of Critical Habitat Designation
Our section 7 consultation history within the Shoshone-Bannock Tribes show that since listing in 2014, no formal consultations have occurred for actions conducted on tribal lands. We have conducted an informal consultation with Reclamation implementing actions which affect tribal lands; however, overall, since listing in 2014, section 7 consultations have been rare on tribal lands. Because of how the Shoshone-Bannock Tribes have chosen to manage and conserve their lands and the lack of past section 7 consultation history, we do not anticipate that the Shoshone-Bannock Tribes' actions would change considerably, generate a noticeable increase in section 7 consultations, and that the consultations would significantly change the current management of western yellow-billed cuckoos or their habitat.
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners and the public regarding the potential conservation value of an area, and it may help focus management efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. The Shoshone-Bannock Tribes are currently working to survey western yellow-billed cuckoo habitat, participate in working groups, and exchange management information. Because the Shoshone-Bannock Tribes have developed the WMP and are aware of the value of their lands for western yellow-billed cuckoo conservation, the educational benefits of a western yellow-billed cuckoo critical habitat designation are minimized.
Another possible benefit of the designation of critical habitat is that it may inform implementation of Federal laws such as the Clean Water Act (33 U.S.C. 1251-1376). These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. The Shoshone-Bannock Tribes have coordinated for additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects. However, areas where nesting, migrating, dispersing, or foraging western yellow-billed cuckoos occur, as is the case here, may also provide benefits when projects are evaluated for receipt of funding.
Therefore, because of the implementation of the WMP and IRMP conservation, rare initiation of formal section 7 consultations, the occurrence of western yellow-billed cuckoo on the Fort Hall Reservation, and overall coordination with the Shoshone-Bannock Tribes on western yellow-billed cuckoo-related issues, it is expected that there may be some, but limited, benefits from including Fort Hall Reservation tribal lands in a western yellow-billed cuckoo critical habitat designation. The principal benefit of any designated critical habitat is that activities in and affecting such habitat require consultation under section 7 of the Act for adverse modification. Such consultation would still be required due to the species being listed as threatened regardless of the
The benefits of excluding Shoshone-Bannock tribal lands on the Fort Hall Reservation from designated critical habitat include: (1) Our deference to the Tribe to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Tribe to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Tribe and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
During the development of the western yellow-billed cuckoo critical habitat proposal and in exercise of our trust responsibility to the Tribes, we have met and communicated with the Shoshone-Bannock Tribes to discuss how they might be affected by the regulations associated with western yellow-billed cuckoo management, recovery actions, and the designation of critical habitat. As such, we established relationships specific to western yellow-billed cuckoo conservation. As part of our relationship, we have provided technical assistance to the Shoshone-Bannock Tribes to conserve the western yellow billed cuckoo and its habitat on their lands. The Shoshone-Bannock Tribes included measures within the WMP and IRMP that we have in our supporting record for this decision. We have determined that the Shoshone-Bannock Tribes should be the governmental entities to manage and promote western yellow-billed cuckoo conservation on their lands. During our communication with the Shoshone-Bannock Tribes, we recognized and endorsed their fundamental right to provide for tribal resource management activities, including those relating to riparian habitat.
The Shoshone-Bannock Tribes' WMP and IRMP address western yellow-billed cuckoo habitat. The proposed critical habitat segment we identified on lands managed by the Shoshone-Bannock Tribes are where western yellow-billed cuckoo have been recorded. The Shoshone-Bannock Tribes have expressed that their lands, and specifically riparian habitat, are connected to their cultural and religious beliefs, and as a result they have a strong commitment and reverence toward its stewardship and conservation. The WMP and IRMP identify actions that contribute to the conservation of cottonwood forest habitat important to western yellow billed-cuckoo including; reducing the risk of wildfire, increasing cottonwood regeneration, decreasing the spread of nonnative plants, and maintaining and improving riparian conditions. Specific habitat improvements undertaken as the result of the WMP include fencing riparian areas to exclude them from livestock grazing and completing noxious and invasive weed treatments. Through the IRMP the Shoshone-Bannock Tribes also have project-by-project review processes in place that allow evaluation and implementation of conservation measures to minimize, or eliminate adverse impacts. The Shoshone-Bannock Tribes have natural resource departments, which have experienced biologists, conduct western yellow-billed cuckoo surveys, and maintain databases on the quality of habitat throughout tribal lands and the status and occurrence of western yellow-billed cuckoo. Having this information available to the Shoshone-Bannock Tribes creates effective conservation through any project review process. The implementation of their WMP and IRMP has been coordinated and approved through appropriate tribal processes, such as tribal councils. Overall, these commitments toward management of riparian habitat likely accomplish greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-project basis.
The designation of critical habitat on the Shoshone-Bannock Tribes lands would be expected to have an adverse impact on our working relationship with the Shoshone-Bannock Tribes. The perceived restrictions of a critical habitat designation could have a damaging effect on coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the western yellow-billed cuckoo and other species. For these reasons, we have determined that our working relationships with the Shoshone-Bannock Tribes would be better maintained if we excluded their lands from the designation of western yellow-billed cuckoo critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship with the Shoshone-Bannock Tribes for the mutual benefit of western yellow-billed cuckoo conservation and other endangered and threatened species.
We indicated in the proposed rule that our final decision regarding the exclusions of tribal lands under 4(b)(2) of the Act would consider tribal management and the recognition of their capability to appropriately manage their own resources, and the government-to-government relationship of the United States with tribal entities (85 FR 11458; February 27, 2020 p. 11512). We also acknowledged our responsibilities to work directly with tribes in developing programs for healthy ecosystems, that tribal lands are not subject to the same controls as Federal public lands, our need to remain sensitive to Indian culture, and to make information available to tribes (85 FR 11458; February 27, 2020 p. 11504).
We coordinated and communicated with the Shoshone-Bannock Tribes throughout the proposal of western yellow-billed cuckoo critical habitat by providing them information on implementation of section 4(b)(2) of the Act; guidance and review; related documents, and public hearings; and our interest in consulting with them on a government-to-government basis at their request. We also followed up our correspondence with telephone calls and electronic mail to assist with any questions. During the comment period, we received input from the Shoshone-Bannock Tribes expressing the view that designating western yellow-billed cuckoo critical habitat on tribal land would adversely affect the Service's working relationship with all tribes. We conclude that our working relationships with these tribes on a government-to-government basis have been extremely beneficial in implementing natural resource programs of mutual interest, and that these productive relationships would be compromised by critical habitat designation of these tribal lands.
We have determined that the Shoshone-Bannock Tribes are willing to work cooperatively with us and others to benefit listed species, but only if they view the relationship as mutually beneficial. Consequently, the development of future voluntarily management actions for other listed species may be compromised if these tribal lands are designated as critical habitat for the western yellow-billed cuckoo. Thus, a benefit of excluding these lands would be future
The benefits of including the Shoshone-Bannock Tribes lands in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other laws and regulations. However, due to the rarity of Federal actions resulting in formal section 7 consultations, the benefits of a critical habitat designation are minimized. In addition, the benefits of consultation are further minimized because any conservation measures which may have resulted from consultation are already provided through other mechanisms, such as (1) the conservation benefits to the western yellow-billed cuckoo and their habitat from implementation of the Reservation's WMP and IRMP; and (2) the maintenance of effective collaboration and cooperation to promote the conservation of the western yellow-billed cuckoo and its habitat.
Because the Shoshone-Bannock Tribes have developed specific management plans, has been involved with the critical habitat designation process, and is aware of the value of their lands for western yellow-billed cuckoo conservation, the educational benefits of a western yellow-billed cuckoo critical habitat designation are also minimized.
The benefits of excluding these areas from being designated as western yellow-billed cuckoo critical habitat are more significant and include encouraging the continued implementation of Shoshone-Bannock Tribes management and conservation measures such as monitoring, survey, habitat management and protection, and fire-risk reduction activities that are planned for the future or are currently being implemented. These programs will allow the Shoshone-Bannock Tribes to manage their natural resources to benefit riparian habitat for the western yellow-billed cuckoo, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of these areas will likely also provide additional benefits to the western yellow-billed cuckoo and other listed species that would not otherwise be available without the Service's maintaining a cooperative working relationship with the Shoshone-Bannock Tribes. The actions taken by the Shoshone-Bannock Tribes to manage and protect habitat needed for western yellow-billed cuckoo are above those conservation measures which may be required if the area was designated as critical habitat. In conclusion, we find that the benefits of excluding the Fort Hall Reservation lands (Shoshone-Bannock Tribes) in Idaho, from critical habitat designation outweigh the benefits of including these areas.
We have determined that exclusion of the Shoshone-Bannock Tribal lands from the final critical habitat designation will not result in the extinction of the western yellow-billed cuckoo. We base this determination on several points. Firstly, as discussed above under Effects of Critical Habitat Designation
Ohkay Owingeh is located just north of Espanola in Rio Arriba County New Mexico, and adjoins the lands of Santa Clara Pueblo. The Pueblo includes the southern or downstream end of the Velarde reach of the Rio Grande, and comprises the largest contiguous area of generally intact bosque, as well as the largest riparian area under the control of a single landowner, within the Velarde reach. On Ohkay Owingeh, we are excluding 1,313 ac (531 ha) of critical habitat.
Dating back to 1993, upon observing the presence of the southwestern willow flycatcher, the Pueblo began restoring the bosque habitat and associated wetlands specifically for the southwestern willow flycatcher. Habitat within the Pueblo had been much degraded relative to historical conditions for two main reasons: (1) River channelization that has caused floodplain desiccation, cessation of overbank flooding, and disruption of geomorphological processes; and (2) intensive invasion by nonnative trees, primarily Russian olives. The increasing frequency and severity of fires in the Rio Grande bosque, accompanied by changes in vegetation and the water regime, underscores the urgency of the restoration needs.
Ohkay Owingeh immediately began restoration/conservation projects to benefit the southwestern willow flycatcher in 1994, with restoration/conservation occurring over approximately 4 ac (1.6 ha) of Ohkay Owingeh lands. Since 1999, the Pueblo has initiated or completed a variety of restoration/conservation projects, including further wetland creation and expansion, southwestern willow flycatcher habitat enhancement with vegetation and open water, and removal of non-native vegetation with replacement of native vegetation. These projects are funded through various programs of the Environmental Protection Agency, Wildland Urban Interface/Collaborative Forest Restoration Program, Middle Rio Grande Endangered Species Act Collaborative Program, Service Partners for Fish and Wildlife Program, and the State of New Mexico; they affect 744 riparian ac (301 riparian ha) on the Pueblo with direct and indirect benefits to the southwestern willow flycatcher. The project implementations include conservation, monitoring, and management for the southwestern willow flycatcher into the future. These efforts contribute to the long term goals of recovery for the southwestern willow flycatcher. In addition to the habitat work, the Pueblo supports southwestern willow flycatcher surveys and nest monitoring on the Pueblo lands. Though past work has targeted southwestern willow flycatchers, restoration efforts also provide benefit to the western yellow-billed cuckoos. It is because of
As discussed above under Effects of Critical Habitat Designation
Since 1993, the section 7 consultations involving Ohkay Owingeh for the southwestern willow flycatcher, New Mexico meadow jumping mouse, or western yellow-billed cuckoo have all been informal (with the exception of one formal consultation). Effects to the southwestern willow flycatcher, New Mexico meadow jumping mouse, and/or western yellow-billed cuckoo from these projects have been insignificant and discountable because conservation measures have focused on restoration and management for the species and its habitat.
Another possible benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable. However, the Pueblo is already working with the Service to address the habitat needs of the species. For these reasons, then, we have determined that designation of critical habitat would have few, if any, additional benefits beyond those that will result from continued consultation for the presence of the species.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
The benefits of excluding the Pueblo from designated critical habitat are significant. We have determined that the significant benefits that would be realized by foregoing the designation of critical habitat on this area include: (1) Our deference to the Pueblo to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Pueblo to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Pueblo and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
We have determined that Ohkay Owingeh should be the governmental entity to manage and promote the conservation of the western yellow-billed cuckoo on their land as indicated in Secretarial Order 3206; the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2).
We find that other conservation benefits are provided to the Upper Rio Grande Unit and the western yellow-billed cuckoo and its habitat by excluding the Pueblo from the designation. For example, as part of maintaining a cooperative working relationship with the Pueblo, conservation benefits, including listed species' surveys, nest and/or habitat monitoring, and/or habitat restoration and enhancement have been possible. Ohkay Owingeh submitted comments on October 14, 2014, indicated that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. To this end, we found that the Pueblo would prefer to work with us on a Government-to-Government basis. For these reasons, we have determined that our working relationship with the Pueblo would be maintained if they are excluded from the designation of critical habitat for the western yellow-billed cuckoo. We view this as a substantial benefit.
Proactive voluntary conservation efforts have and will continue to promote the recovery of the western yellow-billed cuckoo. As mentioned above, the Pueblo is an important land manager in the Upper Rio Grande Unit. The consultation history, surveys, and conservation, restoration and management information historically submitted by the Pueblo documents that meaningful collaborative and cooperative work for listed species and their habitat will continue within their lands. These commitments demonstrate the willingness of the Pueblo to work cooperatively with us toward conservation efforts that will benefit the western yellow-billed cuckoo. The Pueblo has committed to several ongoing or future management, restoration, enhancement, and survey activities that may not occur with critical habitat designation. Therefore, we have determined that the results of these activities will promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within the Pueblo lands. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of data-sharing and management plans. If this area is designated as critical habitat, we have determined that it is unlikely that sharing of information would occur.
The long-term goal of riparian management on Ohkay Owingeh is to make significant additions of wetland areas for listed species, as well as implement innovative restoration techniques, decrease fire hazards by restoring native vegetation, share information with other restoration practitioners, use restoration projects in the education of the tribal community and surrounding community, and provide a working and training environment for the people of the Pueblo.
Based on their traditional beliefs and ties to the bosque area, the Pueblo continues to protect, conserve, and restore the riparian species and their habitat. As is demonstrated through their projects, the Pueblo has invested a
Because the Pueblo has a lengthy history of managing and restoring habitat for sensitive species, has been involved with the critical habitat designation process, and is aware of the value of their lands for western yellow-billed cuckoo conservation, the educational benefits of a western yellow-billed cuckoo critical habitat designation are also minimized.
In summary, the benefits of including the Pueblo in critical habitat are low, and are limited to insignificant educational benefits. The benefits of excluding these areas from designation as critical habitat for the western yellow-billed cuckoo are significant, and include encouraging the continued development and implementation of special management measures such as monitoring, surveys, enhancement, and restoration activities that the Pueblo plans for the future or is currently implementing. These activities and projects will allow the Pueblo to manage their natural resources to benefit the Upper Rio Grande Unit and the western yellow-billed cuckoo, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of this area will likely also provide additional benefits to the species that would not otherwise be available to encourage and maintain cooperative working relationships. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area.
We have determined that exclusion of the Pueblo land will not result in extinction of the species. Firstly, as discussed above under Effects of Critical Habitat Designation
On Santa Clara Pueblo, we proposed 141 ac (57 ac) of critical habitat within this unit in Rio Arriba County, New Mexico. The entire area is considered occupied at the time of listing. The Pueblo has joined with San Ildefonso Pueblo and Ohkay Owingeh to work with the Corps to complete large scale environmental restoration and floodplain management on their lands. As a result, Santa Clara Pueblo is already restoring all habitat proposed as critical habitat for western yellow-billed cuckoos with the exception of 4 ac (1.6 ha) which are agricultural lands. We have a productive working relationship with Santa Clara Pueblo and coordinated with them during the critical habitat designation process.
As discussed above under Effects of Critical Habitat Designation
Another possible benefit is that the designation of critical habitat can serve to educate the landowner and public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Tribes or Pueblos often seek additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
The benefits of excluding the Pueblo from designated critical habitat are significant. The proposed critical habitat designation included areas of riparian woodland, or bosque, within the Pueblo boundaries. We have determined that the significant benefits that would be realized by foregoing the designation of critical habitat on this area include: (1) Our deference to the Pueblo to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Pueblo to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Pueblo and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
We have determined that Santa Clara Pueblo should be the governmental entity to manage and promote the conservation of the western yellow-billed cuckoo on their land as indicated in Secretarial Order 3206; Executive Order 13175; and the relevant provision
We find that other conservation benefits are provided to the Upper Rio Grande Unit and the western yellow-billed cuckoo and its habitat by excluding the Pueblo from the designation. For example, the objective of Santa Clara Pueblo's management of their land is to protect, conserve, and promote the well-being of listed species and their associated habitats within the Pueblo's boundaries. As part of maintaining a cooperative working relationship with the Pueblo, conservation benefits, including listed species' surveys, nest and/or habitat monitoring, and/or habitat restoration and enhancement have been possible. In comments submitted by Santa Clara Pueblo on October 13, 2014, we were informed that critical habitat would be viewed as unnecessary and offensive to impose extra regulatory burdens upon us when they are voluntarily and proactively managing their lands to provide benefit to the western yellow-billed cuckoo. The Pueblo would prefer to work with us on a Government-to-Government basis. For these reasons, we have determined that our working relationship with the Pueblo would be maintained if they are excluded from the designation of critical habitat for the western yellow-billed cuckoo. We view this as a substantial benefit.
Proactive voluntary conservation efforts have and will continue to promote the recovery of the western yellow-billed cuckoo. As mentioned above, the Pueblo is an important land manager in the Upper Rio Grande Unit. The consultation conservation, restoration and management information historically submitted by the Pueblo documents that meaningful collaborative and cooperative work for listed species and their habitat will continue within their lands. These commitments demonstrate the willingness of the Pueblo to work cooperatively with us toward conservation efforts that will benefit the western yellow-billed cuckoo. The Pueblo has committed to several ongoing or future management, restoration, enhancement, and survey activities that may not occur with critical habitat designation. Therefore, we have determined that the results of these activities will promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within the Pueblo lands. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of data-sharing and management plans. If this area is designated as critical habitat, we have determined that it is unlikely that sharing of information would occur.
The benefits of including Pueblo in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other law and regulations. However, due to the rarity of Federal actions resulting in formal section 7 consultations, the benefits of a critical habitat designation are minimized. In addition, the Pueblo will continue to protect its bosque habitat and does not intend to develop the areas used by western yellow-billed cuckoo as critical habitat. Moreover, as part of their history, the Santa Clara Pueblo has conducted a variety of voluntary measures, restoration projects, and management actions to conserve riparian vegetation, including protecting riparian habitat from fire, maintaining native vegetation, and preventing habitat fragmentation. The Pueblo is already working with the Service to address the habitat needs of the species. This working relationship will be better maintained if Santa Clara Pueblo was excluded from the designation. We view this as a substantial benefit since we have developed a cooperative working relationship for the mutual benefit of endangered and threatened species, including the western yellow-billed cuckoo. Because the Pueblo has implemented habitat conservation and restoration efforts, and is aware of the value of their lands for western yellow-billed cuckoo conservation, the educational benefits of a western yellow-billed cuckoo critical habitat designation are also minimized. For these reasons, we have determined that designation of critical habitat would have few, if any, additional benefits beyond those that will result from the presence of the species.
In summary, the benefits of including the Pueblo in critical habitat are low, and are limited to insignificant educational benefits. The benefits of excluding these areas from designation as critical habitat for the western yellow-billed cuckoo are significant, and include encouraging the continued development and implementation of special management measures such as monitoring, surveys, enhancement, and restoration activities that the Pueblo plans for the future or is currently implementing. These activities and projects will allow the Pueblo to manage their natural resources to benefit the Upper Rio Grande Unit and the western yellow-billed cuckoo, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of this area will likely also provide additional benefits to the species that would not otherwise be available to encourage and maintain cooperative working relationships. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area.
We have determined that exclusion of the Pueblo land will not result in extinction of the species. Firstly, as discussed above under Effects of Critical Habitat Designation
San Ildefonso Pueblo, is located in Rio Arriba County New Mexico, and adjoins the lands of Santa Clara Pueblo. On San Ildefonso Pueblo, we proposed 1,032 ac (418 ha) of critical habitat.
In 2011, an addendum to the Pueblo's 2005 Integrated Resource Management Plan (IRMP) was revised and adopted to provide for long term management of the Tribe's natural resources, including the southwestern willow flycatcher's habitat. The addendum to the Pueblo's IRMP specifically addresses measures to
As discussed above under Effects of Critical Habitat Designation
Another possible benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Tribes or Pueblos often seek additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
The benefits of excluding the Pueblo from designated critical habitat are significant. We have determined that the significant benefits that would be realized by foregoing the designation of critical habitat on this area include: (1) Our deference to the Pueblo to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Pueblo to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Pueblo and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
Educational benefits will be provided to the Pueblo lands if they are excluded from the designation, because their past and ongoing restoration projects, with management goals, provide for conservation benefits above any that would be provided by designating critical habitat. For example, the educational aspects are similar for this area if they are not included in the designation because the Pueblo will continue to work cooperatively toward the conservation of the riparian ecosystem, and we have determined that based on their history of conservation, that this will also benefit the western yellow-billed cuckoo.
The exclusion from critical habitat will further support and maintain our cooperative working relationship with the Pueblo, and provide conservation benefits, including implementing habitat restoration and enhancements above those which have already been implemented. During past discussions with the Pueblo, we were informed that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. For these reasons, we have determined that our working relationship with the Pueblo would be maintained if they are excluded from the designation of critical habitat for the western yellow-billed cuckoo. We view this as a substantial benefit.
Protection of river and riparian habitat resources remains an important component of the Pueblo's culture and traditions. The Pueblo will continue to protect riparian habitat on tribal land through its existing programs and agreements.
The long-term goal of riparian management on San Ildefonso Pueblo is to make significant additions of wetland areas for breeding southwestern willow flycatchers, as well as implement innovative restoration techniques, decrease fire hazards by restoring native vegetation, share information with other restoration practitioners, use restoration projects in the education of the tribal community and surrounding community, and provide a working and training environment for the people of the Pueblo. These efforts will also provide benefit to the western yellow-billed cuckoo.
Based on their traditional beliefs and ties to the bosque area, the Pueblo continues to protect, conserve, and restore the riparian species and their habitat. The Pueblo has invested ongoing time and effort to address the needs and recovery of the southwestern willow flycatcher and we have determined that, based on this history, that the Pueblo will also invest time and effort in conservation for the western
Proactive voluntary conservation efforts have and will continue to promote the recovery of the western yellow-billed cuckoo. As mentioned above, the Pueblo is an important land manager in the Upper Rio Grande Unit. The commitments in the IRMP demonstrate the willingness of the Pueblo to work cooperatively with us toward conservation efforts that will benefit listed species. The Pueblo has committed to several ongoing or future management, restoration, enhancement, activities that may not occur with critical habitat designation. Therefore, we have determined that the results of these activities will promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within the Pueblo lands. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of data-sharing and management plans.
The benefits of including the Pueblo in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other law and regulations. The benefits of including the Pueblo in critical habitat are low, and are limited to minor educational benefits. However, due to the rarity of Federal actions resulting in formal section 7 consultations, the benefits of a critical habitat designation are minimized. The benefits of consultation are further minimized because any conservation measures which may have resulted from consultation are already provided through other mechanisms, such as (1) the conservation benefits to the western yellow-billed cuckoo and their habitat from implementation of the Pueblo's management plans; and (2) the maintenance of effective collaboration and cooperation to promote the conservation of the southwestern willow flycatcher and western yellow-billed cuckoo and their habitat. Because the Pueblo has developed a specific management plan, has been involved with the critical habitat designation process, and is aware of the value of their lands for western yellow-billed cuckoo conservation, the educational benefits of a western yellow-billed cuckoo critical habitat designation are also minimized.
The benefits of excluding these areas from designation as critical habitat for the western yellow-billed cuckoo are significant, and include encouraging the continued development and implementation of special management measures such as enhancement, and restoration activities that the Pueblo plans for the future or is currently implementing. These activities and projects will allow the Pueblo to manage their natural resources to benefit the Upper Rio Grande Unit and the western yellow-billed cuckoo, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of this area will likely also provide additional benefits to the species that would not otherwise be available to encourage and maintain cooperative working relationships. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area.
We have determined that exclusion of the Pueblo land from the designation of critical habitat will not result in extinction of the western yellow-billed cuckoo. We base this determination on several points. Firstly, as discussed above under Effects of Critical Habitat Designation
On Santa Ana Pueblo, we proposed 862 ac (349 ha) of critical habitat within Sandoval County, New Mexico. The entire area is excluded from the final designation.
The Pueblo is an important land manager in the Middle Rio Grande. The Pueblo of Santa Ana has developed and maintained a long standing history of habitat projects and conservation that includes the southwestern willow flycatcher, Rio Grande silvery minnow, and the western yellow-billed cuckoo. The objective of their management program is to protect, conserve, and promote the resources associated with the southwestern willow flycatcher, silvery minnow, and western yellow-billed cuckoo within the Pueblo's boundaries. Over the last 26 years, an estimated 3 formal consultations have occurred and all have been associated with either the Rio Grande silvery minnow or southwestern willow flycatcher. No consultations for western yellow-billed cuckoo have occurred for actions on Santa Ana Pueblo lands. The consultation history, surveys, and conservation, restoration and management information historically submitted by the Pueblo documents that meaningful collaborative and cooperative work for listed species and their habitat that have occurred within their lands. These commitments demonstrate the willingness of the Pueblo to work cooperatively with us toward conservation efforts that will benefit the western yellow-billed cuckoo. The Pueblo has committed to several ongoing or future management, restoration, enhancement, and survey activities that may not occur with critical habitat designation. The Santa Ana Pueblo has completed restoration and conservation efforts, including a Safe Harbor Agreement, for the efforts associated with the southwestern willow flycatcher, and our ongoing conservation partnership. We have determined that the management practices of Santa Ana Pueblo fulfills our criteria for exclusion.
As discussed above under Effects of Critical Habitat Designation
Another possible benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable. However, the Pueblo is already working with the Service to address the habitat needs of the species. For these reasons, then, we have determined that designation of critical habitat would have few, if any, additional benefits beyond those that will result from continued consultation for the presence of the species.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Tribes or pueblos often seek additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
The benefits of excluding the Pueblo from designated critical habitat are significant and include: (1) Our deference to the Pueblo to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Pueblo to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Pueblo and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
We have determined that Santa Ana Pueblo should be the governmental entity to manage and promote the conservation of the western yellow-billed cuckoo on their land. In comments submitted on October 21, 2014, the Santa Ana Pueblo indicated that they would discourage designation of critical habitat on their lands. During our discussions with Santa Ana Pueblo in development of this final designation, it became clear to the Service that a critical habitat designation on Santa Ana land would be viewed as disrespectful and an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. The perceived restrictions of a critical habitat designation could have a more damaging effect to coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the western yellow-billed cuckoo and other endangered or threatened species like the southwestern willow flycatcher and the Rio Grande silvery minnow.
As part of our working relationship with the Pueblo, conservation benefits, including listed species' surveys, nest and/or habitat monitoring, and/or habitat restoration and enhancement have been possible. By excluding critical habitat from the Santa Ana Pueblo, we have determined that our working relationship with the Pueblo would be maintained. We view this as a substantial benefit.
Therefore, we have determined that the results of these activities will promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within the Pueblo lands. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of data-sharing and management plans.
The benefits of including the Pueblo in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other law and regulations. However, due to the rarity of Federal actions resulting in formal section 7 consultations (an estimated 3 formal consultations over the last 26 years and all associated with either Rio Grande silvery minnow or southwestern willow flycatcher), the benefits of a critical habitat designation are minimized. In addition, the benefits of consultation are further minimized because any conservation measures which may have resulted from consultation are already provided through other mechanisms, such as (1) the conservation benefits to the western yellow-billed cuckoo and their habitat from implementation of the Pueblo's management plans; and (2) the maintenance of effective collaboration and cooperation to promote the conservation of the southwestern willow flycatcher and western yellow-billed cuckoo and their habitat.
The Pueblo will continue to protect its bosque habitat and does not intend to develop the areas we proposed as western yellow-billed cuckoo critical habitat. Moreover, under the historical and present management program, the Pueblo has conducted a variety of voluntary measures, restoration projects, monitoring programs and management actions to conserve riparian vegetation, including protecting riparian habitat from fire, maintaining native vegetation, completing surveys, working with BIA, Reclamation, USFS, the State of New Mexico, and the Service to acquire funding for restoration projects, and preventing habitat fragmentation.
For these reasons, we have determined that our working relationship will be better maintained if Santa Ana Pueblo was excluded from the designation of western yellow-billed cuckoo critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship for the mutual benefit of endangered and threatened species, including the western yellow-billed cuckoo.
In summary, the benefits of including the Pueblo in critical habitat are low, and are limited to insignificant educational benefits. The benefits of excluding these areas from designation as critical habitat for the western yellow-billed cuckoo are significant, and include encouraging the continued development and implementation of special management measures such as monitoring, surveys, enhancement, and restoration activities that the Pueblo
We have determined that exclusion of the Pueblo land will not result in extinction of the species. First, activities on this area that may affect the western yellow-billed cuckoo will require consultation under section 7 of the Act. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species. Therefore, even without critical habitat designation on this land, activities that occur on this land cannot jeopardize the continued existence of the western yellow-billed cuckoo. Second, the Pueblo is committed to protecting and managing Pueblo lands and species found on those lands according to their tribal and cultural management plans and natural resource management objectives, which provide conservation benefits for the species and its habitat. In short, the Pueblo is committed to greater conservation measures on their land than would be available through the designation of critical habitat. Accordingly, we have determined that the 862 ac (349 ha) of Pueblo lands of Santa Ana be excluded under subsection 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species.
On Santo Domingo Tribal Lands, we proposed 1,872 ac (758 ha) of critical habitat within Sandoval County, New Mexico. We are excluding the Santo Domingo Tribe from this final designation. The Tribe is an important land manager in the Middle Rio Grande. Their history of conservation includes completing surveys, providing for conservation, management, and restoration of habitat, and working in a meaningful, collaborative, and cooperative approach toward listed species conservation. To document this the Santo Domingo Tribe has developed a Western Yellow-billed Cuckoo Management Plan. We have determined that the plan fulfills our criteria for exclusion. Under the comprehensive Western Yellow-billed Cuckoo Management Plan, the Santo Domingo Tribe has conducted a variety of voluntary measures, restoration projects, and management actions to conserve riparian vegetation, including native vegetation enhancement, promotion of overbank flooding, pollution monitoring, species surveys and creating side channels, oxbows and wetlands. Despite conducting these activities, the consultation history with the Service has been minimal (1 formal consultation involving the Rio Grande silvery minnow dating back to 1995).
As discussed above under Effects of Critical Habitat Designation
Another possible benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Tribes or pueblos often seek additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
The benefits of excluding the Tribe from designated critical habitat include: (1) Our deference to the Pueblo to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Pueblo to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Pueblo and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
We have determined that Santo Domingo Tribe should be the governmental entity to manage and promote the conservation of the western yellow-billed cuckoo on their land. The designation of critical habitat on Santo Domingo would be expected to have an adverse impact on our working relationship. From comments we received from Santo Domingo Pueblo on September 16, 2019, on the proposed designation of critical habitat for the western yellow-billed cuckoo, it became clear to the Service that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. The perceived restrictions of a critical habitat designation could have a more damaging effect to coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the western yellow-billed.
We find that other conservation benefits are provided to the Middle Rio Grande Unit and the western yellow-billed cuckoo and its habitat by excluding the Tribe from the designation. For example, as part of maintaining a cooperative working
Proactive voluntary conservation efforts have and will continue to promote the recovery of the western yellow-billed cuckoo. As mentioned above, the Tribe is an important land manager in the Middle Rio Grande Unit. The history in completing surveys, conservation, restoration and management documents that meaningful collaborative and cooperative work for listed species and their habitat will continue within their lands. These commitments demonstrate the willingness of the Tribe to work cooperatively with us toward conservation efforts that will benefit the western yellow-billed cuckoo. The Tribe has committed to several ongoing or future management, restoration, enhancement, and survey activities that may not occur with critical habitat designation. Therefore, we have determined that the results of these activities will promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within the Tribal lands. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of data-sharing and management plans.
The benefits of including the Tribe in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other law and regulations. However, due to the rarity of Federal actions resulting in formal section 7 consultations (one formal consultation since 1995), the benefits of a critical habitat designation are minimized. In addition, the benefits of consultation are further minimized because any conservation measures which may have resulted from consultation are already provided through other mechanisms, such as (1) the conservation benefits to the western yellow-billed cuckoo and their habitat from implementation of the Tribe's Western Yellow-billed Cuckoo Management Plan; and (2) the maintenance of effective collaboration and cooperation to promote the conservation of the western yellow-billed cuckoo and its habitat. We view these as substantial benefits since we have developed a cooperative working relationship with the Tribe for the mutual benefit of endangered and threatened species, including the western yellow-billed cuckoo. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area.
We have determined that exclusion of the Tribal land will not result in extinction of the species. Firstly, as discussed above under Effects of Critical Habitat Designation
We proposed 1,458 ac (590 ha) of Cochiti Pueblo as critical habitat along the Rio Grande. We excluding all of Cochiti Pueblo lands from the final designation.
The Cochiti Pueblo has a demonstrated productive working relationship with the Service in conservation of listed species and we are aware of Cochiti Pueblo's history of conducting a variety of voluntary measures, restoration projects, and management actions to conserve riparian vegetation, including the prevention of riparian habitat from fire, maintaining native vegetation, and preventing habitat fragmentation. These measures shows the commitment and history of activities being implemented by the Pueblo for meaningful, collaborative, and cooperative work for conservation of listed species. This history demonstrates the willingness of the Pueblo to work cooperatively with us toward conservation efforts that will benefit the western yellow-billed cuckoo. The Pueblo has committed to several ongoing or future management, restoration, enhancement, and survey activities on their lands. However, dating back to 1989, there have been just two formal consultations and they were associated with the Rio Grande silvery minnow and Bald eagle (
As discussed above under Effects of Critical Habitat Designation
Another possible benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Tribes or pueblos often seek additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
The benefits of excluding Cochiti Pueblo from designated critical habitat include: (1) Our deference to the Pueblo to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Pueblo to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Pueblo and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
We have determined that Cochiti Pueblo should be the governmental entity to manage and promote the conservation of the western yellow-billed cuckoo on their land. During our coordination with Cochiti Pueblo on February 25, 2020, during the development of this final designation, we were informed that the Pueblo prefers exclusion of its lands from critical habitat and the ability to manage their lands as appropriate for their cultural needs and traditional values. Proactive voluntary conservation efforts have and will continue to promote the recovery of the western yellow-billed cuckoo. As mentioned above, the Pueblo is an important land manager in the Middle Rio Grande Unit and historically has provided for conservation of listed species including the western yellow-billed cuckoo. The Pueblo has committed to several ongoing or future management, restoration, enhancement, and survey activities that may not occur with critical habitat designation. Therefore, we have determined that the results of these activities will promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within the Pueblo lands. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of data-sharing and management plans. We view this as a substantial benefit.
The benefits of including the Pueblo in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other law and regulations. However, due to the rarity of Federal actions resulting in formal section 7 consultations (two formal consultations since 1989), the benefits of a critical habitat designation are minimized. In addition, the benefits of consultation are further minimized because any conservation measures which may have resulted from consultation are already provided through other mechanisms, such as (1) the conservation benefits to the western yellow-billed cuckoo and their habitat from actions being implemented by the Pueblo; and (2) the maintenance of effective collaboration and cooperation to promote the conservation of the western yellow-billed cuckoo and its habitat. We view these as substantial benefits since we have developed a cooperative working relationship with the Pueblo for the mutual benefit of endangered and threatened species, including the western yellow-billed cuckoo.
Because the Pueblo has developed a history of conservation activities for the western yellow-billed cuckoo, has been involved with the critical habitat designation process, and is aware of the value of their lands for western yellow-billed cuckoo conservation, the educational benefits of a western yellow-billed cuckoo critical habitat designation are also minimized.
By allowing the Pueblo to implement its own resource conservation programs, it gives the Pueblo the opportunity to manage their natural resources to benefit riparian habitat for the western yellow-billed cuckoo, without the perception of Federal Government intrusion. The exclusion of these areas will likely also provide additional benefits to the western yellow-billed cuckoo and other listed species that would not otherwise be available without the Service's maintaining a cooperative working relationships with the Pueblo. The actions taken by the Pueblo to manage and protect habitat needed for western yellow-billed cuckoo are above those conservation measures which may be required if the area was designated as critical habitat. As a result, we have determined that the benefits of excluding these tribal lands from critical habitat designation outweigh the benefits of including these areas. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area.
We have determined that exclusion of the Pueblo land will not result in extinction of the species. We base this determination on several points. Firstly, as discussed above under Effects of Critical Habitat Designation
In short, Cochiti Pueblo is committed to greater conservation measures on their land than would be available through the designation of critical habitat. We have determined that this commitment accomplishes greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-project basis. Accordingly,
On San Felipe Pueblo, we proposed 2,368 ac (958 ha) of critical habitat within Sandoval County, New Mexico. We are excluding the entire area from the final designation of critical habitat.
The San Felipe Pueblo has a demonstrated productive working relationship with the Service in conservation of listed species and we are aware of San Felipe Pueblo's history of conducting a variety of voluntary measures, restoration projects, and management actions to conserve riparian vegetation, including conducting listed species' surveys, nest and habitat monitoring, and habitat restoration and enhancement through the Pueblo's development and implementation of their Wildlife Management Plan specific to the western yellow-billed cuckoo. The objective of this plan is to protect, conserve, and promote the management of the western yellow-billed cuckoo and their associated habitats within the Pueblo's boundaries. The development and implementation of the plan demonstrates the Pueblo's willingness to work cooperatively with the Service and other partners on conservation efforts that will benefit the western yellow-billed cuckoo.
As discussed above under Effects of Critical Habitat Designation
Another possible benefit is that the designation of critical habitat can serve to educate the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable. However, the Pueblo is already working with the Service to address the habitat needs of the species. For these reasons, then, we have determined that designation of critical habitat would have few, if any, additional benefits beyond those that will result from continued consultation for the presence of the species.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Tribes or pueblos often seek additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
We have determined that significant benefits would be realized by foregoing the designation of critical habitat. These benefits include: (1) Our deference to the Pueblo to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Pueblo to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Pueblo and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
We have determined that San Felipe Pueblo should be the governmental entity to manage and promote the conservation of the western yellow-billed cuckoo on their land due to the additional conservation benefits that would be provided for the western yellow-billed cuckoo and its habitat by excluding the Pueblo from the designation. Comments submitted by San Felipe Pueblo on December 19, 2014, informed us that a critical habitat designation would limit the ability of the Pueblo to manage their lands and restrict their cultural needs and traditional values, and recommended exclusion. For these reasons, we have determined that our working relationship with the Pueblo would be better maintained if they are excluded from the designation of critical habitat for the western yellow-billed cuckoo. We view this as a substantial benefit. The perceived restrictions of a critical habitat designation could have a more damaging effect to coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the western yellow-billed cuckoo and other endangered or threatened species like the southwestern willow flycatcher.
Proactive voluntary conservation efforts have and will continue to promote the recovery of the western yellow-billed cuckoo. As mentioned above, the Pueblo is an important land manager in the Middle Rio Grande Unit. The consultation history, surveys, and conservation, restoration and management information historically submitted by the Pueblo documents that meaningful collaborative and cooperative work for listed species and their habitat will continue within their lands. These commitments demonstrate the willingness of the Pueblo to work cooperatively with us toward conservation efforts that will benefit the western yellow-billed cuckoo. Overall, the commitments toward management of western yellow-billed cuckoo habitat by the Pueblo likely accomplish greater conservation than would be available through the implementation of a designation of critical habitat on a project-by-project basis.
The Pueblo has committed to several ongoing or future management, restoration, enhancement, and survey activities that may not occur with critical habitat designation. Therefore, we have determined that the results of these activities will promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within the Pueblo lands. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of data-sharing and management plans.
The benefits of including the Pueblo in the critical habitat designation are limited to the incremental benefits
We have determined that our working relationship will be better maintained if San Felipe Pueblo was excluded from the designation of western yellow-billed cuckoo critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship for the mutual benefit of endangered and threatened species, including the western yellow-billed cuckoo.
In summary, the benefits of including the Pueblo in critical habitat are low, and are limited to insignificant educational benefits. The benefits of excluding these areas from designation as critical habitat for the western yellow-billed cuckoo are significant, and include encouraging the continued development and implementation of special management measures such as monitoring, surveys, enhancement, and restoration activities that the Pueblo plans for the future or is currently implementing. These activities and projects will allow the Pueblo to manage their natural resources to benefit the Middle Rio Grande Unit and the western yellow-billed cuckoo, without the perception of Federal Government intrusion. The exclusion of this area will likely also provide additional benefits to the species that would not otherwise be available to encourage and maintain cooperative working relationships. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area.
We have determined that exclusion of the Pueblo land will not result in extinction of the species. Firstly, as discussed above under Effects of Critical Habitat Designation
On Isleta Pueblo, approximately 2,165 ac (876 ha) of critical habitat was identified within Bernalillo County, New Mexico. We are excluding the entire area from critical habitat. The Isleta Pueblo have developed and implemented a Riverine Management Plan for conservation of riparian resources on their lands (Isleta Pueblo 2015, entire). We have determined that the Isleta Riverine Management Plan fulfills our criteria for exclusion and includes measures to maintain, improve, or restore habitat for the western yellow-billed cuckoo and other endangered or threatened species like the southwestern willow flycatcher, silvery minnow, and New Mexico meadow jumping mouse.
As discussed above under Effects of Critical Habitat Designation
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Tribes or pueblos often seek additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
The benefits of excluding the Pueblo from designated critical habitat are significant and include: (1) Our deference to the Pueblo to develop and implement conservation and natural resource management plans for their
We have determined that Isleta Pueblo should be the governmental entity to manage and promote the conservation of the western yellow-billed cuckoo on their land due to the additional conservation benefits that would be provided for the western yellow-billed cuckoo and its habitat by excluding the Pueblo from the designation. In comments received from the Isleta Pueblo on January 14, 2015, and July 17, 2020, we were informed that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. During our discussions with Isleta Pueblo, they informed us that their perceived restrictions of a critical habitat designation could have a damaging effect to coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the western yellow-billed cuckoo and other endangered or threatened species. For these reasons, we have determined that our working relationship with the Pueblo would be better maintained if they are excluded from the designation of critical habitat for the western yellow-billed cuckoo. For example, as part of maintaining a cooperative working relationship with the Pueblo, conservation benefits, including listed species' surveys, nest and/or habitat monitoring, and/or habitat restoration and enhancement have been possible. We view this as a substantial benefit.
Proactive voluntary conservation efforts have and will continue to promote the recovery of the western yellow-billed cuckoo. The Pueblo of Isleta has developed and maintained a Riverine Management Plan that includes the southwestern willow flycatcher, Rio Grande silvery minnow, New Mexico meadow jumping mouse, and now contains an amendment to include the western yellow-billed cuckoo. The objective of this plan is to protect, conserve, and promote the management of the southwestern willow flycatcher, Rio Grande silvery minnow, and New Mexico meadow jumping mouse and their associated habitats within the Pueblo's boundaries. As mentioned above, the Pueblo is an important land manager in the Middle Rio Grande Unit. The consultation history, surveys, and conservation, restoration and management information historically submitted by the Pueblo documents that meaningful collaborative and cooperative work for listed species and their habitat will continue within their lands. These commitments demonstrate the willingness of the Pueblo to work cooperatively with us toward conservation efforts that will benefit the western yellow-billed cuckoo. The Pueblo has committed to several ongoing or future management, restoration, enhancement, and survey activities that may not occur with critical habitat designation. Therefore, we have determined that the results of these activities will promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within the Pueblo lands. The benefits of excluding this area from critical habitat will encourage the continued cooperation and development of data-sharing and management plans.
The benefits of including Pueblo lands in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other law and regulations. However, as discussed in detail above, we have determined that these benefits are minimized because they are provided through other mechanisms, such as (1) the conservation benefits to the western yellow-billed cuckoo and their habitat from implementation of the Pueblo's management plans; and (2) the maintenance of effective collaboration and cooperation to promote the conservation of the western yellow-billed cuckoo and their habitat.
The Pueblo will continue to protect its bosque habitat and does not intend to develop the areas we proposed as western yellow-billed cuckoo critical habitat. Moreover, under the comprehensive Riverine Management Plan, the Isleta Pueblo has conducted a variety of voluntary measures, restoration projects, and management actions to conserve riparian vegetation, including not allowing cattle to graze within the bosque, protecting riparian habitat from fire, maintaining native vegetation, and preventing habitat fragmentation. For these reasons, we have determined that our working relationship will be better maintained if Isleta Pueblo was excluded from the designation of western yellow-billed cuckoo critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship for the mutual benefit of endangered and threatened species, including the western yellow-billed cuckoo.
In summary, the benefits of including the Pueblo in critical habitat are low, and are limited to insignificant educational benefits. The benefits of excluding these areas from designation as critical habitat for the western yellow-billed cuckoo are significant, and include encouraging the continued development and implementation of special management measures such as monitoring, surveys, enhancement, and restoration activities that the Pueblo plans for the future or is currently implementing. These activities and projects will allow the Pueblo to manage their natural resources to benefit the Middle Rio Grande Unit and the western yellow-billed cuckoo, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of this area will likely also provide additional benefits to the species that would not otherwise be available to encourage and maintain cooperative working relationships. We find that the benefits of excluding this area from critical habitat designation outweigh the benefits of including this area.
We have determined that exclusion of the Pueblo land will not result in extinction of the species. Firstly, as discussed above under Effects of Critical Habitat Designation
The Ute Tribe of the Uintah and Ouray Indian Reservation (Ute Tribe) owns and manages lands along the Green and Duchene Rivers in Uintah and Duchesne Counties, Utah within Unit 70 for the western yellow-billed cuckoo. Since at least 2016, the Ute Tribe has conducted conservation actions for the western yellow-billed cuckoo and its habitat on their lands and lands they manage, as described in the Ute Tribe's Conservation Strategy for the Western Yellow-billed Cuckoo on the Uintah and Ouray Indian Reservation ((Conservation Strategy) Sinclear and Simpson 2016, pp. i-20). The Conservation Strategy outlines conservation measures being implemented by the Ute Tribe including limiting development within 0.5 mi (0.8 ha) of western yellow-billed cuckoo habitat; ensuring that there is no net loss of riparian and wetland areas on Ute Tribal lands; supporting the restoration and enhancement of riparian and wetland areas; establishing a conservation mitigation fund; and designating western yellow-billed cuckoo refuge areas. We coordinated with and assisted the Ute Tribe in the development of the Conservation Strategy in 2016. Due to implementation of the Conservation Strategy, we identified approximately 14,611 ac (5,913 ha) of Ute Tribal lands for exclusion in the revised proposed rule. During the public comment period, we received additional land ownership information from Duchesne County regarding Tribal and other acquired land under tribal management. The acquired lands are lands purchased by the Utah Reclamation Mitigation and Conservation Commission (Mitigation Commission) for the Lower Duchesne Wetlands Mitigation Project, a project implemented due to impacts resulting from construction and operation of the Central Utah Project (Utah Reclamation Mitigation and Conservation Commission
As discussed above under Effects of Critical Habitat Designation
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners and the public regarding the potential conservation value of an area, and it may help focus management efforts on areas of high value for certain species.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Tribes or pueblos often seek additional sources of funding in order to conduct wildlife-related conservation activities. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
The benefits of excluding the Uintah and Ouray Indian Reservation lands from designated critical habitat are significant and include: (1) Our deference to the Tribe to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the western yellow-billed cuckoo and its habitat that might not otherwise occur; (2) the continuance and strengthening of our effective working relationships with the Tribe to promote the conservation of the western yellow-billed cuckoo and its habitat; and (3) the maintenance of effective partnerships with the Tribe and working in collaboration and cooperation to promote additional conservation of the western yellow-billed cuckoo and their habitat.
In working with the Ute Tribe, we have found that fish, wildlife, and other natural resources on tribal lands are better managed under tribal authorities, policies, and programs than through Federal regulation wherever possible and practicable. Additionally, critical habitat designations may be viewed by tribes as an unwanted intrusion into tribal self-governance, thus compromising our working relationship with the Tribe which is essential to achieving our mutual goals of managing for healthy ecosystems upon which the viability of threatened and endangered species populations depend.
The Ute Tribe in coordination with the Service created the Conservation Strategy to addresses threats specific to the western yellow-billed cuckoo, and to provide protective management for the species on Ute Tribal lands. Within their strategy, the Ute Tribe developed
The benefits of including Ute Tribe's lands in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of other law and regulations. However, as discussed in detail above, we have determined that these benefits are minimized because they are provided through other mechanisms, such as (1) the conservation benefits to the western yellow-billed cuckoo and their habitat from implementation of the Ute Tribe's management plans; and (2) the maintenance of effective collaboration and cooperation to promote the conservation of the western yellow-billed cuckoo and their habitat.
The Ute Tribe's Conservation Strategy is expected to provide conservation and long-term management for the western yellow-billed cuckoo outside of the section 7 consultation process and through covering a broader area for the species. We have found that there would be little additional educational benefit gained from designating these Ute Tribal lands as critical habitat because the Ute Tribe is well aware of the species' presence, has developed conservation measures and mitigation methods to minimize development close to western yellow-billed cuckoo habitat, and has provided protection through commitments to restore and enhance riparian areas on Ute Tribal lands.
We have found that the Ute Tribe's Conservation Strategy provides greater protection than critical habitat designation would provide because it is a comprehensive conservation plan that is specific to western yellow-billed cuckoo conservation needs on Ute Tribal lands. The Ute Tribe developed the Conservation Strategy partially in response to the initial proposed designation of critical habitat for the western yellow-billed cuckoo for the purpose of maintaining management and conservation authority, and thus having a final critical habitat designation removed. Therefore, it is likely that the exclusion of Ute Tribal land as designated critical habitat will foster a better partnership and working relationship with the Tribe and implement coordinated efforts to continue conservation of western yellow-billed cuckoo and its habitat.
Because the Ute Tribe has conserved western yellow-billed cuckoos on their lands with implementation of the Conservation Strategy, and will continue to do so, we see no additional benefits to the inclusion of Ute Tribal land in a final critical habitat rule. We have determined that conservation of the western yellow-billed cuckoo will continue to be achieved by the Ute Tribe as has been demonstrated by the proactive conservation from their Conservation Strategy. Given the importance of the Ute Tribe's Conservation Strategy to the current and future conservation of the western yellow-billed cuckoo and our working relationship with the Ute Tribe, the benefit of excluding Ute Tribal lands outweighs the benefit of including them in proposed designated critical habitat. Therefore, we would not expect any additional conservation benefits from the inclusion of Ute Tribal land in a final critical habitat designation, and Ute Tribal lands have been excluded from designation as final critical habitat under section 4(b)(2) of the Act for the western yellow-billed cuckoo.
We have determined that exclusion of the Ute Tribal lands from the critical habitat designation will not result in the extinction of the western yellow-billed cuckoo. We base this determination on several points. Firstly, as discussed above under Effects of Critical Habitat Designation
As explained above, we find that including western yellow-billed cuckoo critical habitat on Ute Tribal land would result in minimal additional benefits to the species. We also find that the exclusion of these lands will not lead to the extinction of the western yellow-billed cuckoo, nor hinder its recovery because of the Ute Tribe's emphasis to protect and enhance riparian habitat for the western yellow-billed cuckoo. This emphasis on conserving riparian habitat on Ute Tribal lands will ensure the long-term conservation of the western yellow-billed cuckoo and contribute to the species' recovery. Accordingly, we have determined that 15,017 ac (6,077 ha) of Uintah and Ouray Indian Reservation lands be excluded under subsection 4(b)(2) of the Act because the benefits of exclusion outweigh the benefits of inclusion and will not cause the extinction of the species.
We have identified approximately 1,352 ac (547 ha) of federally owned, withdrawn, or easement lands associated with the full-pool elevation for the American Falls Reservoir for exclusion from the final critical habitat. The land is comprised of several large parcels of land which were either acquired by Reclamation under fee title, withdrawn from public domain for Reclamation purposes, or granted under prescriptive easement to Reclamation at the time of the construction of American Falls Dam and Reservoir. American Falls Dam and Reservoir comprise a multipurpose facility constructed for the Congressionally-authorized purposes of irrigation and power generation and is part of the larger Minidoka Project. The land is located at the northeastern end of American Falls Reservoir where both the Snake River and McTucker Creek enter the reservoir in Bingham County, Idaho. The area is vegetated to varying degrees by a shifting mosaic of riparian communities, including suitable nesting habitat for the yellow-billed cuckoo. Reclamation has demonstrated a track record of maintaining these lands for natural resources through the implementation of their Ecologically Based System Management (EBSM) approach to the operation of the upstream Palisades Dam, conservation efforts to reduce impacts from livestock grazing, annual planting efforts, and annual noxious weed treatments. The EBSM was implemented in 2004, and mimics historical hydrographs to the greatest extent feasible. Significant changes in riparian cottonwood habitat conditions in the area adjacent to the full-pool have not occurred over the past decade and existing habitat conditions are not expected to change, expect for those positive projected habitat projects Reclamation are undertaking, in the near or long term.
As discussed above under Effects of Critical Habitat Designation
Our section 7 consultation history within Reclamation lands being considered for exclusion, shows that since listing in 2014, no formal consultations have occurred for actions conducted on those lands. We have conducted an informal consultation for the operation and maintenance of Reclamation resources on the Snake River; however, overall, since listing in 2014, section 7 consultations have been rare on this area of Reclamation lands. Because of how Reclamation have chosen to manage and conserve their lands and the lack of past section 7 consultation history, we do not anticipate that Reclamation actions would considerably change in the future, generating a noticeable increase in section 7 consultations or that consultation would cause significant changes to the current management of western yellow-billed cuckoo and its habitat.
Another important benefit of including lands in a critical habitat designation is that the designation can serve to educate landowners and the public regarding the potential conservation value of an area, and it may help focus management efforts on areas of high value for certain species. Any information about the western yellow-billed cuckoo that reaches a wide audience, including parties engaged in conservation activities, is valuable. Reclamation are currently working to maintain and improve western yellow-billed cuckoo habitat, participating in working groups, and exchanging management information.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws.
Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
The main benefit of excluding Reclamation managed lands associated with the American Falls Reservoir from designated critical habitat is to remove any potential conflict with the Congressionally authorized project purposes of the American Fall Reservoir Federal Water Resource Project. We have already developed an effective approach to conservation of the western yellow-billed cuckoo, its habitat, and other species in this area.
During the development of the western yellow-billed cuckoo critical habitat proposal, we have communicated with Reclamation to discuss how they might be affected by the regulations associated with western yellow-billed cuckoo management, western yellow-billed cuckoo recovery, and the designation of critical habitat. As part of these discussions, we have provided technical assistance to Reclamation to conserve the western yellow-billed cuckoo and its habitat on their lands. Reclamation implemented the EBSM and included measures taken in efforts to conserve western yellow-billed cuckoo habitat that we have in our supporting record for this decision.
Reclamation, through their EBSM, address western yellow-billed cuckoo habitat. The proposed critical habitat segment we identified on lands managed by Reclamation are where western yellow-billed cuckoo have been recorded (or are expected to occur). Reclamation have demonstrated that maintaining western yellow-billed cuckoo habitat, while meeting their regulatory obligations is a priority. Reclamation, through their previous management actions and the implementation of the EBSM, have a demonstrated record of their commitment to the conservation of cottonwood forest habitat important to western yellow billed-cuckoo including; reducing impacts from livestock grazing, increasing cottonwood regeneration, decreasing the spread of nonnative plants, and maintaining and improving riparian conditions. Specific habitat improvements previously carried out within this inundation zone include the termination of a 500-unit livestock grazing lease, repairing riparian fencing, the establishment of close working partnerships with adjacent landowners to support exclusion efforts, and completing annual noxious and invasive weed treatments. Lastly, Reclamation precludes construction of permanent structures in this area. Overall, these actions commit to management of riparian habitat that likely accomplishes
The designation of critical habitat on Reclamation lands associated with the full-pool of American Falls Reservoir may potentially impact the Congressionally authorized operation and maintenance of the Federal Water Resource Project. As such, exclusion would reduce the potential conflict and ensure that the Federal Water Resource Project would continue to operate unobstructed. This would further help to maintain our working relationship with Reclamation.
The designation of critical habitat on Reclamation lands would be expected to indirectly impact our working relationship with other water users, since the American River Falls Reservoir is closely tied to water users in Idaho. The perceived restrictions of a critical habitat designation could have a damaging effect on coordination efforts, possibly preventing actions that might maintain, improve, or restore habitat for the western yellow-billed cuckoo and other species. For these reasons, we have determined that our working relationships with water users would be better maintained if we excluded the American River Falls Reservoir from the designation of western yellow-billed cuckoo critical habitat. We view this as a substantial benefit since we have developed a cooperative working relationship with Reclamation for the mutual benefit of western yellow-billed cuckoo conservation and other endangered and threatened species using this area.
The benefits of including Reclamation lands in the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, and potential additional grant funding. However, we have determined that these benefits are minimized because they are provided for through other mechanisms, such as (1) the conservation benefits to the western yellow-billed cuckoo and its habitat from implementation of EBSM and other conservation actions; and (2) the maintenance of effective collaboration and cooperation to promote the conservation of the western yellow-billed cuckoo and its habitat.
Because Reclamation has developed and implemented the EBSM and are aware of the value of their lands for western yellow-billed cuckoo conservation, the conservation and educational benefits of a western yellow-billed cuckoo critical habitat designation are minimized.
The benefits of excluding these areas from being designated as western yellow-billed cuckoo critical habitat are more significant and include avoiding conflict with Congressionally authorized purposes of the reservoir, and encouraging the continued implementation of the EBSM and conservation measures such as habitat management and protection, reduction of livestock impacts, and annul riparian planting efforts. The exclusion of these areas will likely also provide additional benefits to the western yellow-billed cuckoo and other listed species that would not otherwise be available without the Service's maintaining a cooperative working relationship with Reclamation. In conclusion, we find that the benefits of excluding Reclamation lands associated with the full-pool of American Falls Reservoir in Idaho, from critical habitat designation outweigh the benefits of including these areas.
We have determined that exclusion of Reclamation lands associated with the full-pool of American Falls Reservoir from the critical habitat designation are significant and will not result in the extinction of the western yellow-billed cuckoo. We base this determination on several points. Firstly, as discussed above under Effects of Critical Habitat Designation
The Elephant Butte and Caballo Reservoirs (Reservoirs) near Truth or Consequences, in Sierra County, New Mexico are owned and operated by Reclamation. We are excluding portions of the upper reaches of Elephant Butte Reservoir (Unit 37 NM-6B 8,091 ac (3.274 ha)) and the entire Caballo Reservoir (Unit 39 NM-8A and 8B (245 ac (120 ha)) from critical habitat. Reclamation has a Congressionally authorized purpose of managing these reservoirs and delivering water to downstream users. Through their historical conservation efforts and consultation history, Reclamation has demonstrated a commitment to management practices within both Reservoirs that have benefited the western yellow-billed cuckoo population over the past decade and a half while still meeting their Congressionally authorized responsibilities. The riparian habitat within these Reservoirs now supports a large number of nesting western yellow-billed cuckoos. In both these Reservoirs, the filling and draw-down of surface water mimics the flooding and drying events associated with intact riparian woodland habitat and river systems providing habitat for the western yellow-billed cuckoo. However, these areas could also be completely inundated with surface water on occasion and thus, provide no habitat other than what is available in adjacent areas. For Elephant Butte Reservoir, we identified the area from the dam at Elephant Butte Reservoir upstream to RM 54 as the active reservoir pool (as opposed to the full pool location of approximately RM 62). From a practicality standpoint, RM 54 is as far upstream as the reservoir has been modeled to receive surface water over the next 30 years in a scenario providing the wettest conditions (Reclamation 2015, entire; Service 2016b, entire). In the model, the reservoir would reach RM 54 for short intervals of time in 3 separate events.
Reclamation has supported collecting annual western yellow-billed cuckoo population data since 2006 at Elephant Butte Reservoir (even prior to the
Through these efforts, and the recent development in including the western yellow-billed cuckoo within their Management Plan, Reclamation has demonstrated a commitment to management practices within their Reservoirs that have conserved and benefited the western yellow-billed cuckoo population in that area over the past decade and a half. In addition, Reclamation funded scientific research within Elephant Butte Reservoir and surrounding areas that has contributed to the understanding of habitat selection and distribution of the western yellow-billed cuckoo such as telemetry and home range studies, and geolocator studies to better understand migration patterns. Considering the past and ongoing efforts of management and research to benefit the western yellow-billed cuckoo, done in coordination and cooperation with the Service, we find the benefits of excluding areas more prone to surface water inundation within Elephant Butte Reservoir in the Middle Rio Grande Unit and Caballo Delta Units outweigh the benefits of including it in critical habitat.
In addition to the conservation effort described above, Reclamation works with BLM to ensure grazing is minimized during the breeding season for the western yellow-billed cuckoo. They also map habitat characteristics of the riparian habitat in intervals less than 5 years to ensure that suitable habitat for the western yellow-billed cuckoo is not a limiting factor. These long practiced flexible and adaptive management practices are provided as examples which have resulted in the expansion, protection, and successful continuance of a western yellow-billed cuckoo population, and have also provided benefit to other listed species such as the southwestern willow flycatcher.
As discussed above under Effects of Critical Habitat Designation
Another possible benefit is that the designation of critical habitat can serve to educate landowners and the public regarding the potential conservation value of an area, and this may focus and contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. Any information about the western yellow-billed cuckoo and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable.
Another possible benefit of the designation of critical habitat is that it may also affect the implementation of Federal laws, such as the Clean Water Act. These laws require analysis of the potential for proposed projects to significantly affect the environment. Critical habitat may signal the presence of sensitive habitat that could otherwise be missed in the review process for these other environmental laws. Finally, there is the possible benefit that additional funding could be generated for habitat improvement by an area being designated as critical habitat. Some funding sources may rank a project higher if the area is designated as critical habitat. Therefore, having an area designated as critical habitat could improve the chances of receiving funding for western yellow-billed cuckoo habitat-related projects.
We have determined that significant benefits would be realized by excluding areas within Elephant Butte and Caballo Reservoirs. Our reasoning for our determination includes: (1) The management regime and commitments by Reclamation provide a more holistic approach toward implementing conservation actions to protect and enhance western yellow-billed cuckoos and their habitat than a case-by-case section 7 consultation process would provide; and (2) an exclusion would give Reclamation better flexibility to meet its Congressionally authorized responsibilities for water storage and delivery while still providing conservation for the western yellow-billed cuckoo. As mentioned above, Reclamation is an important land manager in the Middle and Lower Rio Grande. The surveys, conservation, restoration and management information submitted by Reclamation within their Southwestern Willow Flycatcher and Yellow-billed Cuckoo Management Plan document that meaningful collaborative and cooperative work for the western yellow-billed cuckoo and its habitat will continue within Elephant Butte and Caballo Reservoirs. We have determined that the results of these activities promote long-term protection and conserve the western yellow-billed cuckoo and its habitat within Elephant Butte and Caballo Reservoirs, as well as the riparian habitat in surrounding areas. Reclamation, through their historical efforts and inclusion of the western yellow-billed cuckoo within their management plan has committed to development of habitat to support nesting activity of the species outside the reservoir pools, this includes items such as realigning approximately 8 mi (12.8 km) of river to mimic the dynamic process of river movement to an area of a lower elevation which will result in roughly 800 ac (324 ha) of potential western yellow-billed cuckoo habitat, as well as roughly 2,000 ac (809 ha) of potential habitat restoration after the large Tiffany Fire in 2017. In all, as a result of the commitments associated with Reclamations' Southwestern Willow Flycatcher and Yellow-billed Cuckoo Management Plan, a potential of approximately 5,500 ac (2,226 ha) of habitat is expected to benefit the western yellow-billed cuckoo.
The benefits of excluding areas within Elephant Butte and Caballo Reservoirs from critical habitat will give Reclamation management flexibility to meet its Congressionally authorized obligations and provide for better conservation than would be achieved from case-by-case section 7 consultations.
The benefits of including the areas within the Middle Rio Grande and Caballo Delta Units In the critical habitat designation are limited to the incremental benefits gained through the regulatory requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat, agency and educational awareness, potential additional grant funding, and the implementation of
The benefits of excluding this area from designation as critical habitat for the western yellow-billed cuckoo are significant, and include allowing Reclamation the flexibility to store and deliver water for this area and encouraging the continuation of adaptive management measures such as monitoring, surveys, research, enhancement, and restoration activities that Reclamation currently implements and plans for the future. The exclusion of this area will likely also provide additional benefits to the species by encouraging and maintaining a cooperative working relationship with stakeholders associated with water storage and delivery. The actions taken by Reclamation to manage and protect habitat needed for western yellow-billed cuckoo are above those conservation measures which may be required if the area was designated as critical habitat. As a result, we find that the benefits of excluding these areas from critical habitat designation outweigh the benefits of including these areas.
We have determined that exclusion of the Reclamation lands at Elephant Butte and Caballo Reservoirs from the critical habitat designation will not result in the extinction of the western yellow-billed cuckoo. We base this determination on several points. Firstly, as discussed above under Effects of Critical Habitat Designation
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
Under the RFA, as amended, and consistent with recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself and, therefore, are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly
During the development of this final rule we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not find that this critical habitat designation would significantly affect energy supplies, distribution, or use, as the areas identified as critical habitat are along riparian corridors in mostly remote areas with little energy supplies, distribution, or infrastructure in place. Moreover, the Administrator of the Office of Information and Regulatory Affairs did not otherwise designate this action as a significant energy action pursuant to the Executive order. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We have determined that this rule will not significantly or uniquely affect small governments because it would not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. By definition, Federal agencies are not considered small entities, although the activities they fund or permit may be proposed or carried out by small entities. Consequently, we have determined that the critical habitat designation would not significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for western yellow-billed cuckoo in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.
In accordance with E.O. 13132 (Federalism), this final rule does not have significant federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this final critical habitat designation with, appropriate State resource agencies in Arizona, California, Colorado, Idaho, New Mexico, Texas, and Utah. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies.
The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the final rule does not have substantial direct effects either on the States, or on the relationship between the National Government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the order. We are designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this rule identifies the elements of physical or biological features essential to the conservation of the species. The designated areas of critical habitat are presented on maps, and the rule provides several options for the interested public to obtain more detailed location information, if desired.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
We invited the public to comment on our draft environmental assessment (Service 2019d, entire) and whether the proposed regulation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We did not receive any comments or other information during the comment period for the revised proposed rule. Our environmental assessment found that the impacts of the proposed critical habitat designation would be minor and not rise to a significant level, so preparation of an environmental impact statement is not required. Copies of our final environmental assessment and Finding of No Significant Impact (Service 2021, entire) can be obtained by contacting the Field Supervisor of the Sacramento Fish and Wildlife Office, or on the Sacramento Fish and Wildlife Office website at
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.
The following Tribes were contacted directly during the proposed and final rule process: Ak-Chin Indian Community; Fort Mojave Indian Tribe; Colorado River Indian Reservation; Fort Yuma Indian Reservation; Cocopah Indian Tribe; Chemehuevi Indian Tribe; Fort McDowell Yavapai Nation; Yavapai-Apache Nation; Yavapi-Prescott Indian Tribe; Tohono O'odham Nation; Tonto Apache Tribe; Havasupai Tribe; Hualapai Indian Tribe; Hopi Tribe; Pasua Yaqui Tribe; San Carlos Apache Tribe; Gila River Indian Community; Salt River Pima-Maricopa Indian Community; White Mountain Apache Tribe; Navajo Nation; Santa Clara, Ohkay Owingeh, and San Ildefonso Pueblos; Cochiti, Santo Domingo, San Felipe, Sandia, Santa Ana and Isleta Pueblos; Shoshone-Bannock, Fort Hall Reservation; the Cachil DeHe Band of Wintun Indians; and the Ute Tribe of the Uinta and Ouray Reservation. We will continue to work on a government-to-government basis with Tribal entities on conservation of habitat after the designation of critical habitat for the western yellow-billed cuckoo.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this final rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and Service staff in each associated Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(b)
(1) Critical habitat units are depicted for Arizona, California, Colorado, Idaho, New Mexico, Texas, and Utah, on the maps in this entry.
(2) Within these areas, the specific physical or biological features essential to the conservation of western yellow-billed cuckoo consist of three components:
(i)
(A)
(B)
(ii)
(iii)
(A)
(B)
(3) Critical habitat does not include humanmade structures (such as buildings, aqueducts, runways, roads, bridges, and other paved or hardened areas as a result of development) and the land on which they are located existing within the legal boundaries of the critical habitat units designated for the species on May 21, 2021. Due to the scale on which the critical habitat boundaries are developed, some areas within these legal boundaries may not contain the physical or biological features and therefore are not considered critical habitat.
(4) Data layers defining map units were created on a base of the Natural Resources Conservation Service National Agriculture Imagery Program (NAIP 2011), and critical habitat was then mapped using North American Datum (NAD) 83, Universal Transverse Mercator Zone 10N coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service's Sacramento Fish and Wildlife Office's internet site at
(5)
(6)
(7)
(8)
(9)
(10)
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(15)
(i)
(ii)
(16)
(17)
(18)
(19)
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(21)
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(i)
(ii)
(39)
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On April 3, 2017, a former Assistant Administrator of the Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to The Pharmacy Place (hereinafter, Respondent) of Plano, Texas. Administrative Law Judge Exhibit 1 (OSC), at 1. The OSC proposed to revoke Respondent's DEA Certificate of Registration No. FT4134805 and deny any pending applications for a modified or new DEA registration pursuant to 21 U.S.C. 823(f) because Respondent's “continued registration is inconsistent with the public interest.”
In response to the OSC, Respondent timely requested a hearing before an Administrative Law Judge. ALJ-5. The first two sessions of the hearing in the matter were held in Dallas, Texas from September 12-13, 2017. The Respondent's expert, however, failed to appear on either of those days. To accommodate the Respondent, the hearing was continued. On November 20, 2017, the hearing reconvened. The November 20, 2017 session of the hearing was conducted by video teleconference from the DEA Hearing Facility in Arlington, Virginia, with the parties and witnesses located at the DEA District Office in San Antonio, Texas.
On February 13, 2018, Administrative Law Judge Charles Wm. Dorman (hereinafter, ALJ) issued the incorporated Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision (hereinafter, Recommended Decision or RD). Respondent filed Exceptions to the Recommended Decision on March 5, 2018, and, with the permission of the ALJ, a Show to the Contrary on March 14, 2018 (hereinafter, collectively Respondent's Exceptions or Exceptions). The Government filed a Response to Respondent's Exceptions and Show to the Contrary on March 28, 2018 (hereinafter, Govt Response). The record was then forwarded to me for final agency action.
On October 18, 2018, the Government filed a Notice of Suggestion of Mootness (hereinafter, Suggestion of Mootness). The Government provided evidence that Respondent had closed and that Respondent's owner had transferred the inventory of controlled substances to a reverse distributor. Suggestion of Mootness, at 2, Exs. 1-3.
Since the Government filed its Suggestion of Mootness, however, the Agency has published two decisions that are directly applicable to the instant matter. The first,
The second,
In this matter, as in
Having determined that this matter should be adjudicated to finality and considered the record in its entirety, including the Respondent's Exceptions and the Govt Response, I have decided to adopt the ALJ's recommended rulings, findings of fact, conclusions of law, and proposed sanction from the Recommended Decision, with minor modifications, where noted herein.
Respondent filed 49 exceptions—19 exceptions to the RD's Findings of Fact and 30 exceptions to the RD's Analysis and Conclusions of Law, the final two of which were expounded upon in greater detail in Respondent's Show to the Contrary.
I find that the majority of Respondent's exceptions to the Findings of Fact do not actually dispute the RD's findings of fact but rather provide explanations, arguments, or interpretations. Consequently, I reject Respondent's Exceptions 1-2, 7, 9, 11-14, and 16-18. I also reject Respondent's Exceptions 3, 6, 8, and 19. I have reviewed the findings of fact to which Respondent objected in those exceptions and have determined that the findings are supported by the administrative record.
I am partially sustaining Respondent's Exceptions 10 and 15. In Exception 10, Respondent objected to the ALJ's finding that “Ms. Igwe is familiar with the Texas regulation that requires a pharmacist to document notes regarding the resolution of red flags.” RD, at 29 (citing Tr. 585). Respondent stated in its exceptions that
Ms. Igwe is familiar with the Texas regulations that require a pharmacist to document notes, but not every red flag, or its resolution must be documented under Texas law. See 22 TAC § 291.33(c)(2)(A)(ii) and (iv). (ii) requires documentation when a clinically significant condition exists that is resolved by the pharmacist, and (iv) requires documentation when the pharmacist has a question about the drug regimen review per (A) of that regulation.”
Respondent's Exception 15 took exception to the RD's finding of fact that
I have amended Findings of Fact 94 and 135 of the Recommended Decision to reflect my determinations on Respondent's Exceptions to the Recommended Decision's findings of fact.
Respondent filed 30 exceptions to the Recommended Decision's Analysis and Conclusions of Law and a Show to the Contrary that provided further explanation and documentation for its final two exceptions. I have reviewed the exceptions and find they can be grouped into five general exceptions:
(1) Respondent objects to the Government's allegation that there was no evidence of Respondent filling prescriptions prior to July 7, 2014;
(2) Respondent objects to the ALJ's official notice of 22 Tex. Admin. Code § 291.33(c)(7)(A);
(3) Respondent argues the Recommended Decision did not properly weigh the five factors from 21 U.S.C. 823(f);
(4) Respondent objects to the ALJ's determination that it violated various federal and state regulations when it dispensed controlled substance prescriptions that raised red flags without properly resolving the red flags and documenting the resolution;
(5) Respondent argues the recommended sanction is not supported by the record.
Respondent filed an exception against “[t]he Government's alleg[ation] that there was no evidence of prescriptions being filled prior to July 7, 2014 due to the lack of earlier information in the patient profiles.” Exceptions, at 13 (citing Gov. Ex. 6). Respondent's exception, however, does not object to any of the ALJ's findings or conclusions from the Recommended Decision. As Respondent stated itself in the exception, the ALJ “found evidence of prior filled prescriptions.”
In the RD, the ALJ took official notice of 22 Tex. Admin. Code § 291.33(c)(7)(A), which sets forth several requirements for labels on prescription bottles. RD, at 59 n.41. Respondent objected to the ALJ's notice of 22 Tex. Admin. Code § 291.33(c)(7)(A), or in the alternative, requested an opportunity to show to the contrary pursuant to 21 CFR 1316.59(e). The ALJ issued an Order Granting Respondent Request for Opportunity to Show to the Contrary on March 6, 2018. In his Order, the ALJ cited two instances in the record where taking notice of this regulation was helpful. First, the ALJ “looked to the regulation for additional support for Dr. Witte's testimony that the dispensing pharmacist's initials must be associated with each prescription and that [PIC] Igwe was the pharmacist who filled all the prescriptions in the Administrative Record.”
I can find no reason why Respondent objected to the ALJ's official notice of 22 Tex. Admin. Code § 291.33(c)(7)(A) or why Respondent filed the Show to the Contrary with documentation of labels from the prescriptions at issue in this matter—all of which display the initials of Respondent's Pharmacist in Charge Ijeoma Igwe (hereinafter, PIC Igwe) and a date. Respondent asserts in the Show to the Contrary that the labels demonstrate that Respondent fully complied with section 291.33(c)(7)(A), but there was never any allegation that Respondent did not. In the RD, the ALJ assumed that Respondent had fully complied with the regulation when labeling prescription bottles.
To the extent, if any, Respondent is objecting to the ALJ's official notice of 22 Tex. Admin. Code § 291.33(c)(7)(A), Respondent's objection is denied as the RD properly characterized the content of the regulation and Respondent acknowledges the regulation applied to Respondent's pharmacy practice.
Respondent filed exceptions arguing that the ALJ did not properly weigh all five factors from 21 U.S.C. 823(f). Specifically, Respondent argues the ALJ did not properly consider that (1) “there is no evidence that the State licensing board has taken a disciplinary action against [Respondent]” or (2) Respondent's experience dispensing or conducting research with respect to controlled substances. Exceptions, at 10.
The DEA considers the five public interest factors from 21 U.S.C. 823(f) separately.
Having reviewed the Recommended Decision, I find that the ALJ did properly weigh the public interest factors. First, as stated above, the ALJ was not required to enter findings on each of the factors or to consider a factor in any given level of detail. Second, contrary to Respondent's assertion, the ALJ did enter findings regarding the recommendation of the State licensing board and concluded that Factor One (21 U.S.C. 823(f)(1)) does not weigh for or against revocation in this matter. The RD found that “it is undisputed that the Respondent holds a valid state pharmacy license in Texas” and “[t]he record contains no evidence of a recommendation regarding the Respondent's privilege to operate as a pharmacy by a relevant state licensing board or professional disciplinary authority.” RD, at 54. As accurately stated in the RD, “Agency precedent establishes that where the record contains no evidence of a recommendation by a state licensing board, that absence does not weigh for or against revocation.”
Finally, I find that Respondent's assertion that the ALJ failed to adequately consider evidence of Respondent's “experience with her other patients” is without merit. Exceptions, at 10 (citing
In this matter, even presuming that the hundreds of other prescriptions Respondent has referenced were legally dispensed, those prescriptions do not render Respondent's unlawful dispensing of the subject prescriptions any less unlawful or “any less `acts which are inconsistent with the public interest.' ”
Respondent has filed exceptions against the ALJ's determination that Respondent dispensed 75 controlled substance prescriptions that raised red flags without resolving those red flags and documenting the resolution in contravention of Respondent's corresponding responsibility under 21 CFR 1306.04; outside the usual course of professional practice in violation of 21 CFR 1306.06; and in violation of 22 Tex. Admin. Code § 291.33(c)(2).
As fully explained in the Recommended Decision, pattern prescribing occurs when a provider or group of providers repeatedly prescribe patients the same drug and the same quantity without any difference in treatment. RD, at 25, 60-62 (citing Tr. 171, 228-29, 232-33, 244, 250, 264-65, 279, 289, 353, 745). The expert witnesses in this matter testified that pattern prescribing raises a red flag because the lack of individualized therapy can indicate the prescriber is not prescribing the controlled substances for a legitimate medical purpose. Tr. 171, 244, 745.
In its Exceptions, Respondent objects to the ALJ's finding that many of the subject prescriptions exhibited the red flag of pattern prescribing and that Respondent filled the prescriptions without resolving the red flag. Exceptions, at 10-12. Respondent claims that it resolved the red flag of pattern prescribing in the subject prescriptions by calling the prescriber whenever a patient presented a controlled substance prescription for the first time.
Respondent claims in the Exceptions that “[e]ach new time a new patients [sic] comes to [Respondent], or an existing patient received a change in medication, the pharmacist places a call to the practitioner to ensure the doctor/patient relationship, to verify the dosing and prescriptions, and to inquire as to the condition or illness being treated.” Exceptions, at 11 (citing Tr. 477-78). Respondent's claim, however, is unsupported by the record evidence and misrepresents PIC Igwe's testimony. In the portion of PIC Igwe's testimony cited by Respondent, PIC Igwe said “if I have a patient who is a controlled drug [sic] and they haven't been before, I would call the clinic and make sure that the clinic did write the prescription, and the number that I would use would not be—would be like a number in the—you know, on my—it wouldn't be what's on the prescription, in case it was no—it was forged, for example.” Tr. 477-78. In other words, PIC Igwe testified that she called the prescriber's office to ensure the prescription was not forged, but she did not testify that she “verif[ied] the dosing” or “inquire[d] as to the condition or illness being treated” as Respondent claims in its Exceptions.
There is also no documentary evidence in the record that PIC Igwe “verif[ied] the dosing,” “inquire[d] as to the condition or illness being treated,” or otherwise resolved the red flag of pattern prescribing on the subject prescriptions as Dr. Witte testified was required for a pharmacist following the accepted standard of practice of pharmacy in Texas.
The ALJ found that the distances the patients travelled to obtain the subject prescriptions were a red flag that Respondent failed to clear before dispensing the prescriptions. RD at 63-65, 72-73, 76, and 79. Dr. Witte credibly testified that the distance or route a patient travels to fill a prescription can be a red flag, Tr. 172-76; and Agency decisions have long found that the distance a patient is willing to travel to obtain a prescription is a factor a pharmacist must consider pursuant to their corresponding responsibility;
Respondent filed exceptions against the ALJ's determination that the distances traveled by the subject patients were a red flag. Exceptions, at 16-17. Respondent argues that “various pharmacists have various thresholds for distances traveled,” and that its expert, Mr. Litman, testified that he would only be concerned about distance if a patient were coming from out-of-state.
In contrast to Mr. Litman, the Government's expert, Dr. Witte, testified that it would be outside the usual course of professional practice in the state of Texas for a pharmacist to dispense a prescription for a controlled substance without considering the distance the patient traveled to obtain and fill the prescription. Tr. 171-76. The Government provided evidence that the roundtrip distance between the subject patients' homes, providers, and Respondent ranged between 55-121 miles through urban areas. Stipulations 9-45. Dr. Witte testified that the distances traveled by the patients were a red flag, noting concern about patients driving across the city of Dallas to Respondent in Plano to fill the prescriptions because “more than likely, there are many pharmacies located between . . . where the patient lives and where the clinic is.” Tr. 174-75, 189-94, 281, 321. I credit Dr. Witte's testimony that the distances traveled by Respondent's patients to obtain the subject prescriptions were a red flag and, accordingly, reject Respondent's exceptions.
The ALJ found that paying cash for a prescription can be a red flag and determined that cash payments, combined with other red flags, can be enough to find a pharmacist violated 21 CFR 1306.04. RD, at 66. This determination is consistent with the testimony of both the Government and Respondent's expert witnesses,
Respondent concedes that cash payments can be a red flag. Exceptions, at 13. Respondent, however, argues that the cash payments made on the subject prescriptions were not red flags because “many of [Respondent's] patrons paid in cash” and because many of the cash payments for the subject prescriptions were “just over” $200, which Respondent's expert, Mr. Litman, “gave [as] a ceiling . . . for a pretty reasonable average cash payment.”
Dr. Witte testified that cash payments for controlled substance prescriptions, such as those for the subject prescriptions, are a red flag.
Accordingly, I reject Respondent's exceptions to the findings in the Recommended Decision that the cash payments for the subject prescriptions were a red flag.
In addition to arguing that the subject prescriptions did not raise the red flags of distance, cash payments, and pattern prescribing and/or those red flags were resolved before Respondent filled the prescriptions, Respondent argues in its Exceptions that the Government failed to establish that PIC Igwe had the requisite degree of scienter to prove a violation of her corresponding responsibility under 21 CFR 1306.04(a). Exceptions, at 7-9, 12-13. Respondent
According to the CSA's implementing regulations, a lawful controlled substance order or prescription is one that is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a). While the “responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, . . . a corresponding responsibility rests with the pharmacist who fills the prescription.”
An order purporting to be a prescription issued not in the usual course of professional treatment . . . is not a prescription within the meaning and intent of . . . 21 U.S.C. 829 . . . and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.
To prove a pharmacist violated her corresponding responsibility, the Government must show that the pharmacist acted with the requisite degree of scienter.
In this matter, the Government did not allege that Respondent dispensed the subject prescriptions having actual knowledge that the prescriptions lacked a legitimate medical purpose. Instead, the Government alleged that Respondent violated the corresponding responsibility regulation as evidenced by it “repeatedly distribut[ing] controlled substances pursuant to prescriptions that contained one or more unresolved red flags for diversion.” Govt Posthearing, at 29.
As partially discussed above, I agree with the ALJ's findings that the subject prescriptions presented multiple red flags including pattern prescribing, distance, cash payments, drug cocktails, high doses/quantities of high-alert controlled substances, and prescriptions lacking the patient's address or the prescriber's DEA number. Agency decisions have consistently found that prescriptions with the same red flags at issue here were so suspicious as to support a finding that the pharmacists who filled them violated the Agency's corresponding responsibility rule due to actual knowledge of, or willful blindness to, the prescriptions' illegitimacy. 21 CFR 1306.04(a);
PIC Igwe also admitted during her testimony that she had
I have considered and reject Respondent's claim that it investigated and resolved the red flags on the subject prescriptions before they were filled and therefore complied with its corresponding responsibility. Exceptions, at 7-9, 11-12. In its Exceptions, Respondent claims that PIC Igwe testified that
Exceptions, at 7 (citing Tr. 477-80, 492). Respondent argues that through this process it resolved any red flags on the subject prescriptions.
Once again, however, Respondent has partially misrepresented PIC Igwe's testimony. PIC Igwe testified that for new patients presenting a controlled substance prescription, she would always “call the clinic and make sure that the clinic did write the prescription.” Tr. 477-481. She did not testify that she asked about the condition being treated or whether the medication prescribed for the patient is appropriate. PIC Igwe did testify that she would check with the prescriber if she had a concern about “the dose, the interactions or what not,” but she did not testify that she did this for all patients presenting controlled substance prescriptions for the first time. Tr. 481.
Additionally, as I discussed
Respondent claims that PIC Igwe made notes in the “Demographics” section of the patient profiles when she had discussions with a prescriber regarding “the dose, the interactions or what not.” Tr. 481, 546; Exceptions, at 15. PIC Igwe, however, had no explanation for why she did not produce this claimed documentation to the Government in response to the subpoenas other than to say that it “is not typically printed in the patient profile sheet,” and she had no explanation for why she did not provide it as an exhibit or otherwise bring it to the administrative hearing. Tr. 481-482, 546-47. PIC Igwe had a similar response when asked why she filled controlled substance prescriptions that lacked the prescriber's DEA number, a requirement for a valid prescription. Tr. 391, 412; 21 CFR 1306.05(a); Tex. Health & Safety Code § 481.074(k). When a prescription lacks the prescriber's DEA number, Dr. Witte testified that the pharmacist should contact the prescriber and annotate the DEA number on the prescription itself or in the patient profile. Tr. 391. PIC Igwe stated that she would have the prescriber fax her a copy of his or her DEA license with the DEA number, but she did not produce those faxes in response to the Government subpoenas or bring them with her to the hearing. Tr. 535-36. In light of the allegations against Respondent and the explicit requests of the Government subpoenas, I find that it strains credulity that Respondent's claimed documentation exists, but that Respondent did not think it was necessary to provide it to the Government or at the hearing. I, therefore, do not credit Respondent's claims that it adequately investigated and resolved the red flags on the subject prescriptions.
Further, this Agency has applied, and I apply here, the “adverse inference rule.”
Based on Respondent's failure to adequately investigate and resolve the many red flags on the subject prescriptions before filling them, I find
Respondent filed additional exceptions to the ALJ's determination that Respondent violated the Texas State Board of Pharmacy's Operational Standards for Community Pharmacies, 22 Tex. Admin. Code § 291.33(c)(2). The Texas regulation requires that “a pharmacist shall, prior to or at the time of dispensing a prescription drug order, review the patient's medication record. Such review shall at a minimum identify clinically significant: . . . reasonable dose and route of administration; . . . duplication of therapy; . . . and, proper utilization, including overutilization or underutilization.”
The Government alleged, and the ALJ agreed, that Respondent violated 22 Tex. Admin. Code § 291.33(c)(2) by failing to contact prescribers and document the conversations when presented with prescriptions that raised red flags. OSC, at 2-5;
Neither the Government nor the Respondent elicited expert testimony or provided other evidence of what conditions or situations qualify as “clinically significant” such that a Texas pharmacist is required by the regulation to consult with the prescriber and document the consultation. During the hearing, Dr. Witte was asked by the ALJ if she was “aware of whether or not Texas law requires the documentation of red flags” and she replied “No. I don't believe so. . . . I'm not aware if there's an actual law.”
However, my determination regarding 22 Tex. Admin. Code § 291.33(c) has no effect on the ultimate outcome of this matter. The substantial evidence on the record demonstrates that failing to resolve and document the resolution of red flags falls below the minimum standards of practice of pharmacy in the State of Texas and is, therefore, a violation of 21 CFR 1306.06.
In the RD, the ALJ found that Respondent had taken “no responsibility for its egregious and repeated failure to fulfill its corresponding responsibility to ensure the proper prescribing and dispensing of controlled substances and other responsibilities of a registration” and “presented no evidence of mitigation or remediation” RD, at 94. The ALJ, therefore, recommended that I revoke Respondent's registration and deny any pending application for renewal or modification.
Where, as here, the Government has met its
I agree with the ALJ's finding that there is nothing in the Administrative Record that suggests Respondent has accepted responsibility for its actions. At the hearing, PIC Igwe was asked, “Do you believe you failed to ensure that the prescriptions for controlled substances which you dispensed were issued for a legitimate medical purpose?” and PIC
Respondent further argues that the ALJ should have weighed sanctions other than revocation, such as temporary suspension. Exceptions, at 15. While the Agency possesses the discretion to order a sanction short of revocation, I conclude that exercising that discretion here would ill-serve the public interest. Respondent has not shown that it can be entrusted with the responsibility carried by its registration—having failed to accept responsibility for its conduct, I have no assurance that Respondent would not repeat the conduct if it were to retain a registration. My predecessors have also revoked the pharmacy registrations for conduct similar to Respondent's.
Finally, Respondent has argued that revocation is inappropriate because the “DEA investigators did not make a finding of Imminent Harm the day they presented the Administrative Inspection Warrant to [Respondent] back in June of 2015.” Exceptions, at 14. Respondent has provided no citation for its argument, and I reject the claim as it lacks any basis in Agency statute, regulation, or prior decisions.
For the reasons above, I reject Respondent's contention that the ALJ's recommendation is overly broad and adopt the ALJ's recommended sanction.
Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration FT4134805 issued to The Pharmacy Place. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(f), I hereby deny any pending application of The Pharmacy Place to renew or modify this registration. This order is effective May 21, 2021.
The Drug Enforcement Administration (“DEA” or “Government”) served The Pharmacy Place (“Pharmacy” or “Respondent”) with an Order to Show Cause (“OSC”), seeking to revoke DEA Certificate of Registration (“COR”), Number FT4134805. Administrative Law Judge Exhibit (“ALJ-”) 1. In response to the OSC, the Respondent timely requested a hearing before an Administrative Law Judge. ALJ-2. The first two sessions of the hearing in this matter were held in Dallas, Texas, from September 12-13, 2017. The Respondent's expert, however, failed to appear on either of those days. To accommodate the Respondent, the hearing was continued. On November 20, 2017, the hearing reconvened. The November 20, 2017 session of the hearing was conducted by video teleconference from the DEA Hearing Facility in Arlington, Virginia, with the parties and witnesses located at the DEA District Office in San Antonio, Texas.
At the conclusion of the hearing on November 20, 2017, the Parties were directed to submit their post-hearing briefs no later than January 10, 2018. Tr. 767. On January 8, 2018, however, the Government filed a Consent Motion for Enlargement of Time to File Post-Hearing Briefs, requesting a new filing date of January 24, 2018. ALJ-31. That motion was granted. ALJ-32. Then on January 19, 2018, the Respondent filed a similar motion, requesting an extension of time to file post-hearing briefs until February 7, 2018. ALJ-33. That motion was also granted. ALJ-34.
The issue before the Acting Administrator is whether a preponderance of the evidence supports the revocation of the Respondent's DEA Certificate of Registration (“DEA-COR”), No. FT4134805, pursuant to 21 U.S.C. 824(a)(4) and 823(f), and the denial of any pending applications for renewal or modification of such registration, pursuant to 21 U.S.C. 823(f).
This Recommended Decision is based on my consideration of the entire Administrative Record, including all of the testimony, admitted exhibits, and the oral and written arguments of counsel.
1. Between August 2014 and May 2015, the Pharmacy filled 75 controlled substance prescriptions outside the usual course of pharmacy practice, in violation of 21 CFR 1306.06, and in contravention of the Pharmacy's “corresponding responsibility” under 21 CFR 1306.04(a). The Pharmacy did so by repeatedly filling controlled substance prescriptions that contained red flags of diversion and/or abuse without addressing or resolving those red flags. The Pharmacy's conduct in doing so violated 21 U.S.C. 823(f)(4); Tex. Health & Safety Code § 481.070-.075; Tex. Health & Safety Code § 481,128; and Tex. Admin. Code § 291.22(c)(2). Additionally, the Pharmacy engaged in conduct that demonstrates negative experience in its dispensing of controlled substances, in violation of 21 U.S.C. 823(f)(2). ALJ-1, at 2-3, para. 3, 6-8.
2. Between August 2014 and May 2015, the Pharmacy's pharmacists filled numerous prescriptions for highly-abused controlled substances that contained one or more of the following red flags, without resolving those red
a. On August 1, 2014, the Pharmacy filled a prescription for 120, 10 mg tablets of hydrocodone presented by an undercover agent. The agent obtained the prescription from a practitioner in a clinic in south Dallas, more than 30 miles from the Pharmacy, which is located north of Dallas. There was no legitimate medical purpose for the prescription and the agent's address on the prescription was fictitious. The agent also sought to purchase the prescription with cash. ALJ-1, at 3-4, para. 10(a).
b. From August 2014 to May 2015, the Pharmacy dispensed prescription cocktails (hydrocodone and alprazolam) to 25 different individuals, all of whom traveled unusual paths and distances to obtain their prescriptions for these controlled substances and to have them filled at the Pharmacy. Six individuals, J.W., H.J., M.H., A.S., K.S., and M.A., traveled more than 100 miles to obtain their prescriptions, have them filled at the Pharmacy, and return home. Another 17 individuals, J.S., C.J., SW, J.W.2, S.H., R.E., R.N., R.H., B.B., S.N., I.B., M.W.2, Y.S., R.H.2, C.D., A.K., and S.B., traveled between 70-100 miles to obtain their prescriptions, have them filled at the Pharmacy, and return home. Four individuals, R.N., E.H., B.B., and T.H., traveled between 60-70 miles to obtain their prescriptions, have them filled at the Pharmacy, and return home. All of these individuals sought to purchase their prescriptions with cash. Additionally, the prescriptions issued to M.W., J.S., J.W., C.J., S.N., J.W.2, S.H., H.J., E.H., A.S., R.E., K.S., S.B., R.H., T.W., I.B., M.W.2, Y.S., M.A., R.H.2, B.B., C.D., A.K., and R.N., were facially invalid and in violation of federal and state law because they lacked the patient's address and the practitioner's DEA number. ALJ-1, at 4, para. 10(b).
c. Many of the individuals mentioned in paragraph (b), above, obtained the prescriptions from physicians who were engaged in “pattern prescribing,”
d. On April 17, 2015, the Pharmacy filled a prescription for hydrocodone to G.B., who had traveled an unusual path and distance of more than 75 miles to obtain her prescription and have it filled at the Pharmacy, and then return home. ALJ-1, at 5, para. 10(d).
3. A DEA audit of the Pharmacy's 10 mg hydrocodone, covering the period of September 25, 2013 through June 18, 2015, revealed a shortage of 47,183 dosage units. Because the Controlled Substances Act requires the maintenance of “complete and accurate” inventories, as well as a “complete accurate record of each substance . . . received, sold, delivered or otherwise disposed of,” this shortage violated 21 U.S.C. 827(a). ALJ-1, at 5, para. 13.
The Government presented its case through the testimony of four witnesses and a sworn declaration. The Government's first witness was retired Diversion Investigator 1 (hereinafter, DI 1). Tr. 25-146. DI 1 served as a DI with the DEA for 14 years and was assigned to the Dallas, Texas office since June 2008. Tr. 26, 78. As a DI, DI 1 conducted scheduled regulatory investigations, all of which required that he conduct an audit of controlled substances. Tr. 78. DI 1 estimated that he had conducted about 70 audits in his career. Tr. 80.
DI 1 was part of a DEA team that conducted an Administrative Inspection Warrant (“AIW”) of the Pharmacy on June 18, 2015. Tr. 26-27, 60, 451. During that inspection, the DEA obtained documents from the Pharmacy, including: Prescriptions; copies of order forms, invoices, and packing forms concerning the Pharmacy's receipt of controlled substances; and the Pharmacy's dispensing history of hydrocodone. Tr. 35-36, 77-78.
While at the Pharmacy on June 18, 2015, DI 1 conducted a closing inventory of the Pharmacy's hydrocodone, during which all of the medication in the Pharmacy was examined. Tr. 47, 130, 132. That inventory revealed that the Pharmacy was short more than 47,000 tablets of hydrocodone. Tr. 87.
The primary purpose of DI 1's testimony was to lay the foundation for the introduction of Government Exhibits 1-12. During his testimony, all of those exhibits were admitted into evidence. Tr. 3-4. DI 1 also testified that he asked the Pharmacy to provide the DEA with a “complete history” of its dispensing of hydrocodone, and that in response to that request the Pharmacy provided the DEA with Government Exhibit 6. Tr. 36-37.
DI 1's testimony was presented in a professional, candid and straightforward manner. In addition, DI 1's testimony was sufficiently objective, detailed, plausible, and internally consistent. Therefore, I merit it as credible in this Recommended Decision.
The Government next presented the testimony of its expert, Dr. Amy Witte, Pharm.D. (“Dr. Witte”). Tr. 150-345, 355-425, 763. Government Exhibit 13 is a copy of Dr. Witte's curriculum vitae. Tr. 153-55. Dr. Witte holds a Doctor of Pharmacy degree from the University of Texas at Austin. Tr. 152. Dr. Witte has been a licensed pharmacist in Texas since 2004. Tr. 152-53. Dr. Witte is currently employed with the University of the Incarnate Word, Feik School of Pharmacy, Department of Pharmacy Practice, in San Antonio, Texas, as a full professor, where she has taught Federal and Texas pharmacy law. Tr. 150, 157-58. She is currently the main professor in the endocrine module, with a
Dr. Witte presented testimony concerning what a pharmacist is required to do before filling a prescription for a controlled substance in Texas. Tr. 169-71, 178-80, 192, 210. In addition, she testified about circumstances that may give rise to a red flag, which a pharmacist would need to resolve before filling a prescription for a controlled substance. Tr. 171-74, 177-80, 189, 191-93, 244, 281, 321, 323. She also provided testimony based upon her review of Government Exhibits 2, 3, and 12, and rendered her opinion as to whether filling various prescriptions in those exhibits fell below the minimal standard of the practice of pharmacy in Texas, whether filling those prescriptions was within the usual course of the practice of pharmacy in Texas, and whether the pharmacist who filled the prescriptions had satisfied the corresponding responsibility to ensure that only prescriptions issued for a legitimate medical purpose were filled.
Having closely listened to Dr. Witte's testimony, and having closely reviewed the transcript of her testimony, I find that it was sufficiently objective, detailed, plausible, and internally consistent to be considered credible in this Recommended Decision.
The Government's third witness was DI 2. Tr. 426-440. She testified that she has been a DI with the DEA since 2005. Tr. 426. To become a DI, DI 2 received 12 weeks of training at the DEA Training Academy concerning, “diversion investigations, pharmacology of drugs, regulatory audits, administrative inspection warrants, . . . and criminal cases.” Tr. 427. DI 2 is currently assigned to DEA's tactical diversion squad in Dallas, Texas, where she primarily focuses on criminal investigations. Tr. 427. Prior to becoming a DI, DI 2 was an adjunct professor in NASA's aerospace education program at Oklahoma State University. Tr. 427.
DI 2 provided testimony concerning her involvement of DEA's investigation of the Pharmacy, indicating that the Pharmacy had come to DEA's attention as part of a larger investigation into pill mills. Tr. 428. DI 2 was the case agent for the larger investigation. Tr. 428. DI 2 noted that the Pharmacy stood out to her because it was located quite a distance from the offices of the pill mill doctors whose prescriptions the Respondent was filling. Tr. 430. DI 2 participated in the execution of the AIW. Tr. 430.
DI 2's testimony was presented in a professional, candid, and straightforward manner. In addition, DI 2's testimony was sufficiently objective, detailed, plausible, and internally consistent. Therefore, I merit it as credible in this Recommended Decision.
Pursuant to an agreement with the Respondent, the Government did not call Ms. Ijeoma Igwe, the Pharmacy's manager and pharmacist-in-charge, as a witness so long as the Respondent called her to testify. Thus, an assessment of her credibility is contained under the discussion of the Respondent's witnesses.
The Government also presented the sworn declaration of UC 1. GE-11. UC 1 presented to the Pharmacy as an undercover agent using the name “M.W.” Tr. 41; GE-10, at 3; GE-11, at 2. Prior to the hearing, the Respondent filed an objection “to the affidavit testimony of [UC 1] because it deprives the Respondent of its cross examination of said witness.” ALJ-15, at 2. The Respondent's objection to the use of the sworn declaration of UC 1 was overruled in a prehearing Order issued on August 29, 2017. ALJ-18, at 1-2. When the Government introduced UC 1's declaration at the hearing, the Respondent again objected, and again that objection was overruled. Tr. 31-32. In admitting the declaration, I noted that it was a hearsay document and Respondent's lack of opportunity to cross examine UC 1 would be considered in determining what weight to give to the Exhibit. Tr. 32;
The Respondent presented its case through the testimony of two witnesses. The first witness the Respondent called was Ms. Ijeoma Igwe. Tr. 442-607. Ms. Igwe obtained her pharmacy degree at the University of Liverpool in England and she worked as a clinical pharmacist in England. Tr. 445. Ms. Igwe immigrated to the United States in 2005. Tr. 445, 605-06. Ms. Igwe began her pharmacy career in the United States serving an internship for 8 to 10 months with CVS Pharmacies in Texas. Tr. 445, 606. Ms. Igwe then worked as a pharmacist for Target, filling in where needed at different Target stores. Tr. 446. Ms. Igwe then became interested in compounding pharmacy, which entails making custom medications, and worked for a compounding pharmacy for three years until April 2013. Tr. 447-48. Then in September 2013, Ms. Igwe opened The Pharmacy Place. Tr. 448.
Ms. Igwe presented testimony about the character and operation of the Pharmacy. Tr. 448-51. She also testified about being present at the Pharmacy when the DEA executed the AIW on June 18, 2015, and her interaction with the DEA investigators. Tr. 451-54, 456-58, 465-67. Ms. Igwe described herself as being perplexed, surprised, and shocked during the execution of the AIW, and that she did her best to assist the investigators. Tr. 452. Ms. Igwe testified that after the DEA investigators left the Pharmacy she discovered that she had not provided them a complete record of her hydrocodone dispensing history, attributing her error to a lack of familiarity with the software program. Tr. 466-67. Working with her “software people,” Ms. Igwe was able to print out another dispensing log, which she sent to her attorney. Tr. 467-71, 548.
Ms. Igwe testified concerning her standard procedures she used when filling prescriptions. Tr. 477-81. Those procedures included calling a prescriber to verify a prescription for a new patient, checking the prescription monitoring program (“PMP”), as well as checking the dosing and normal things a pharmacist looks for. Tr. 477-84, 503, 517, 586, 590, 607. She also testified
Ms. Igwe testified that the Pharmacy receives prescriptions from other providers similar to the prescriptions at issue in this case. Tr. 518-22. She noted that there was an orthopedist downstairs from the Pharmacy and he prescribes hydrocodone which she fills, and that there is one customer who gets 150 tablets a month and another who gets 180 tablets a month. Tr. 476-77, 518, 522. She further testified that because she gets other similar prescriptions she believed the prescriptions at issue in this case were in line with what other patients were receiving from other clinics. Tr. 522.
Ms. Igwe also testified that she was not concerned about the distance a customer traveled if they lived in the Dallas-Fort Worth metroplex. Tr. 493-94. Later she testified that distance would be a concern if she did not know the source of the prescription. Tr. 578. She also testified that she did not know where Everman, Texas, was located, yet she filled multiple prescriptions for patient A.S., who lived in Everman. Tr. 579; GE-2, at 22-33. Ms. Igwe also testified that she would not fill a prescription if the address on the prescription did not match the address on the customer's driver's license. Tr. 539.
While Ms. Igwe seemed confident while she testified, and her testimony appeared sincere and candid, there are several issues with her testimony that detract from its overall believability. First, she testified that she would call the prescriber the first time a patient presented with a prescription for a controlled substance and that she would sometimes mark the prescription with a “V” to indicate that she had verified the prescription. Tr. 477, 482, 557. The documentary evidence, however, does not support that testimony. For example, there are 68 prescriptions contained in Government Exhibit 2, but only one is marked with a “V.”
Second, Ms. Igwe testified that she did not find the prescriptions at issue in this case to be out of line with other prescriptions she filled. Tr. 522. She also testified that she filled prescriptions for an orthopedist, who performed surgery downstairs from the Pharmacy, and that the orthopedist prescribed hydrocodone. Tr. 476, 518. She further testified that she had one customer who took 150 hydrocodone tablets a month and another who took 180. Tr. 518, 522. While the documentary evidence does not necessarily contradict that testimony, the documentary evidence clearly does not support Ms. Igwe's testimony. For example, Government Exhibit 6 details 929 prescriptions that the Pharmacy filled for hydrocodone. All but 25 of those prescriptions were written by the same small group of prescribers, whose prescriptions are identified on the patient profiles contained in Government Exhibit 2. Further examination of Government Exhibit 6 fails to reveal any patient with a prescription for 150 or 180 tablets of hydrocodone. In addition, there is only one prescription written by a prescriber, Dr. V.K., with the same address as the Pharmacy; she wrote a prescription for 30 tablets of hydrocodone. GE-6, at 13.
Third, Ms. Igwe's explanation about why she was not concerned about the delay between the hydrocodone that was prescribed for pain and the date the patient picked it up with respect to Government Exhibit 2, at 1, makes little sense. She explained that a patient with chronic pain might possibly have pain medicine they had received before to tide them over until they could pick up a new prescription. Tr. 564-65. She also testified that she always checked the PMP before filling prescriptions. Tr. 479. The prescription on page 1 of Government Exhibit 2 was for an undercover agent using a fake name. Had Ms. Igwe checked the PMP for that patient, she would not have found any prior prescriptions, eliminating the possibility that the patient had leftover medication to tide him over. Clearly, as Government counsel suggested, Ms. Igwe was simply speculating about reasons for the delay. Tr. 545, 565;
When initially explaining the “Rx Date” on the entries in Government Exhibit 6, Ms. Igwe testified that all of the hydrocodone prescriptions identified in Government Exhibit 6 were electronic prescriptions and the “Rx Date” was the date the prescriptions were received. Tr. 533, 560, 562. She backtracked from that position when confronted by the fact that the prescription at Government Exhibit 2, at 1, was a handwritten prescription and it was also recorded on page 8 of Government Exhibit 6. Tr. 562, 580. Other handwritten prescriptions contained in Government Exhibit 2 are also recorded in Government Exhibit 6.
Finally, Ms. Igwe testified that when she received faxed prescriptions from medical clinics, the clinics also faxed additional information such as the patient's address and identification on separate pages. Tr. 488-89, 539-40. Ms. Igwe also testified that when she would resolve red flags concerning clinical matters about a prescription she would make notes in the demographics section of the patient profile. Tr. 481, 546. She further explained that these notes did not print out when she printed the patient profile. Tr. 482. When asked why she did not bring copies of the materials the medical clinics had faxed to her, or copies of her notes that showed she had resolved red flags, Ms. Igwe testified that she did not think she needed to or that she did not think it was necessary. Tr. 547. This explanation makes no sense in light of the allegations against her and it is not credible. Ms. Igwe's credibility on this issue is further undermined by the fact that this type of information was sought by the investigators during the execution of the AIW and by the September 6, 2016 subpoena. Tr. 78, 356-57; GE-9.
In light of the aspects of Ms. Igwe's testimony outlined above, and those are but a few of the examples that could be given, I find that her testimony merits only limited belief. Thus, where Ms. Igwe's testimony conflicts with the testimony of other witnesses, or with the documentary evidence of record, I credit that other testimony and those documents over Ms. Igwe's testimony.
The Respondent's second witness was Mr. Robert Litman. Tr. 623-762. His curriculum vitae is contained in Respondent's Exhibit B. Tr. 632. Mr. Litman testified concerning his background education and work history. Tr. 624-631, 652-655. Mr. Litman earned his pharmacy degree from the University of Florida in 1981 and he has worked as a pharmacist since then. Tr. 624. Mr. Litman has managed about a dozen small pharmacies over the past 36 years. Tr. 624. He is currently the Director of Consultant and Management Services with Ultimed Health Advisors, dealing with, among other things, the “management of retail pharmacy operations.” Tr. 622; RE-B, at 1. Mr. Litman is also a Clinical Assistant Professor of Pharmacy Practice in geriatric medicine at Nova Southeastern University, Ohio State University, and Palm Beach Atlantic University. Tr. 641, 644; RE-B, at 2. Mr. Litman has previously testified as an expert witness, but only in Florida. Tr. 623, 638-39. Mr. Litman currently works a couple of days per month as a retail pharmacist. Tr. 650, 652. Following voir dire by Government counsel, Mr. Litman was accepted as an expert witness, without objection, in the area of “retail pharmacy practices.” Tr. 656.
Mr. Litman presented his testimony in a direct, straightforward, and candid manner. Mr. Litman had a professional demeanor while he testified. During voir dire of Mr. Litman, the Government noted that Mr. Litman's expert testimony was evaluated by another Administrative Law Judge (“ALJ”) in an earlier case before the DEA. Tr. 650-52;
Some portions of Mr. Litman's testimony that were peculiar or inconsistent concerned the following areas: Distance that customers traveled; a lack of concern for pattern prescribing; drug cocktails; and a delay between the date a prescription was written to treat pain and the date the customer picked up the prescription. Mr. Litman was not particularly concerned about the distance a customer traveled to fill a prescription. Tr. 726-30. While he did testify that as a pharmacist working in Miami, he would find it a little leery if a customer traveled from South Carolina to fill a prescription, he also testified that there was no problem if the customers were from in-state. Tr. 730. Mr. Litman's approach seemingly ignores the fact that portions of South Carolina are closer to Miami than is, “in-state”, Pensacola, Florida. Further, and of greater significance, Mr. Litman was not familiar with DEA case law concerning pharmacy customers driving long distances, or of the Texas requirement for pharmacists to consider distance. Tr. 727. Thus, without an understanding of the law, it is understandable why Mr. Litman has little concern for the distance a customer travels to obtain a prescription and have it filled.
Mr. Litman also testified that he would not be concerned about pattern prescribing when filling 23 successive prescriptions for hydrocodone from the same provider. Tr. 747-49. Nevertheless, Mr. Litman testified that he would call the prescriber every time he was presented with a new prescription for hydrocodone. Tr. 747, 749. Mr. Litman also testified that he would not be concerned about pattern prescribing if he had spoken with the doctor and was comfortable that there was a legitimate doctor-patient relationship. Tr. 748.
Mr. Litman's testimony concerning drug cocktails was difficult to follow. Mr. Litman first acknowledged that a customer presenting prescriptions for hydrocodone and alprazolam would be presenting prescriptions for a drug cocktail. Tr. 740. Mr. Litman further testified that he would only be concerned about filling such prescriptions if the customer was diverting or abusing the controlled substances. Tr. 741. Mr. Litman, however, could not explain how a pharmacist would know if the customer was diverting or abusing the controlled substances. Tr. 741. He later explained that the combination of these two drugs could be a drug cocktail depending on the reason the patient received the prescription. Tr. 741-42. Mr. Litman's explanation ignores the fact that the only way the pharmacist could make an informed decision as to whether the prescriptions had been issued for a legitimate medical purpose would be to call the prescriber. Coming full circle, Mr. Litman then testified that when confronted with prescriptions for hydrocodone and alprazolam he would call the prescriber to “make sure that [the prescriber] wrote those prescriptions, that they were valid prescriptions for a patient, and there was a doctor-patient relationship.” Tr. 743.
Mr. Litman was also asked whether he would have any concern where a patient delayed picking up a prescription written for pain, and he said it would not concern him at all. Tr. 749-50. When asked why he would have no concern, not surprisingly he gave the same speculative answer given by Ms. Igwe—he would assume the patient had some medication left over from a prior prescription or the patient had obtained medication samples directly from the prescriber. Tr. 750-52. The answer is not surprising because Mr. Litman was able to read Ms. Igwe's testimony before he testified. Tr. 683. Although this delay would be of no concern to Mr. Litman, he did testify that he would call the doctor to “let him know that the patient hadn't filled [the prescription] for a week, and [ask] if there was an issue.” Tr. 751. Mr. Litman's explanation suggests that he would be concerned about a delay in picking up a prescription for pain medication, even though he would not acknowledge it.
These four examples of areas in which Mr. Litman's testimony was peculiar or inconsistent are not all-inclusive. Thus, while I find Mr. Litman's testimony to be generally worthy of belief, where it conflicts with Dr. Witte's testimony, or laws, regulations, or DEA precedent, I give greater weight to her testimony and to legal authority.
The parties agree to 45 stipulations (“Stip.”), which are accepted as facts in these proceedings:
1. Respondent Pharmacy Place is registered with DEA as a retail pharmacy authorized to handle controlled substances in Schedules II-V under DEA COR number FT4134805 at 4031 W. Plano Parkway, Suite 211, Plano, Texas 75093. DEA COR FT4134805 expires on November 30, 2019.
2. The pharmacy is owned by HOIC Enterprises, LLC, a Texas limited liability company, and does business as The Pharmacy Place. It is operated and managed by Harrison and Ijeoma Igwe.
3. According to the Texas Office of the Comptroller, Harrison Igwe and Ijeoma Igwe are listed as managers of HOIC Enterprises LLC.
4. According to the Texas Board of Pharmacy, The Pharmacy Place is a licensed community pharmacy in the State of Texas, license no. 28650.
5. According to the Texas Board of Pharmacy, Ijeoma Igwe is a licensed pharmacist (License No. 44785) in the
6. Norco is a brand name of a combination medication containing the Schedule II generic drug hydrocodone.
7. Xanax is the brand name of the Schedule IV generic drug alprazolam.
8. Promethazine with codeine is a Schedule V controlled substance.
9. Government Exhibit (“GE”) 3, pp. 1-5, is a Mapquest printout showing the path and distance from M.A.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. C.V. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) M.A.'s residence. (107 miles total).
10. Government Exhibit (“GE”) 3, pp. 6-10, is a Mapquest printout showing the path and distance from B.B.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE on 201 Billings Street in Arlington, Texas (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) B.B.'s residence. (80 miles total).
11. Government Exhibit (“GE”) 3, pp. 11-15, is a Mapquest printout showing the path and distance from B.B.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE on 2617 Bolton Boone Drive in DeSoto, Texas (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) B.B.'s residence. (66 miles total).
12. Government Exhibit (“GE”) 3, pp. 16-19, is a Mapquest printout showing the path and distance from G.B.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. C.V. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) G.B.'s residence. (55 miles total).
13. Government Exhibit (“GE”) 3, pp. 20-24, is a Mapquest printout showing the path and distance from I.B.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) I.B.'s residence. (79 miles total).
14. Government Exhibit (“GE”) 3, pp. 25-29, is a Mapquest printout showing the path and distance from S.B.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) S.B.'s residence. (79 miles total).
15. Government Exhibit (“GE”) 3, pp. 30-34, is a Mapquest printout showing the path and distance from C.D.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) C.D.'s residence. (81 miles total).
16. Government Exhibit (“GE”) 3, pp. 35-39, is a Mapquest printout showing the path and distance from R.E.'s residence (as listed in Respondent's Patient Profile) to (1) C.Z., S.G., and/or L.R. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) R.E.'s residence. (86 miles total).
17. Government Exhibit (“GE”) 3, pp. 40-44, is a Mapquest printout showing the path and distance from R.E.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. C.V. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) R.E.'s residence. (94 miles total).
18. Government Exhibit (“GE”) 3, pp. 45-48, is a Mapquest printout showing the path and distance from E.H's residence (as listed in Respondent's Patient Profile) to (1) I.I. and/or Dr. A.Q. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) E.H's residence. (68 miles total).
19. Government Exhibit (“GE”) 3, pp. 49-53, is a Mapquest printout showing the path and distance from M.H.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) M.H.'s residence. (116 miles total).
20. Government Exhibit (“GE”) 3, pp. 54-58, is a Mapquest printout showing the path and distance from M.H.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. C.V. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) M.H.'s residence. (121 miles total).
21. Government Exhibit (“GE”) 3, pp. 59-63, is a Mapquest printout showing the path and distance from R.H.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. A.Q. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) R.H.'s residence. (79 miles total).
22. Government Exhibit (“GE”) 3, pp. 64-68, is a Mapquest printout showing the path and distance from R.H.'s residence (as listed in Respondent's Patient Profile) to (1) J.W. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) R.H.'s residence. (76 miles total).
23. Government Exhibit (“GE”) 3, pp. 69-73, is a Mapquest printout showing the path and distance from R.H.2's residence (as listed in Respondent's Patient Profile) to (1) Dr. C.V. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) R.H.2's residence. (92 miles total).
24. Government Exhibit (“GE”) 3, pp. 74-78, is a Mapquest printout showing the path and distance from S.H.'s residence (as listed in Respondent's Patient Profile) to (1) I.I. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) S.H.'s residence. (76 miles total).
25. Government Exhibit (“GE”) 3, pp. 79-83, is a Mapquest printout showing the path and distance from C.J.'s residence (as listed in Respondent's Patient Profile) to (1) I.I. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) C.J.'s residence. (81 miles total).
26. Government Exhibit (“GE”) 3, pp. 84-88, is a Mapquest printout showing the path and distance from H.J.'s residence (as listed in Respondent's Patient Profile) to (1) I.I. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) H.J.'s residence. (105 miles total).
27. Government Exhibit (“GE”) 3, pp. 89-93, is a Mapquest printout showing the path and distance from A.K.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. C.V. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) A.K.'s residence. (81 miles total).
28. Government Exhibit (“GE”) 3, pp. 94-98, is a Mapquest printout showing the path and distance from R.N.'s residence (as listed in Respondent's Patient Profile) to (1) the Billings Street address in Arlington, Texas, where C.Z., S.G., Dr. NE and/or L.R. are listed as practicing according to Respondent's Patient Profile) to (2) Respondent's address to (3) R.N.'s residence. (95 miles total).
29. Government Exhibit (“GE”) 3, pp. 99-103, is a Mapquest printout showing the path and distance from R.N.'s residence (as listed in Respondent's Patient Profile) to (1) the Bolton Boone Drive address in DeSoto, Texas, where Dr. NE is listed as practicing according to Respondent's Patient Profile) to (2) Respondent's address to (3) R.N.'s residence. (78 miles total).
30. Government Exhibit (“GE”) 3, pp. 104-108, is a Mapquest printout showing the path and distance from R.N.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. C.V. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) R.N.'s residence. (64 miles total).
31. Government Exhibit (“GE”) 3, pp.109-112, is a Mapquest printout showing the path and distance from S.N.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) S.N.'s residence. (81 miles total).
32. Government Exhibit (“GE”) 3, pp.113-117, is a Mapquest printout showing the path and distance from A.S.'s residence (as listed in Respondent's Patient Profile) to (1) C.Z., Dr. NE, L.R., and/or S.G. (as listed in
33. Government Exhibit (“GE”) 3, pp.118-122, is a Mapquest printout showing the path and distance from A.S.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. C.V. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) A.S.'s residence. (111 miles total).
34. Government Exhibit (“GE”) 3, pp.123-127, is a Mapquest printout showing the path and distance from J.S.'s residence (as listed in Respondent's Patient Profile) to (1) L.R. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) J.S.'s residence. (80 miles total).
35. Government Exhibit (“GE”) 3, pp.128-133, is a Mapquest printout showing the path and distance from K.S.'s residence (as listed in Respondent's Patient Profile) to (1) C.Z., Dr. NE, S.G., and/or L.R. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) K.S.'s residence. (101 miles total).
36. Government Exhibit (“GE”) 3, pp.134-139, is a Mapquest printout showing the path and distance from K.S.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. C.V. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) K.S.'s residence. (109 miles total).
37. Government Exhibit (“GE”) 3, pp.140-144, is a Mapquest printout showing the path and distance from Y.S.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE on Billings Street in Arlington, Texas, (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) Y.S.'s residence. (97 miles total).
38. Government Exhibit (“GE”) 3, pp.145-150, is a Mapquest printout showing the path and distance from Y.S.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE on Bolton Boone Drive in DeSoto, Texas (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) Y.S.'s residence. (79 miles total).
39. Government Exhibit (“GE”) 3, pp.151-156, is a Mapquest printout showing the path and distance from J.W.'s residence (as listed in Respondent's Patient Profile) to (1) S.G. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) J.W.'s residence. (108 miles total).
40. Government Exhibit (“GE”) 3, pp.157-161, is a Mapquest printout showing the path and distance from J.W.2's residence (as listed in Respondent's Patient Profile) to (1) I.I. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) J.W.2's residence. (98 miles total).
41. Government Exhibit (“GE”) 3, pp.162-166, is a Mapquest printout showing the path and distance from M.W.2's residence (as listed in Respondent's Patient Profile) to (1) L.R. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) M.W.2's residence. (97 miles total).
42. Government Exhibit (“GE”) 3, pp.167-171, is a Mapquest printout showing the path and distance from M.W.2's residence (as listed in Respondent's Patient Profile) to (1) Dr. NE (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) M.W.2's residence. (79 miles total).
43. Government Exhibit (“GE”) 3, pp.172-176, is a Mapquest printout showing the path and distance from SW's residence (as listed in Respondent's Patient Profile) to (1) I.I. (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) SW2's residence. (99 miles total).
44. Government Exhibit (“GE”) 3, pp.177-181, is a Mapquest printout showing the path and distance from T.W.'s residence (as listed in Respondent's Patient Profile) to (1) Dr. NE (as listed in Respondent's Patient Profile) to (2) Respondent's address to (3) T.W.'s residence. (66 miles total).
45. Government Exhibit (“GE”) 12, pp.1-5, is a Mapquest printout showing the path and distance from 5944 Callaston Lane, Ft. Worth, Texas to (1) Redbird Medical Clinic (3107 Camp Wisdom Road, Dallas, Texas) to (2) Respondent's location to (3) 5944 Callaston Lane, Ft. Worth, Texas.
The factual findings below are based on a preponderance of the evidence, including the detailed, credible, and competent testimony of the aforementioned witnesses, the exhibits entered into evidence, and the record before me.
1. Ms. Ijeoma Igwe (“Ms. Igwe”) graduated from pharmacy school at the University of Liverpool in England in 1989. Tr. 445, 605-06. After graduating, she worked as a clinical pharmacist in England until she relocated to the United States in 2005.
2. Ms. Igwe began practicing pharmacy in Texas in 2006 by working as a pharmacy intern with CVS for 8-10 months.
3. Ms. Igwe is a licensed Texas pharmacist.
4. While working at Albertson's, Ms. Igwe developed an interest in compounding pharmacy. Tr. 447. She then worked at a compounding pharmacy for approximately three years until April 2013.
5. Ms. Igwe opened the Pharmacy in September 2013.
6. The Pharmacy is owned by HOIC Enterprises, LLC, and Ms. Igwe is the pharmacist-in-charge of the Pharmacy.
7. The Pharmacy is a small pharmacy.
8. Ms. Igwe is the only pharmacist who works at the Pharmacy.
9. Because Ms. Igwe is the only pharmacist at the Pharmacy, she filled all the prescriptions in Government Exhibit 2.
10. Most of the Pharmacy's prescriptions are electronically received through “e-script.”
11. The Pharmacy began seeing prescriptions from Redbird Medical Clinic, and other clinics under investigation, around January or February 2014.
12. The Pharmacy came to DEA's attention during a larger investigation of “pill mill” clinics in the Dallas area in 2013.
13. The DEA suspected that some prescriptions the Pharmacy filled were not issued for legitimate medical purposes because they were issued from a “pill mill” clinic.
14. At least two doctors and four nurse practitioners involved in the DEA's investigation of Dallas-area pill mills were indicted.
15. On June 18, 2015, Diversion Investigators, DI 1and DI 2 were part of the DEA investigative team that executed an Administrative Inspection
16. During the inspection, Ms. Igwe was the only employee working at the Pharmacy.
17. During the inspection, DEA investigators discussed their concerns about the Pharmacy with Ms. Igwe.
18. During the inspection, DEA asked Ms. Igwe for any documentation she had to show that the Pharmacy had verified the prescriptions it had filled.
19. DEA investigators also requested that the Pharmacy turn over all of the notes it had concerning the resolution of red flags.
20. Ms. Igwe told investigators that she did not verify the legitimacy of every prescription the Pharmacy filled. Tr. 432.
21. During the inspection, DI 1 and DI 2 asked Ms. Igwe if she believed the prescriptions were genuine, and Ms. Igwe stated that she believed they were.
22. The Pharmacy was asked to provide DEA with a complete history of its dispensing of hydrocodone
23. During the inspection, when DEA investigators asked Ms. Igwe for documentation concerning the Pharmacy, Ms. Igwe pointed to where the documentation was located.
24. Government Exhibit 6 is the hydrocodone dispensing log Ms. Igwe printed from the Pharmacy's computer and provided to DI 2 and DI 1 when they executed the AIW at the Pharmacy.
25. The date range printed at the top of Government Exhibit 6 runs from October 23, 2013, to June 18, 2015.
26. Ms. Igwe later realized that the dispensing log she gave to the investigators was incomplete.
27. Sometime after the inspection, Ms. Igwe contacted the manufacturer of the software the Pharmacy used, and the manufacturer showed her how to run the complete hydrocodone dispensing report.
28. There are no dates or date range on any of the documents in Respondent Exhibit C.
29. Pages 5-133 of Government Exhibit 2 contain prescriptions obtained from the Pharmacy during the administrative inspection on June 18, 2015, and patient profiles the Pharmacy provided to the DEA in response to an administrative subpoena.
30. The Pharmacy's computer system automatically assigns a date, time, and prescription number to the prescription when it is received. Tr. 533-34, 562, 580.
31. Government Exhibit 8 contains invoices showing the quantity of hydrocodone shipped to the Pharmacy.
32. During the inspection, Ms. Igwe informed DEA investigators that they had all the documentation they had requested.
33. During the inspection, Ms. Igwe was “pretty upset” and “a little freaked out.”
34. During the inspection, Ms. Igwe had no response when asked if she found it suspicious that customers were traveling from a clinic 30 miles away to get their prescriptions filled at the Pharmacy.
35. During the inspection, Ms. Igwe told DEA investigators that she had spoken to one of the prescribers, Dr. C.V., on one occasion.
36. After the administrative inspection, DI 1 conducted an audit of the Pharmacy's inventory of hydrocodone 10/325 mg.
37. In conducting the audit, the Pharmacy's initial inventory showed zero hydrocodone.
38. DI 1 looked at all medications in the Pharmacy when he conducted the closing inventory of hydrocodone on June 18, 2015. Tr. 130, 132.
39. During the inspection, Ms. Igwe signed the closing inventory.
40. In all of the audits that DI 1 has conducted in his career, he has never identified a shortage as large as the shortage he identified at the Pharmacy.
41. The Texas Prescription Monitoring Program (“PMP”) did not match up with the Pharmacy's dispensing records.
42. The PMP is not a Pharmacy record.
43. The DEA did not receive any explanation from the Pharmacy concerning why its distribution report, Government Exhibit 6, did not report a distribution of hydrocodone until July 7, 2014.
44. DI 1 was never informed that the Pharmacy had additional information to provide him concerning the audit he conducted.
45. Hydrocodone has been a schedule II controlled substance since October 6, 2014.
46. The highest strength of hydrocodone is 10/325 mg.
47. A prescription for 90 tablets of hydrocodone would be a large quantity of tablets.
48. Hydrocodone is usually prescribed to be taken once every 4 to 6 hours, as needed for moderate to severe pain, not to exceed 6 tablets in 24 hours.
49. The highest strength for alprazolam is 2 mg.
50. A prescription for 60 tablets of alprazolam would be a large quantity of tablets.
51. Prescriptions for the highest strength of a controlled substance raise a concern that the patient could exceed the maximum daily dose.
52. The maximum dose of acetaminophen is 4 grams per day.
53. Alprazolam, hydrocodone, and promethazine with codeine are high-alert drugs.
54. Any combination of alprazolam, hydrocodone, promethazine with codeine, and carisoprodol constitutes a drug cocktail of high-alert drugs.
55. When taken together, alprazolam and hydrocodone can produce a euphoric and addictive effect very similar to that of a heroin high.
56. Alprazolam and hydrocodone are among the top 10 most frequently prescribed controlled substances in the United States.
57. The term “red flag” is not contained in any DEA regulation.
58. Pharmacists use the term “red flag” to denote a potential issue with a prescription.
59. A red flag can be indicative of drug abuse or diversion.
60. Ms. Igwe did not learn the term “red flag” during her pharmacist training in England, but she now understands what it means.
61. Pattern prescribing is a red flag because it indicates no individualization of therapy.
62. When a medical provider only prescribes the maximum strength of a controlled substance, the prescriptions suggest that the provider is engaged in pattern prescribing.
63. The distance a person travels, or the route a person travels, to fill a prescription can be a red flag because it is likely there are multiple pharmacies along the same route.
64. When a patient travels all over a metropolitan area to get to a doctor and then to a pharmacy to fill a prescription, that behavior raises a red flag because there would be multiple pharmacies along the way where the patient could fill the prescription.
65. Paying cash for a prescription can be a red flag.
66. Most patients have some sort of third-party payer, such as health insurance, to pay for their prescriptions.
67. Hydrocodone and alprazolam are normally covered by insurance.
68. The lack of a patient's address and/or the prescriber's DEA registration number on a prescription is a red flag.
69. Prescriptions for high-alert drugs such as alprazolam, hydrocodone, and promethazine with codeine, have the potential for abuse and diversion, and thus can be a red flag.
70. A drug cocktail is a red flag.
71. Dosing instructions for hydrocodone that require the patient to take one tablet twice a day for moderate to severe pain would be a red flag, because it is less than the normal dosage for hydrocodone.
72. Many of the prescriptions for hydrocodone contained in Government Exhibit 2 had dosing instructions to take one tablet every four to six hours, which is the normal dosing for hydrocodone, and not a red flag.
73. Dosing instructions for alprazolam that require the patient to take one tablet twice a day for anxiety raises a red flag because alprazolam is typically dosed more frequently than twice per day when it is prescribed for anxiety.
74. Alprazolam can be prescribed to treat pain.
75. A delay between the date that a prescription is written for moderate to severe pain and the date the prescription is filled can be a red flag.
76. When a customer presents a prescription to a pharmacy, the pharmacist should examine the prescription, looking at the date of the prescription, the patient's name and address, the medication and its strength and quantity, as well as its directions for use, and the signature of the provider.
77. If the prescription does not contain the patient's address or the prescriber's DEA number, the prescription is invalid and the pharmacist should not fill the prescription. Tr. 179, 391, 412;
78. Information contained on a cover sheet of a faxed prescription could resolve a red flag, but that information still must be documented.
79. When a pharmacist is presented with a prescription that contains one or more red flags, the pharmacist should call the prescriber to try to resolve the red flag or flags and then document the information that resolves the red flag on the prescription itself or in the patient's profile.
80. A reasonably prudent pharmacist would investigate prescriptions after seeing several prescriptions written by the same doctor or medical practice for the same drugs and the same quantity, and with the same dosing instructions.
81. The first time a patient presents prescriptions for hydrocodone and alprazolam to a pharmacy, the pharmacist might fill the prescriptions.
82. When presented with the first prescription of the day for hydrocodone and alprazolam, a pharmacist might not think much about filling the prescription, but after seeing a handful of prescriptions written for the same drug, the same dose, the same strength, and by the same providers, the pharmacist should identify and resolve those red flags.
83. Evidence of pattern prescribing raises the concern of diversion and/or the abuse of high-alert drugs.
84. After seeing a handful of prescriptions for the same controlled substances with the same strengths and instructions for use, the prescriptions become suspicious.
85. A pharmacist concerned about pattern prescribing should call the prescriber to ask about the medical purpose and dosing, and then document the discussion the pharmacist had with the prescriber.
86. A pharmacist cannot resolve problems concerning the medication, directions for use, or medical purpose by talking to the patient.
87. The patient profile should contain the correct address for the prescriber.
88. A prudent pharmacist would question the distance a patient traveled if a patient lives in Fort Worth but sees a doctor in Dallas.
89. A pharmacist could resolve a red flag concerning the distance a patient traveled by talking with the patient and documenting the conversation.
90. The failure to document the resolution of a red flag is below the minimum standard of the practice of pharmacy in Texas.
91. A pharmacist can use the PMP to determine whether a patient is filling prescriptions at another pharmacy.
92. The PMP shows the names of the doctors and pharmacies a patient has been using.
93. Information regarding a patient is only in the PMP if a pharmacy inputs the information into the system.
94. Ms. Igwe is familiar with a Texas regulation that [she testified requires a pharmacist to document conversations with practitioners regarding clinical matters about a particular prescription.]
95. There are no pharmacist notes in the record that resolve the red flags in Government Exhibit 2.
96. Sometimes Ms. Igwe would write a “V” indicating “verified” on the hard-copy prescription, but she did not do this for every prescription.
97. Ms. Igwe testified that when she verified a prescription, she would make a note on the “demographics” page of the patient's profile that the provider confirmed the prescription. Tr. 481, 585. This information does not print out along with the patient profile.
98. When a customer came to the Pharmacy for the first time to fill a prescription for a controlled substance, she would call the prescriber's office to confirm that the doctor wrote the prescription and that the patient was actually seen at the clinic.
99. Ms. Igwe has never verified whether Redbird, AC Medical, or Arlington Oaks was registered with the State of Texas as a pain management clinic.
100. There were no notes in the Pharmacy's records concerning specialty clinics or other pharmacies refusing to fill prescriptions filled by the Pharmacy.
101. If the doctor confirmed that he or she wrote the prescription, Ms. Igwe would look up the patient in the PMP to make sure the patient was not doctor or pharmacy shopping.
102. Ms. Igwe does not consider it doctor shopping if a patient obtains prescriptions from multiple providers in the same practice.
103. Ms. Igwe testified that before filling a prescription for a controlled substance, she would search the patient's name in the PMP, verify the dosage was correct, and check for any potential drug interactions.
104. Ms. Igwe testified that if she received multiple prescriptions from the same provider, she would not check with the provider for subsequent prescriptions because she did not “see the point of doing it” again when she already contacted the provider about the first prescription the patient presented to the Pharmacy.
105. Ms. Igwe testified that she checked the PMP each time a customer came back to the Pharmacy to make sure that customer had not been obtaining controlled substances from other doctors.
106. Ms. Igwe testified that the first page of a faxed prescription would be a cover sheet with the patient's identification (typically a driver's license) and home address.
107. Ms. Igwe testified that when a patient picked up a controlled substance at the Pharmacy, she would ask the patient for his or her driver's license and check it against the copy of the driver's license faxed by the provider.
108. Ms. Igwe testified that if the identification card presented by the patient at the Pharmacy did not match the information faxed with the prescription, then she would not fill the prescription.
109. There were no notes in the Pharmacy's records concerning the distances customers traveled to get their prescriptions filled at the Pharmacy.
110. The Pharmacy's records do not make a distinction between cash payments and insurance payments.
111. The “co-pay” information on the Pharmacy's fill stickers indicates the amount the customer paid for the prescription.
112. On the Pharmacy's fill stickers, the number underneath the patient's name is the prescription, or “Rx”, number, which is assigned when the prescription is entered into the pharmacy's computer system.
113. The fill sticker also shows the date the prescription was filled, but not the date it was written.
114. On the fill stickers, the abbreviation “Cpy” stands for copay.
115. Ms. Igwe spoke to Dr. C.V. on only one occasion.
116. Ms. Igwe would sometimes ask her customers if the medications they were prescribed were still working for them.
117. Ms. Igwe did not always fill a bottle with medication on the same day that she printed its label.
118. The prescription pad for Redbird Medical clinic (“Redbird”) contains the names of the following medical providers: C.V., M.D.; L.R., ACNS-BC; I.I., DNP-FNP; L.O., FNP-C; and J.W., ANP-BC, with an address on West Camp Wisdom Road in Dallas, Texas.
119. On October 2, 2014, the prescription pad for AC Medical clinic (“AC Medical”) contained the names of the following medical providers: C.V., M.D.; I.I., DNP-FMP; L.R., ACNS-BC; S.G., FNP; and C.Z., PA, with an address on Billing Street in Arlington, Texas. GE-2, at 16.
120. On January 13, 2015, the prescription pad for AC Medical contained the names of the following medical providers: C.V., M.D.; NE, M.D.; L.R., ACNS-BC; S.G., FNP; and C.Z., PA, with an address on East Arkansas Lane in Arlington, Texas. Tr. 207; GE-2, at 132.
121. The prescription pad for Arlington Oaks medical clinic (“Arlington Oaks”) contains the names of the following medical providers: C.V., M.D.; S.G., FNP; L.R., ACNS-BC; and C.Z., PA, with an address on Billing Street in Arlington, Texas. Tr. 206; GE-2, at 5.
The M.W. Prescription
122. DI 1 identified Government Exhibit 11 as the declaration of UC 1, an agent of the Texas Department of Public Safety. Tr. 30. In the declaration, UC 1 describes an undercover operation in which he obtained a prescription from the Redbird Clinic and filled the prescription at the Pharmacy.
123. DI 1 knew UC 1 from his work on the investigation of the Pharmacy, but he did not know that UC 1 was going undercover.
124. During the undercover operation, UC 1 used the name M.W., and he used a driver's license with that name. Tr. 41; GE-10, at 3. The driver's license had a fictitious Fort Worth address. Tr. 189, 541; GE-11, at 2. The Pharmacy maintained a copy of the prescription it filled for M.W. and a copy of M.W.'s patient profile. Tr. 41; GE-10, at 4-5.
125. At 6:55 a.m. on July 29, 2014, undercover agent UC 1 was in a car in the Redbird parking lot. GE-11, at 2. There were about 15 other occupied vehicles in the parking lot at that time.
126. When UC 1 entered the Redbird clinic he was searched by an armed security guard and was seated in the order that he had entered the clinic. GE-11, at 2. When called to the receptionist's counter, UC 1 paid a fee of $170.00, and filled out a questionnaire, using the “M.W.” alias.
127. At 10:40 a.m. UC 1 met with L.R., ACNS-BC, who checked his heart, looked at his back, and an old scar on his knee. GE-11, at 3. L.R. then issued “M.W.” three prescriptions, to include 120 tablets of hydrocodone 10 mg.
128. The M.W. prescription was written on July 29, 2014, and received by the Pharmacy on August 1, 2014. Tr. 543, 562-63; GE-2, at 1; GE-11, at 3; RE-G, at 8.
129. The M.W. prescription was written to treat pain. Tr. 543; GE-2, at 1.
130. The M.W. prescription was faxed by Redbird to the Pharmacy. Tr. 192, 430, 571-72, 592; GE-2, at 1; GE-11, at 3; RE-G, at 8.
131. A copy of the prescription that undercover agent UC 1 received from Redbird, under the name of “M.W.,” as well as the Pharmacy's fill sticker for that prescription, are both contained on page 1 of Government Exhibit 2. Tr. 183-84.
132. On August 4, UC 1 presented to the Pharmacy as “M.W.,” and purchased the prescriptions, paying $150.00 for the hydrocodone. Tr. 576, 591; GE-2, at 1; GE-11, at 3.
133. The fact that the M.W. prescription was written on July 29, 2014, and not picked up until August 4, 2014, did not cause Ms. Igwe any concern. Tr. 577.
134. Ms. Igwe did not look up the address on M.W.'s driver's license to verify whether it was a real or fictitious address. Tr. 541; GE-11, at 3.
135. The prescription that L.R. wrote for M.W. raises the following red flags: No patient address; no provider DEA number; [ ]
136. There are no notes on the M.W. prescription or in the Pharmacy's patient profile for M.W. indicating that any of the red flags were resolved prior to filling the prescription. Tr. 194-95; GE-2, at 1; GE-10, at 4-5.
137. Based on the information provided to the Pharmacy, M.W., more likely than not, would have passed many pharmacies as he traveled the 99 miles from his purported residence in Fort Worth, to Redbird south of Dallas, to the Pharmacy, north of Dallas, and then return to his purported Fort Worth home. Tr. 193-94, 364-65; GE-12.
138. Ms. Igwe had no concern about the distance between M.W.'s fictitious address in Fort Worth and the Pharmacy in Plano. Tr. 542-43.
139. There is transmission data printed along the top of the page that contains the M.W. prescription and fill sticker indicating that the page was “4 of 4” of the pages Redbird faxed to the Pharmacy. GE-2, at 1. Dr. Witte was not provided pages one through three to review, nor are those pages contained in the Administrative Record. Tr. 255; GE-2, at 1.
140. Government Exhibit 2 contains 77 prescriptions for 27 of the Pharmacy's customers. Tr. 254; GE-2. Government Exhibit 2 also contains patient profiles for 26 of the Pharmacy's customers. GE-2. Several of the patient profiles contained in Government Exhibit 2 reveal prescriptions the Pharmacy filled for hydrocodone and
141. On several occasions, prescription cocktails of hydrocodone and alprazolam, contained in Government Exhibit 2, were written or filled on different days. Tr. 311; GE-2, at 28-30, 34-36, 50-52, 94-96, 109-11, 117-19.
142. The patient profile for A.S. raises a red flag of pattern prescribing: The same controlled substances; the same strength and dosages (90 hydrocodone 10/325 mg, 60 alprazolam 2 mg); the same small group of providers; and cash payments. Tr. 241, 408-09; GE-2, at 22-33. Between February 24, 2014 and March 30, 2015, A.S. filled six prescriptions for hydrocodone and six prescriptions for alprazolam at the Pharmacy. GE-2, at 31-33. On February 24, 2014, the Pharmacy filled prescriptions of 120, 10 mg tablets of hydrocodone and 60 tablets of alprazolam for A.S., written by S.G., a family nurse practitioner at AC Medical and Arlington Oaks.
143. The patient profile for R.E. raises a red flag of pattern prescribing: The same controlled substances; the same strength and dosages (90 hydrocodone 10/325 mg, 60 alprazolam 2 mg); the same small group of providers; and cash payments. Tr. 237-39; GE-2, at 34-43. Between April 3, 2014 and March 23, 2015, R.E. filled five prescriptions for hydrocodone and five prescriptions for alprazolam at the Pharmacy. GE-2, at 42-43. On April 3, 2014, the Pharmacy filled prescriptions of 90, 10 mg tablets of hydrocodone and 60 tablets of alprazolam for R.E., written by S.G.
144. On March 18, 2014, the Pharmacy filled prescriptions of 120, 10 mg tablets of hydrocodone and 60 tablets of alprazolam for K.S., written by L.R., a nurse practitioner at Redbird, AC Medical, and Arlington Oaks. GE-2, at 55;
145. On June 19, 2014, the Pharmacy filled prescriptions of 120, 10 mg tablets of hydrocodone and 60 tablets of alprazolam for M.W.2, written by L.R.
146. The patient profile for R.N. raises a red flag of pattern prescribing: The same controlled substances; the same strength and dosages (90 hydrocodone 10/325 mg, 60 alprazolam 2 mg); the same small group of providers; and cash payments. Tr. 239-41; GE-2, at 117-29. Between November 17, 2014 and May 11, 2015, R.N. filled five prescriptions for hydrocodone and five prescriptions for alprazolam at the Pharmacy. GE-2, at 128-29.
147. On August 6, 2014, L.R. wrote prescriptions for 120 tablets of hydrocodone and 60 tablets of alprazolam for patient J.S. GE-2, at 3-4. The prescriptions were filled the same day at the Pharmacy where the customer paid $59.99 for the alprazolam and $150.00 for the hydrocodone.
148. On August 8, 2014, S.G. wrote prescriptions for a drug cocktail of 90 hydrocodone and 60 alprazolam for patient J.W. Tr. 197-98, 399; GE-2, at 5. The prescriptions were filled at the Pharmacy on August 11, 2014, where the customer paid $59.99 for the alprazolam and $125.00 for the hydrocodone. GE-2, at 5. To obtain the prescription and have it filled, J.W. would have traveled 108 miles. Stip. 39.
149. On August 29, 2014, S.G. wrote prescriptions for 120 hydrocodone and 60 alprazolam for patient J.W. GE-2, at 6. The prescriptions were filled at the Pharmacy on September 12, 2014, where the customer paid $59.99 for the alprazolam and $160.00 for the hydrocodone.
150. The January 16, 2015 prescription for R.H. for alprazolam raises a red flag. Tr. 242. The prescription indicates that the alprazolam was to be taken once every eight hours, but the prescription label has instructions indicating that it was to be taken one tablet twice per day.
151. The January 16, 2015 prescription for R.H. for hydrocodone raises several red flags. Tr. 242. The prescription indicates that the hydrocodone was to be taken once every 8 to 12 hours for moderate to severe pain.
152. The April 6, 2015 prescription for R.H. for hydrocodone indicates that it was to be taken 1 to 2 tablets every 8 to 12 hours for moderate to severe pain. Tr. 241; GE-2 at 68. These dosing
153. R.H. was receiving two different controlled substances from two different doctors, hydrocodone from Dr. A.Q. and promethazine with codeine from Nurse J.W. Tr. 242-43, 341; GE-2, at 70. Dr. A.Q. and Nurse J.W. had different addresses. Tr. 243, 362-64; GE-2, at 70. A pharmacist would want to determine why a patient was obtaining controlled substances from two different doctors from different locations. Tr. 243, 362-64.
154. There are no pharmacist's notes or remarks written on R.H's prescriptions or in his patient profile that resolves the red flags raised by his controlled substance prescriptions. Tr. 243.
155. Government Exhibit 6 contains the Pharmacy's hydrocodone dispensing history between July 7, 2014 and May 21, 2015. Tr. 37, 138, 168; GE-6, at 1, 85. Government Exhibit 6 documents 927 prescriptions that the Pharmacy filled for hydrocodone. GE-6. All but 25 of those prescriptions were written by the same small group of prescribers, who wrote the prescriptions identified on the patient profiles contained in Government Exhibit 2: Dr. C.V., Dr. NE, ANP J.W., Dr. A.Q., PA C.Z., NP L.O., DNP I.I., NP S.G., and ACNS L.R.
156. Between October 10-23, 2014, the Pharmacy received 26 consecutive prescriptions for 90 tablets of hydrocodone written by Dr. C.V. GE-6, at 29-31. Between November 7-12, 2014, the Pharmacy filled 17 consecutive prescriptions for 90 tablets of hydrocodone written by Dr. C.V. GE-6, at 33-35.
157. Between November 12-20, 2014, the Pharmacy received 20 consecutive prescriptions for hydrocodone written by Dr. C.V., all but one of which were for 90 tablets. GE-6, at 35-37.
158. The Pharmacy received 9 prescriptions for 90 tablets of hydrocodone 10/325 mg on December 31, 2014. Tr. 424-25, 560; RE-G, at 44-45; GE-6, at 44-45. Eight of the nine prescriptions were written by Dr. C.V. Tr. 424-25; RE-G, at 44-45; GE-6, at 44-45. Receiving these nine prescriptions on the same date did not cause Ms. Igwe any concern. Tr. 561.
159. Between April 9 and May 8, 2015, the Pharmacy received 105 consecutive prescriptions for hydrocodone written by either Dr. C.V. or Dr. NE, all but six of which were for 90 tablets. GE-6, at 69-79. Finally, between May 18-21, 2015, the Pharmacy filled 23 consecutive prescriptions for hydrocodone 10/325 mg written by Dr. NE, all but one of which were for 90 tablets. Tr. 594-95; GE-6, at 83-85.
160. The prescriptions identified in Findings of Fact 155-159 are examples of pattern prescribing. Tr. 171, 231, 388.
161. All the prescriptions in Government Exhibit 6 were filled by Ms. Igwe. Tr. 390;
162.
163. These prescriptions written by Nurse Practitioner I.I. are indicative of pattern prescribing: Same controlled substances; same quantity; same dosages; same prescriber; same drug cocktails. Tr. 236. This pattern indicates a lack of individualization of therapy.
164. The unusual path and distance that I.I.'s patients traveled to obtain their prescriptions and get them filled is a red flag.
165. The fill stickers for all of I.I.'s patients indicate that they paid $120 to $160 for their prescriptions for hydrocodone, which is much higher than the usual cost of hydrocodone.
166. There are no notes on I.I.'s prescriptions or the patient profiles documenting the Pharmacy's resolution of any red flag or consultation with I.I. regarding the red flags.
167.
168. The
169. The prescriptions written by Dr. C.V. are indicative of pattern prescribing: Same controlled substances; same quantity; same dosages; same prescriber; same drug cocktails.
170. The unusual path and distance that Dr. C.V.'s patients traveled to obtain their prescriptions and get them filled is a red flag.
171. The fill stickers for all of these patients indicate that they paid $179.99 for their prescriptions for hydrocodone, which is much higher than the usual cost of 90 tablets of hydrocodone.
172. There are no notes on Dr. C.V.'s prescriptions or the patient profiles documenting that the Pharmacy resolved any red flag or consulted with Dr. C.V., or other prescribers. Tr. 227,
173.
174. The
175. The unusual paths and distances that Dr. NE's patients traveled to obtain their prescriptions and get them filled is a red flag.
176. The fill stickers for all of Dr. NE's patients indicate that they paid $179.99 for their prescriptions for hydrocodone, which is much higher than the usual cost of 90 tablets of hydrocodone.
177. There are no notes on the hard-copies of Dr. NE's prescriptions or the patient profiles documenting that the Pharmacy resolved any of the red flags, or consulted with Dr. NE or any other prescriber regarding the red flags.
Additional facts required to resolve the issues in this case are included in the Analysis section of this Recommended Decision.
To revoke a respondent's registration, the Government must prove, by a preponderance of the evidence, that the regulatory requirements for revocation are satisfied.
(1) The recommendation of the appropriate State licensing board or professional disciplinary authority.
(2) The [registrant's] experience in dispensing, or conducting research with respect to controlled substances.
(3) The [registrant's] conviction record under Federal or State laws relating to the manufacture, distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws relating to controlled substances.
(5) Such other conduct which may threaten the public health and safety.
These public interest factors are considered separately.
The Government bears the initial burden of proof, and must justify revocation by a preponderance of the evidence.
Here, the Government's allegations focus on the manner in which the Pharmacy, through its agents, dispensed controlled substances. In addition, the Government has alleged recordkeeping violations.
The Government submitted its Proposed Findings of Fact, Conclusions of Law, and Argument (“Government's Brief”) on February 7, 2018.
With respect to the Pharmacy dispensing in violation of its corresponding responsibility, the Government pointed out the testimony of its expert witness, Dr. Witte. ALJ-35, at 6-21. Dr. Witte's testimony touched upon virtually each prescription contained in Government Exhibit 2. ALJ-35, at 9-21. The Government noted that Dr. Witte identified numerous red flags concerning the prescriptions the Pharmacy filled, to include: Pattern prescribing; long and unusual distances traveled to obtain and fill prescriptions; delay in filling prescriptions; cash payments for prescriptions; prescriptions for high-alert drugs, such as hydrocodone, alprazolam, and promethazine with codeine; prescriptions for high dosage strengths of the controlled substance; prescription cocktails, such as hydrocodone and alprazolam prescribed together; and prescriptions containing atypical directions for use. ALJ-35, at 7-9. In addition, Dr. Witte testified that to resolve a red flag, a pharmacist in Texas should call the prescriber and then document the prescriber's explanation either on the prescription itself, or in the patient's profile maintained by the pharmacy. ALJ-35, at 8. Failing to document the resolution of a red flag falls below the minimum standards of the practice of pharmacy in Texas.
With respect to recordkeeping violations, the Government's Brief detailed that during execution of the Administrative Inspection Warrant in June 2015, the Pharmacy was asked for its inventories and its dispensing history for hydrocodone. ALJ-35, at 21. The dispensing records provided by the Pharmacy did not account for any dispensing prior to July 7, 2014, while other non-Pharmacy records showed dispensing prior to that date, and the Pharmacy had opened in September 2013. ALJ-35, at 21-22. As a result of the documentation provided by the Pharmacy, the Pharmacy could not account for over 47,000 tablets of hydrocodone.
Based upon the allegation contained in the OSC, and the evidence produced by the Government, the Government argues that Factors 2 and 4 of the five factors listed in 21 U.S.C. 823(f), are the relevant factors to consider in this case, specifically the registrant's experience in dispensing controlled substances and its compliance with applicable state, federal, or local laws relating to controlled substances. ALJ-35, at 27.
The Government argues that the Pharmacy violated 21 CFR 1306.04(a) and 1306.06 when it failed to meet its corresponding responsibility by filling prescriptions outside the usual course of professional practice. ALJ-35, at 27-34. Specifically, the Government alleges that the Pharmacy “repeatedly distributed controlled substances pursuant to prescriptions that contained one or more unresolved red flags for diversion.”
The Government noted that the Pharmacy also had recordkeeping shortcomings, and an audit revealed a substantial shortage of hydrocodone.
In conclusion, the Government argued that the Pharmacy's COR should be revoked because a preponderance of the evidence establishes that allowing the Pharmacy to keep its registration would be contrary to the public interest.
The Respondent submitted its Proposed Findings of Fact and Conclusions of Law (“Respondent's Proposed Findings”) on February 7, 2018.
In the Respondent's Proposed Findings, the Respondent highlighted the policies and procedures the Pharmacy has in place to confirm the legitimacy of new prescriptions for controlled substances. ALJ-36, at 4-7. Some of those policies and procedures include: verifying a prescriber's authorization to prescribe; checking the PMP for doctor shopping; entering prescription and patient information into the Pharmacy's computer system; contacting the prescriber's office when new patients present to the Pharmacy to ensure there is a doctor-patient relationship; questioning the patient about the need for the medication; and marking prescriptions with a “V” once the prescription has been verified.
Based upon the Respondent's proposed findings of fact,
In the Respondent's Brief, the Respondent minimally summarizes some of the testimony.
Taking the admitted evidence and testimony as a whole, there is no evidence the pharmacist isn't completely committed to her duties as a pharmacist. She verifies early and checks the PMP every prescription. There was no evidence of diversion based on the surveillance by the DEA, and the 47000 doses of hydrocodone is probably wrong pursuant to the testimony of the man who wrote the report. Further, there is no evidence of willful blindness or willful indifference by the pharmacist. The
In this case, it is undisputed that the Respondent holds a valid state pharmacy license in Texas. The record contains no evidence of a recommendation regarding the Respondent's privilege to operate as a pharmacy by a relevant state licensing board or professional disciplinary authority. However, possession of a state license does not entitle a holder of that license to a DEA registration.
Agency precedent establishes that where the record contains no evidence of a recommendation by a state licensing board, that absence does not weigh for or against revocation.
As to Factor Three, there is no evidence that Respondent, or any of its agents, have been convicted of an offense under either federal or Texas law “relating to the manufacture, distribution, or dispensing of controlled substances.” 21 U.S.C. 823(f)(3). However, there are a number of reasons why even a person who has engaged in criminal misconduct may never have been convicted of an offense or even prosecuted for one.
Factors Two and Four are often analyzed together.
[According to the CSA's implementing regulations, a lawful controlled substance order or prescription is one that is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a). While the “responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, . . . a corresponding responsibility rests with the pharmacist who fills the prescription.”
An order purporting to be a prescription issued not in the usual course of professional treatment . . . is not a prescription within the meaning and intent of . . . 21 U.S.C. 829 . . . and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.
To prove a pharmacist violated her corresponding responsibility, the Government must show that the pharmacist acted with the requisite degree of scienter.
In this matter, the Government did not allege that Respondent dispensed the subject prescriptions having actual knowledge that the prescriptions lacked a legitimate medical purpose. Instead, the Government alleged that Respondent violated the corresponding responsibility regulation as evidenced by it “repeatedly distribut[ing] controlled substances pursuant to prescriptions that contained one or more unresolved red flags for diversion.” Govt Posthearing, at 29.
Because the Pharmacy is located in Texas, it is important to review the requirements of Texas law as it relates to pharmacists. To begin, Texas law provides that “[a] pharmacist may not: (1) dispense . . . a controlled substance . . . except under a valid prescription and in the course of professional practice.” Tex. Health & Safety Code § 481.074(a)(1). Texas law further provides that “[a] pharmacist may not: (2) dispense a controlled substance if the pharmacist knows or should have known that the prescription was issued without a valid patient-practitioner relationship.”
In addition to Texas statutes, the Texas State Board of Pharmacy has issued rules for the operational standards that Texas pharmacists are expected to follow when filling a new or refill prescription. Those operational standards dictate that
The operational standards also mandate that “[u]pon identifying any clinically significant conditions, [or] situations . . . the pharmacist shall take appropriate steps to avoid or resolve the problem including consultation with the prescribing practitioner.”
The Texas State Board of Pharmacy has also issued rules concerning the labels that a pharmacist puts on the bottles of controlled substances being dispensed by a pharmacy. Those standards require that
Finally, “[t]he corresponding responsibility to ensure the dispensing of valid prescriptions extends to the pharmacy itself.”
In support of its allegations that the Pharmacy violated its corresponding responsibility, the Government convincingly argues that the Pharmacy filled prescriptions to customers without documenting the resolution of numerous red flags. Regarding the documentation of red flags in Texas, [Dr. Witte credibly testified that it would be below the minimum standards of practice and outside the usual course of professional practice for a Texas pharmacist to fail to document the resolution of red flags on a prescription before dispensing it. Tr. 178-82, 209-211 244-47];
[Both expert witnesses in this matter testified that pattern prescribing is a red flag that can be indicative of drug abuse or diversion. FF 58-59, 61; Tr. 171-72.]
Agency [cases involving similar factual scenarios and credible expert testimony]
Some red flags, such as prescription cocktails, suboptimal dosing, and cash payment, should capture a pharmacist's attention early on, if not immediately. In contrast, with respect to the first variety of pattern prescribing—and to a lesser extent the second variety—the problem manifests itself over an extended period of time and is not immediately recognizable. FF 67, 92. Quite literally, pattern prescribing occurs when a single provider's or group of providers' prescriptions all share common characteristics and over time create a pattern of the same substances, doses, and strengths. Tr. 228-29, 232-33, 250, 264-65, 279, 289, 353.
In
Repeat prescriptions for the same handful of drug cocktails issued by the same providers for different patients should “create[ ] an obvious and compelling level of suspicion that the prescriptions lacked a legitimate medical purpose.”
Varying the substances and doses, however, would weigh against a finding of pattern prescribing. In
In this case, Dr. Witte identified pattern prescribing as a recurring issue with the prescriptions she reviewed that had been filled by the Pharmacy [and testified that a pharmacist dispensing prescriptions within the minimum standard of practice in Texas would have recognized the pattern prescribing in the subject prescriptions as a red flag].
The distance a patient is willing to travel to obtain a prescription and fill it is one factor a pharmacist must consider when discharging his or her
Additionally, Texas regulations include the distance a patient traveled as one factor pharmacists should be aware of before dispensing a controlled substance. The Texas State Board of Pharmacy, echoing the federal standard, requires pharmacists to “exercise sound professional judgment with respect to” the legitimacy of a prescription. 22 Tex. Admin. Code § 291.29(a);
As Dr. Witte noted, seeing a doctor in south Dallas and filling a prescription in Plano (north of Dallas) when the patient lives in Fort Worth raises a concern Tr. 189-93, 281, 321. While testifying, Dr. Witte asked an appropriate rhetorical question, “Why did these patients feel the need to drive clear across Dallas, all the way up to Plano, north of the city, to fill these prescriptions?”
The Respondent's expert witness, Mr. Litman, however, minimized the significance of distance, noting that we live “in a very mobile society now, and people are on the go all the time.” Tr. 730. Mr. Litman added that on some days he commutes 80 miles.
Dr. Witte testified that paying cash for prescriptions was a red flag.
Paying cash for controlled substances, rather than billing insurance, is a red flag that the patient is seeking the substances for illicit purposes. “` [A]ny reasonable pharmacist knows that a patient that (sic) wants to pay cash for a large quantity of controlled substances is immediately suspect.' ”
In the absence of other signs of diversion, prices in the range of $25 to $220 may be insufficient to prove that a pharmacist violated his or her corresponding responsibility.
1. Initially, the Government alleged that between August 2014 and May 2015 the Pharmacy filled 75 controlled substance prescriptions outside the usual course of pharmacy practice, in violation of 21 CFR 1306.06, and in contravention of the Pharmacy's “corresponding responsibility” under 21 CFR 1306.04(a). ALJ-1, at 2, para. 3. The Pharmacy did so by repeatedly filling controlled substance prescriptions that contained red flags of diversion and/or abuse without addressing or resolving those red flags. The Pharmacy's conduct in doing so violated 21 U.S.C. 823(f)(4); Tex. Health & Safety Code § 481.070-.075; Tex. Health & Safety Code § 481.128; 22 Tex. Admin. Code § 291.22(c)(2); and 22 Tex. Admin. Code § 291.33. Additionally, the Pharmacy engaged in conduct that demonstrated negative experience in its dispensing of controlled substances, in violation of 21 U.S.C. 823(f)(2). ALJ-1, at 2-3, para. 3, 6-8.
The regulation concerning the usual course of pharmacy practice provides that, “[a] prescription for a controlled substance may only be filled by a pharmacist, acting in the usual course of his professional practice . . . .” 21 CFR 1306.06. The DEA has also promulgated regulations concerning a pharmacist's corresponding responsibility. That regulation provides:
A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment . . . is not a prescription within the meaning of section 309 of the [Controlled Substances] Act (21 U.S.C. 829) and the person knowingly filling such purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.
The Government's first allegation asserts that the Pharmacy violated its corresponding responsibility in filling the prescriptions contained in Government Exhibit 2, which were all filled between August 2014 and May 2015. ALJ-1, at 2, para. 3. The testimony of Dr. Witte, supported by DEA cases, makes clear that pattern prescribing cannot be established by only a few prescriptions. Tr. 332-33. At first blush, the allegation seems inconsistent with DEA precedent and Dr. Witte's testimony that pattern prescribing cannot be established by only a few prescriptions.
The Pharmacy started receiving prescriptions from Redbird in January or February 2014. FF 11; Tr. 475. In fact, prior to filling the cocktail prescriptions for J.S. on August 6, 2014, the Pharmacy had filled at least 104 prescriptions for hydrocodone written by the same small group of prescribers.
Here, Government Exhibit 2 documents that the Pharmacy filled more than 75 controlled substance prescriptions between August 2014 and May 2015 for 27 different customers. FF 140. Those prescriptions contain many of the same red flags as are contained in the prescriptions the Pharmacy filled prior to August 2014 that were written by the same small group of Prescribers.
Accordingly, the allegations contained in paragraphs [3, 6, and 8]
2. The Government next alleged four situations in which the Pharmacy filled prescriptions that contained one or more red flags that the Pharmacy did not resolve prior to filling the prescriptions. The Government listed the following as examples of red flags the Pharmacy did not resolve: (a) Prescriptions for highly-abused controlled substances such as hydrocodone, alprazolam, and promethazine with codeine; (b) prescriptions written to individuals traveling long and/or unusual distances to obtain their prescriptions and/or fill their prescriptions at the Pharmacy; (c) prescriptions for individuals obtaining the same or similar combinations of controlled substances from the same small number of providers; (d) prescriptions for highly-abused drug cocktails, such as hydrocodone and alprazolam; (e) prescriptions containing inappropriate and/or unusual directions for use; and (f) prescriptions for controlled substances purchased with cash. ALJ-1, at 3-5, paras. 10, 10(a)-(d).
Ms. Igwe testified that she did not see any red flags in the prescriptions introduced by the Government because they came from clinics with which she was familiar.
Ms. Igwe also testified that customers would come into the Pharmacy wearing braces or other “mobilization” (sic) devices, consistent with the patient needing a controlled substance to treat pain.
In addition, Ms. Igwe was not concerned with patients coming from Fort Worth. FF 138. Ms. Igwe testified that it was not unusual to see patients with a Fort Worth address.
Although Ms. Igwe testified that she was not concerned about red flags, in part, because she was familiar with the clinics the customers were coming from, Ms. Igwe also testified that she never checked to see if the Prescribers' clinics were registered with the State of Texas as pain management clinics. FF 99. Thus, her belief that she was receiving prescriptions from pain management specialists was, at best, uninformed. While it is true that many of the prescriptions in Government Exhibit 6 also included non-controlled substances that could also be used to treat pain symptoms, it is possible that the Prescribers were simply “masking” the fact that they were issuing prescriptions for illegitimate reasons. Even the Respondent's own expert, Mr. Litman, concluded that he thought the Prescribers were engaged in masking. Tr. 713. Mr. Litman further testified that the only way to sniff out masking, or at least to “reduce the suspicions,” is to “call the physician.”
With respect to distance, Ms. Igwe, as well as Mr. Litman, apparently had no concerns about the distances the Pharmacy's customers were driving to obtain their prescriptions and have them filled at the Pharmacy.
Finally, there is no documentation in the Administrative Record of the Pharmacy ever: Resolving any red flags; consulting with providers about red flags; checking the Texas PMP; or having discussions with customers to resolve missing addresses on prescriptions. Tr. 216-17, 227, 236. In fact, although Ms. Igwe testified that she had such documentation, she did not believe she needed to present it.
The Government alleged that on August 1, 2014, the Pharmacy filled a prescription for 120, 10 mg tablets of hydrocodone presented by an undercover agent without resolving the red flags presented by the prescription. The agent obtained the prescription from a practitioner in a clinic in south Dallas, more than 30 miles from the Pharmacy, which is located north of Dallas. There was no legitimate medical purpose for the prescription and the agent used a fictitious address. The agent also sought to purchase the prescription with cash. ALJ-1, at 3-4, paras. 10, 10(a).
The basic facts that support this allegation are contained in the sworn declaration of the undercover investigator, UC 1. GE-11. During his undercover investigation, UC 1 used the name M.W. FF 124. On July 29, 2014, M.W. went to the Redbird Medical Clinic, where Nurse Practitioner L.R. conducted a cursory examination. FF 126-27. L.R. then issued M.W. a prescription for 120, 10 mg tablets of hydrocodone, as well as prescriptions for Robaxin (methocarbamol) and Mobic (meloxicam). FF 127; GE-2, at 1; GE-10, at 5. Instead of simply giving M.W. his prescription so that he could have it filled at the pharmacy of his choice, Redbird informed M.W. that they were sending his prescription to the Pharmacy. FF 127. The Pharmacy, however, did not receive the prescription until August 1, 2014. FF 129. In spite of the fact that the prescription was written for pain, M.W. did not pick up his prescriptions until August 4, 2014. FF 132. Based on the addresses contained in the Pharmacy's records, M.W. would have needed to travel almost 100 miles to obtain his prescriptions from Redbird, have them filled at the Pharmacy, and return to his recorded, though fictitious, address. GE-12. M.W. paid the Pharmacy $206.00 for his three prescriptions, to include $150.00 for the hydrocodone. GE-2, at 1; GE-11, at 3.
In the three weeks before the Pharmacy filled M.W.'s prescription for hydrocodone on August 1, 2014,
The prescription that L.R. wrote for M.W. raises the following red flags: No patient address; no provider DEA number; [ ]
There are no notations on the M.W. prescription or on M.W.'s patient profile, maintained by the Pharmacy, to suggest that any of the above noted red flags were resolved either before or after Ms. Igwe filled the prescription for hydrocodone. Tr. 194-95; GE-2, at 1; GE-10, at 4-5. Accordingly, the M.W. prescription for hydrocodone was not dispensed in the usual course of pharmacy practice. Tr. 195. In addition, the pharmacist who filled these prescriptions did not follow the minimum standard of the practice of pharmacy in the State of Texas, and did not satisfy the pharmacist's corresponding responsibility to ensure that prescriptions are issued for legitimate medical purposes.
The allegation concerning the M.W. prescription is also included in the allegation contained in paragraphs 3-7 of the OSC that between August 2014 and May 2015 the Pharmacy filled 75 controlled substance prescriptions outside the usual course of pharmacy practice and in contravention of the Pharmacy's corresponding responsibility to ensure that prescriptions are dispensed for legitimate medical purposes. ALJ-1, at 2-3, paras. 3-7. The Government has not advanced any theory as to why this same allegation should be considered twice.
(i.) Next, the Government alleged that from August 2014 to May 2015, the Pharmacy dispensed prescription cocktails (hydrocodone and alprazolam) to 25 different individuals, all of whom traveled unusual paths and distances to obtain their prescriptions for these controlled substances and to have them filled at the Pharmacy. ALJ-1, at 3-4, paras. 10, 10(b).
Government Exhibit 2 reveals that between August 8, 2014, and May 18, 2015, the Pharmacy filled prescriptions for hydrocodone and alprazolam on the same day for 25 different customers. GE-2, at 3-81, 86-132. Of the 27 customers identified in Government Exhibit 2, only patients M.W. and G.B. did not have prescriptions for both hydrocodone and alprazolam filled by the Pharmacy on the same day.
(ii.) The Government also alleged that six individuals, J.W., H.J., M.H., A.S., K.S., and M.A., traveled more than 100 miles to obtain their prescriptions, have them filled at the Pharmacy, and return home. ALJ-1, at 3-4, para. 10, 10(b).
Based upon round-trip distance calculations, each of these Pharmacy customers, J.W., H.J., M.H., A.S., K.S., and M.A., traveled more than 100 miles to obtain their prescriptions and have them filled at the Pharmacy. FF 162, 167, 173. Of these six customers, K.S.
(iii.) The Government next alleged that 17 individuals, J.S., C.J., SW, J.W.2, S.H., R.E., R.N., R.H., B.B., S.N., I.B., M.W.2, Y.S., R.H.2, C.D., A.K., and S.B., traveled between 70-100 miles to obtain their prescriptions, have them filled at the Pharmacy, and return home. ALJ-1, at 3-4, para. 10, 10(b).
Based upon round-trip distance calculations, each of these Pharmacy customers, J.S., C.J., SW, J.W.2, S.H., R.E., R.N., R.H., B.B., S.N., I.B., M.W.2, Y.S., R.H.2, C.D., A.K., and S.B., traveled between 70 to 100 miles to obtain their prescriptions and have them filled at the Pharmacy. FF 47, 151, 162, 167, 173. Of these 17 customers, K.S. had the shortest round trip of 76.6 miles, which would have taken 1 hour and 27 minutes to travel during light traffic. GE-3, at 74. Customer SW had the longest round-trip distance of 99.7 miles, which would have taken 1 hour and 54 minutes to travel in moderate traffic. GE-3, at 167.
(iv.) The Government alleged that four individuals, R.N., E.H., B.B., and T.H.,
Based upon round-trip distance calculations for Pharmacy customers R.N., E.H., B.B., and T.W., they each traveled between 60 to 70 miles to obtain their prescriptions and have them filled at the Pharmacy. FF 167, 173; GE-2, at 71-73; GE-3, at 45-48, 177-181. Of these four customers, R.N. had the shortest round trip of 64.8 miles, which would have taken 1 hour and 33 minutes to travel during heavy traffic. GE-3, at 104. Customer E.H. had the longest round-trip distance of 68.1 miles, which would have taken 1 hour and 22 minutes to travel in moderate traffic. GE-3, at 45.
(v.) Next, the Government alleged that all of the above customers sought to purchase their prescriptions with cash. ALJ-1, at 3-4, para. 10, 10(b).
Each of the Pharmacy's fill stickers shows a dollar amount preceded by the abbreviation “Cpy”.
(vi.) The Government also alleged that the prescriptions issued to M.W., J.S., J.W., C.J., S.N., J.W.2, S.H., H.J., E.H., A.S., R.E., K.S., S.B., R.H., T.W., I.B., M.W.2, Y.S., M.A., R.H.2, B.B., C.D., A.K., and R.N., were facially invalid and in violation of federal and state law because they lacked the patient's address and the practitioner's DEA number. ALJ-1, at 3-4, para. 10, 10(b).
Federal regulations require that, among other information, a prescription must contain the patient's address and the registration number of the prescriber. FF 68, 77; 21 CFR 1306.05(a). Texas law also requires that prescriptions contain the patient's address and the prescriber's DEA number. FF 68, 77; Tex. Health & Safety Code § 481.074(k). The prescriptions issued to M.W., J.S., J.W., C.J., S.N., J.W.2, S.H., H.J., E.H., A.S., R.E., K.S., S.B., R.H., T.W., I.B., M.W.2, Y.S., M.A., R.H.2, B.B., C.D., A.K., and R.N., did not contain the patient's address. GE-2, at 1, 3, 5, 6, 8, 12, 14, 16, 20, 24, 25, 30, 34, 37, 41, 46, 49, 52, 58, 62, 66, 67, 73, 77, 81, 88, 91, 96, 100, 104, 107, 111, 115, 119, 122, 124, 127. In addition, all of these prescriptions, except those issued to S.N. and S.B., and one of the prescriptions issued to B.B., did not contain the prescriber's DEA registration number.
It is also noted that Nurse Practitioner S.G. wrote cocktail prescriptions of hydrocodone and alprazolam for J.W. on August 29, 2014.
The allegations addressed in subparagraphs (i.)-(vi.), discussed above, concern: Dispensing drug cocktails; the long and unusual routes that the Pharmacy customers traveled to obtain their prescriptions and have them filled; paying cash for prescriptions; and prescriptions that were facially invalid. Each of these concerns is a red flag. FF 63, 65, 68, 69, 70, 77; Tr. 391-92. When a prescription presents a red flag, a Texas pharmacist must resolve that red flag [and document the resolution]
The allegations contained in paragraphs 10 and 10(b) of the OSC are also included in the allegation that between August 2014 and May 2015 the Pharmacy filled 75 controlled substance prescriptions outside the usual course of pharmacy practice and in contravention of the pharmacist's corresponding responsibility to ensure that prescriptions are dispensed for legitimate medical purposes. ALJ-1, at 2-3, paras. 3-7. The Government has not advanced any theory as to why this same allegation should be considered twice.
The Government next alleged that many of the individuals mentioned in paragraph B, above, obtained their prescriptions from physicians who were engaged in pattern prescribing. ALJ-1, at 3-4, paras. 10, 10(c).
(i.) The Government alleged that between August 19, 2014
In the month and a half between August 19, 2014, and October 2, 2014, the Pharmacy filled five identical cocktail prescriptions for customers, C.J., SW, J.W.2, S.H., and H.J. FF 162. The Pharmacy provided each of these customers with 90, 10 mg tablets of hydrocodone, and 60, 2 mg tablets of alprazolam based upon prescriptions they had received from I.I. FF 162. Of the 5 customers, S.H. traveled the shortest round-trip distance of 76 miles, taking 1 hour and 27 minutes in light traffic. GE-3, at 74. H.J. had the longest round trip of 105 miles, taking 1 hour and 56 minutes in light traffic. GE-3, at 84.
Further, by the time the Pharmacy filled the first of I.I.'s prescriptions for hydrocodone for 1 of these 5 customers, the Pharmacy had already filled 149 prescriptions for hydrocodone since July 7, 2014, and I.I. had written 43 of those prescriptions. GE-6, at 1-14. In addition, every one of those prescriptions had been written by one of the Prescribers.
In addition, prescribing hydrocodone and alprazolam together constitutes a cocktail of high-alert drugs. FF 55. When taken together, these two controlled substances can create a euphoric and addictive effect similar to a heroin high. FF 55. A drug cocktail is a red flag. FF 70. Here, on August 19, 2014, the Pharmacy was filling drug cocktail prescriptions written by I.I., but as noted earlier in this Recommended Decision, the Pharmacy had already been filling drug cocktails of hydrocodone and alprazolam, written by the same small group of Prescribers to which I.I. belonged.
This allegation is also included in the allegation that between August 2014 and May 2015, the Pharmacy filled prescription cocktails of hydrocodone and alprazolam to 25 different individuals. ALJ-1, at 4, para. 10(b). The Government has not advanced any theory as to why this same allegation should be considered twice.
(ii.) The Government alleged that between November 14, 2014, and May 1, 2015, the Pharmacy filled 12 prescriptions for hydrocodone written by Dr. C.V. for patients A.S., R.E., K.S., G.B., R.H.2, A.K., R.N., and M.H.
The Pharmacy filled prescriptions for customers A.S., R.E., K.S., G.B., R.H.2, A.K., R.N., and M.H., all written by Dr. C.V. for 90, 10 mg tablets of hydrocodone. FF 167. Significantly, at the same time the Pharmacy filled these prescriptions, it also filled a prescription for 60, 2 mg tablets of alprazolam for each of these customers, written by one of the Prescribers other than Dr. C.V. FF 167. Of these 8 customers, G.B. traveled the shortest round-trip distance of 55.8 miles, taking 1 hour and 31 minutes in heavy traffic. GE-3, at 16. A.S. had the longest round trip of 111 miles, taking 2 hours in light traffic. GE-3, at 118.
Further, by the time the Pharmacy filled the first of Dr. C.V.'s prescriptions for hydrocodone for 1 of these 8 customers on November 14, 2014, the Pharmacy had already filled 379 prescriptions for hydrocodone since July 7, 2014, and Dr. C.V. had written 60 of those prescriptions. GE-6, at 1-14. Of the prescriptions Dr. C.V. wrote, the Pharmacy received 28 consecutive prescriptions from Dr. C.V. for hydrocodone between October 9 and October 23, 2014, and it had received 19 in the week before it received the prescription for patient R.E. on November 14, 2014. GE-6, at 29-31, 33-35. In addition, all but 11 of the 379 prescriptions had been written by one of the Prescribers. GE-6, at 1-35;
With the exception of G.B.'s hydrocodone prescription,
(iii.) Next, the Government alleged that the Pharmacy also filled prescription cocktails (hydrocodone and alprazolam), written by Dr. C.V., for patients M.A., R.H.2, and A.K. on April 17, 2015, and May 1, 2015, respectively. ALJ-1, at 3-4, paras. 10, 10(c).
As noted above, Dr. C.V. wrote prescriptions for 90, 10 mg tablets of hydrocodone for M.A., R.H.2, and A.K. FF 167. The Pharmacy also filled prescriptions of 60, 2 mg tablets of alprazolam for these three customers.
The significance of the alprazolam prescriptions, however, does not depend on the prescriber. Rather, the significance is that the Pharmacy filled the alprazolam prescriptions for M.A., R.H.2, and A.K., as well as for all the other customers who received prescriptions for hydrocodone from Dr. C.V., at the same time that it also filled hydrocodone prescriptions for them. In addition, the Pharmacy filled all of these prescriptions even though the customers presented prescriptions for hydrocodone written by Dr. C.V. at the same time that they presented prescriptions for alprazolam written by another one of the other Prescribers. FF 167.
This allegation is included in the allegation that between August 2014 and May 2015, the Pharmacy filled prescription cocktails of hydrocodone and alprazolam to 25 different individuals. ALJ-1, at 4, para. 10(b). The Government has not advanced any theory as to why this same allegation should be considered twice.
(iv.) The Government alleged that between January 13, 2015, and May 11, 2015, the Pharmacy dispensed controlled substances pursuant to “pattern-style” prescriptions issued by Dr. NE On 14 different occasions, the Pharmacy dispensed 90, 10 mg tablets of hydrocodone to 11 different customers. ALJ-1, at 3-4, para 10, 10(c).
The Pharmacy filled 15 prescriptions for 11 customers, A.S., R.N., R.E., B.B., S.B., S.N., T.W., I.B., M.W.2, Y.S., and C.D., between January 24, 2015 and May 18, 2015. FF 173; GE-2, at 22-23, 89-90. These prescriptions were written by Dr. NE for 90, 10 mg tablets of hydrocodone. FF 173. Significantly, at the same time the Pharmacy filled these prescriptions, it also filled a prescription for 60, 2 mg tablets of alprazolam for each of these customers, written by either Dr. NE or one of the other Prescribers. FF 173. Of the 11 customers, T.W. traveled the shortest round-trip distance of 66.9 miles, taking 1 hour and 23 minutes in moderate traffic. GE-3, at 177. A.S. had the longest round trip of 104 miles, taking 1 hour and 54 minutes in light traffic. GE-3, at 113. Every prescription was purchased with cash. FF 173. The price for hydrocodone and alprazolam together totaled $239.98.
Further, by the time the Pharmacy filled the first of Dr. NE's prescriptions for hydrocodone for 1 of these 11 customers, which was A.S. on January 26, 2015, GE-6, at 52, the Pharmacy had already filled 563 prescriptions for hydrocodone since July 7, 2014, and Dr. NE had written 60 of those prescriptions. GE-6, at 1-52. Of the prescriptions Dr. NE wrote, the Pharmacy received seven consecutive prescriptions from Dr. NE for hydrocodone on November 5, 2014, four consecutive prescriptions from Dr. NE for hydrocodone on November 23, 2014, and six consecutive prescriptions from Dr. NE for hydrocodone on December 30, 2014. GE-6, at 32-33, 37, 44. In addition, all but 18 of the 563 prescriptions had been written by one of the Prescribers. GE-6, at 1-52;
This allegation is included in the allegation that between August 2014 and May 2015 the Pharmacy filled prescription cocktails of hydrocodone and alprazolam to 25 different individuals. ALJ-1, at 4, para. 10(b). The Government has not advanced any theory as to why this same allegation should be considered twice.
(v.) The Government next alleged that on 8 different occasions, the Pharmacy filled identical prescription cocktails written by Dr. NE consisting of 90, 10 mg tablets of hydrocodone and 60, 2 mg tablets of alprazolam. Identical prescription cocktails were dispensed to both I.B. and T.W. on April 10, 2015, and to B.B. and C.D. on April 23, 2015. ALJ-1, at 3-4, para. 10, 10(c).
The Pharmacy filled drug cocktail prescriptions of 90, 10 mg tablets of hydrocodone and 60, 2 mg tablets of alprazolam written by Dr. NE seven different times. FF 173. These prescriptions were filled for customers B.B., S.B., S.N., T.W., Y.S., R.N., and again for B.B. FF 173; GE-2, at 56-58, 60-62, 71-73, 86-88, 102-04, 105-07, 125-27. While the Pharmacy also filled identical cocktail prescriptions for I.B. and T.W. on April 10, 2015, and again for B.B. and C.D. on April 23, 2015, Dr.
As noted earlier, the significance of the Pharmacy filling prescriptions for alprazolam, however, does not depend on the prescriber. Rather, the significance is that the Pharmacy filled a prescription cocktail of alprazolam and hydrocodone for I.B., T.W., B.B., and C.D., as well as for all the other customers above who received prescriptions for hydrocodone from Dr. NE In addition, the Pharmacy filled all of these prescriptions even though the customers presented prescriptions for hydrocodone written by Dr. NE, while the prescriptions for alprazolam were written by a different one of the Prescribers. Further, as noted above, all of these prescriptions exhibited the red flags of pattern prescribing, the customers all traveled long or unusual routes to obtain their prescriptions and have them filled, and all of the prescriptions were purchased with cash.
This allegation is included in the allegation that between August 2014 and May 2015, the Pharmacy filled prescription cocktails of hydrocodone and alprazolam to 25 different individuals. ALJ-1, at 4, para. 10(b). The Government has not advanced any theory as to why this same allegation should be considered twice.
Therefore, the allegations contained in paragraphs 10 and 10(c) of the OSC, that the Pharmacy filled numerous prescriptions without resolving red flags concerning drug cocktails, distance traveled, cash payments, and facially invalid prescriptions, are
(vi.) The Government's next allegation is that on April 17, 2015, the Pharmacy filled a hydrocodone prescription for G.B., who had traveled an unusual path and distance of more than 75 miles to obtain her prescription and have it filled at the Pharmacy, and then return home. ALJ-1, at 5, para. 10, 10(d).
Government Exhibit 2 documents that the Pharmacy filled a prescription for G.B. for 90, 10 mg tablets of hydrocodone on April 17, 2015. GE-2, at 84. The prescription was written by Dr. C.V. one day earlier. GE-2, at 83. This allegation is included in the allegation that the Pharmacy filled 75 controlled substance prescriptions outside the usual course of pharmacy practice, in violation of 21 CFR 1306.06, and in contravention of the Pharmacy's “corresponding responsibility” under 21 CFR 1306.04(a). ALJ-1, at 2, para. 3. It is also included in the allegation that between November 14, 2014 and May 1, 2015, the Pharmacy filled 12
Finally, the Government alleged that a DEA audit of the Pharmacy's 10 mg hydrocodone, covering the period of September 25, 2013, through June 18, 2015, revealed a shortage of 47,183 dosage units. Because the Controlled Substances Act requires the maintenance of “complete and accurate” inventories, as well as a “complete accurate record of each substance . . . received, sold, delivered or otherwise disposed of,” this shortage violated 21 U.S.C. 827(a). ALJ-1, at 5, para. 13.
As noted above, the CSA mandates that “[e]very registrant . . . shall maintain, on a current basis, a complete and accurate record of each [ ] substance manufactured, received, sold, delivered, or otherwise disposed of . . . .” 21 U.S.C. 827(a)(3). On June 18, 2015, DEA investigators conducted an inspection of the Pharmacy, and asked Ms. Igwe to produce a copy of the Pharmacy's dispensing history of hydrocodone. FF 15, 23. In response, Ms. Igwe gave the inspectors a report of the Pharmacy's hydrocodone dispensing history, contained in Government Exhibit 6, with a date range of October 23, 2013 to June 18, 2015. FF 24-25. Following the inspection, and using the report provided by Ms. Igwe, DI 1 conducted an audit of the Pharmacy's hydrocodone. FF 36; Tr. 47-48. DI 1's audit revealed that the Pharmacy was short 47,183 tablets of hydrocodone. FF 37.
Government Exhibit 6 clearly does not report all of the hydrocodone that the Pharmacy dispensed. FF 41. After the inspection, Ms. Igwe discovered that she had not provided the DEA inspectors with a complete listing of the hydrocodone the Pharmacy had dispensed. FF 26-27. At the hearing, the Respondent produced Respondent's Exhibit C for the first time, which Ms. Igwe claimed is the complete dispensing report. FF 27, 43-44. Although Ms. Igwe testified that she had provided Respondent's Exhibit C to an attorney so that he might provide it to the DEA, there is no evidence the DEA ever received it. FF 27, 43-44. At the hearing, both Ms. Igwe and Mr. Litman testified that if Respondent's Exhibit C was considered during the audits of the Pharmacy's hydrocodone, there would have been no shortage. Tr. 472-73, 730. Ms. Igwe, however, did not know if her own audit showed an overage.
The Administrative Record reveals several deficiencies concerning the Respondent's records. First, the Respondent's hydrocodone dispensing log was not “readily retrievable” as is required under 21 U.S.C. 827. Second, the “complete” dispensing log which Ms. Igwe allegedly gave to DEA sometime after the inspection does not comply with DEA regulations. Lastly, even a manual count of the Respondent's “complete” dispensing log reveals a substantial overage.
Although the Pharmacy takes the position that it produced “complete and accurate” records after the inspection, these records were not “readily retrievable” as is required by the CSA and DEA regulations. [The regulatory definition of “readily retrievable” calls for locating the records “in a reasonable time.” 21 CFR 1300.01(b). In
Additionally, not only were the Pharmacy's dispensing records produced significantly late, but they also failed to include required information. This was the situation in
Further, a manual count of the quantities listed in the “complete” dispensing log revealed an overage, itself a violation of the CSA and DEA regulations, albeit different than that alleged in the OSC. Respondent Exhibit C is broken into four sections separated by green pages. RE-C, at 1, 2, 3-30, 31-43; Tr. 470-71, 603; FF 27-28. The third section represents the same information in Government Exhibit 6 that Ms. Igwe gave to investigators during the inspection and that DI 1 used to conduct an audit. RE-C, at 3-30; GE-6, at 1-85; Tr. 47-48. The first, second, and fourth sections contain additional dispensing information not contained in the report that DI 1 used to conduct his audit. RE-C, at 1-2, 31-43. The information in the third column from the left is the quantity of hydrocodone dispensed.
Applying the 48,288 units counted in Respondent Exhibit C to DI 1's audit computation produces an overage of 1,105 units. GE-7, at 1. The computation report shows that DI 1 reached the 47,183 figure by subtracting “distributions in period” (90,209) and “closing inventory” (3,908) from “purchases in period” (141,300). GE-7, at 1. The difference between the shortage calculated by DI 1 (47,183) and the total derived from a count of Respondent Exhibit C (48,288) is +1,105.
Accordingly, the Government's allegation contained in paragraph 13 of the OSC that the Pharmacy failed to maintain “complete and accurate” records in violation of 21 U.S.C. 827(a)(3) is
I have sustained, with minor variations, [the overwhelming majority]
I also find that all of the specific allegations contained in paragraphs 10 and 10(a)-(d) of the OSC are included in the general allegation that the Pharmacy violated 21 CFR 1306.04(a) and 21 CFR 1306.06 when it filled 75 prescriptions between August 2014 and May 2015. ALJ-1, at 2, para. 3. Thus, while the allegations contained in paragraphs 10 and 10(a)-(d) of the OSC are sustained, the substance of those allegations will not be considered more than once in assessing whether the
Lastly, I have sustained the allegation contained in paragraph 13 of the OSC, alleging that the Pharmacy violated 21 U.S.C. 827(a) by failing to maintain accurate records. The records in question in this case were the Pharmacy's receipt and dispensing records for hydrocodone. An audit of the records the Pharmacy produced in response to a DEA inspection warrant revealed that the Pharmacy could not account for a significant portion of the hydrocodone it had received when called upon to do so.
The preponderance of evidence clearly establishes that the Pharmacy violated its corresponding responsibility by dispensing controlled substances outside the normal course of professional practice. Beginning in August 2014 and continuing into May 2015, the Pharmacy repeatedly filled 75 prescriptions from the Prescribers, who over and over again prescribed the same medications and usually in the same dosages, strengths, and quantities. Frequently, too, the patients would present with prescriptions for drug cocktails, where the hydrocodone prescription was written by one of the Prescribers and the alprazolam was written by a different Prescriber. This is a well-known behavior of those seeking to hide the true reason they are obtaining drug cocktails. Most of the prescriptions were issued in a manner that should have given rise to concerns of the therapeutic value of the prescription. [The minimum standard of the practice of pharmacy in Texas requires pharmacists to have consultations with prescribers when there are concerns about the medical legitimacy of a prescription and then to document that consultation. FF 90.]
The Government's expert testified that an overriding concern she had concerning the prescriptions at issue in this case was that of pattern prescribing and the lack of individualization of treatment. Tr. 171, 244, 260, 296, 317, 333, 335, 358-59; FF 61-62. Unquestionably, it is easier to identify patterns in retrospect. In addition, DEA has stated that “two prescriptions do not establish pattern prescribing.”
The Respondent has attempted to make much out of the fact that Government Exhibit 2 contains prescriptions of less than 30 patients, while the Prescribers wrote “over a thousand scripts.” Tr. 368;
Dr. Witte also addressed the red flag of cash payments with respect to many of the prescriptions involved in this case.
Here, numerous patients paid $239.98 upon picking up prescriptions for both alprazolam and hydrocodone at the same time. Tr. 498; FF 167, 173. While these fees were not exorbitant, the Pharmacy made between $154.00 and $161.00 profit when a customer paid $179.99 for an order of hydrocodone. Tr. 498; GE-6, at 45, 54. Furthermore, most insurance plans cover hydrocodone. FF 39. Such a heavy profit margin per sale could certainly be an incentive to turn a blind eye to illegitimate prescriptions, particularly when they were so numerous. Nevertheless, were cash payments the only red flag involved in the prescriptions in this case, I would not sustain a violation of the Pharmacy's duty to resolve that red flag. As noted, however, cash purchases were not the only red flags that Ms. Igwe should have readily identified.
Dr. Witte also testified that the distance and route that several
With respect to the Pharmacy's recordkeeping violations, the Government has established by a preponderance of the evidence that the Pharmacy failed to produce a complete dispensing log for the hydrocodone it dispensed between the date the Pharmacy opened and June 18, 2015. FF 22, 24-28, 44. As a result of this poor recordkeeping, when the DEA conducted an audit of the Pharmacy's hydrocodone, the Pharmacy had a shortage of over 47,000 tablets of hydrocodone. FF 37. Although the Respondent eventually produced Respondent Exhibit C, which Ms. Igwe testified was the Pharmacy's complete dispensing log, Tr. 467-71, it does not comply with DEA's requirements for a dispensing log. 21 CFR 1304.22(c);
Factors Two and Four strongly weigh in favor of revoking the Pharmacy's COR. Considering the public interest factors in their totality, I find that the Government has made a
After the Government presents a
The Respondent may accept responsibility by providing evidence of its remorse, its efforts at rehabilitation, and its recognition of the severity of its misconduct.
There is nothing in the Administrative Record that suggests the Pharmacy has accepted responsibility for its actions. During her testimony, Ms. Igwe took no responsibility. Tr. 567. Further, a review of the Respondent's Proposed Findings and the Respondent's Brief gives no hint of acceptance of responsibility.
Because I have determined that the Government has met its
Here, I find that both aspects of the misconduct proven in the Administrative Record are egregious and support the revocation of the Pharmacy's registration. First, time and again, Ms. Igwe filled prescriptions that ought not have been filled without the resolution of red flags. Significantly, this case started with the DEA investigating a pill mill. Tr. 31. Over a period of eight to nine months, Ms. Igwe filled prescriptions for a small group of medical practitioners, who wrote essentially identical prescriptions, including drug cocktail prescriptions involving hydrocodone and alprazolam, in such a manner that a preponderance of evidence establishes that those practitioners were engaged in pattern prescribing. Such lack of individualized dosing of these two highly-abused controlled substances [should have indicated to a pharmacist following the minimum standards of practice in Texas that there was a high probability that the medical practitioners were operating a controlled substance pill mill. Tr. 258-261;]
Second, I find that the Pharmacy did not take its recordkeeping responsibilities seriously. The Pharmacy's failure to produce a complete dispensing record clearly prevented the DEA from being able to “closely monitor the flow of controlled substances” flowing in and out of the Pharmacy and to effectively combat diversion.
I further find that the DEA's interest in deterring future misconduct by the Pharmacy, as well as by other pharmacies, supports revocation of the Pharmacy's registration.
In this case, the Government has established a
The evidence is clear in this case that the Pharmacy has taken no responsibility for its egregious and repeated failure to fulfill its corresponding responsibility to ensure the proper prescribing and dispensing of controlled substances, and other responsibilities of a registrant. In addition, the Pharmacy presented no evidence of mitigation or remediation.
Therefore, based upon my review of the entire Administrative Record, I recommend that the Certificate of Registration of The Pharmacy Place, Certificate of Registration Number FT4134805, be
On March 31, 2021, the Operating Committee for Consolidated Audit Trail, LLC (“CAT LLC”), on behalf of the following parties to the National Market System Plan Governing the Consolidated Audit Trail (the “CAT NMS Plan” or “Plan”):
Set forth in this Section II is the statement of the purpose and summary of the amendment, along with information required by Rule 608(a) under the Exchange Act,
The Operating Committee proposes to revise certain aspects of the funding model set forth in Article XI of the CAT NMS Plan (the “Original Funding Model”). The Original Funding Model requires a bifurcated funding model, where costs associated with building and operating the CAT would be borne by (1) Industry Members (other than alternative trading systems (“ATSs”) that execute transactions in Eligible Securities (“Execution Venue ATSs”)) through fixed tiered fees based on message traffic for Eligible Securities, and (2) Participants and Industry Members that are Execution Venue ATSs for Eligible Securities through fixed tiered fees based on market share. The Operating Committee proposes to amend the CAT NMS Plan to adopt the Proposed Funding Model. The Proposed Funding Model would continue to require many of the same elements as the Original Funding Model, including the bifurcated funding approach, and the use of market share and message traffic for allocating costs. The Proposed Funding Model, however, would revise the Original Funding Model in certain ways, including (1) dividing the CAT costs between Participants and Industry Members, rather than between Execution Venues and Industry Members (other than Execution Venue ATSs); (2) eliminating the use of tiers in calculating CAT fees for Participants and Industry Members; (3) adopting certain minimum and maximum CAT fees for Industry Members and Participants; and (4) imposing certain discounts for market making activity when calculating Industry Member CAT fees. The Operating Committee also proposes to adopt a fee schedule to establish the CAT fees applicable to Participants based on the Proposed Funding Model. The fee schedule would establish the allocation percentages and other variables for calculating the CAT fees under the Proposed Funding Model.
Under the Proposed Funding Model, the CAT fees for the relevant period would be designed to cover the total CAT costs associated with developing, implementing and operating the CAT for the relevant period (“Total CAT Costs”).
The Industry Member Allocation would be allocated to each Industry Member based on message traffic. This is similar to the Original Funding Model, which allocated the Industry Member Allocation among Industry Members (other than Execution Venue ATSs) based on message traffic. The Proposed Funding Model would differ from the Original Funding Model because it would eliminate tiering, and it would include certain market maker discounts and a minimum and
As for the Participant Allocation, each Participant would pay a minimum CAT fee of 0.75% of the Participant Allocation (the “Minimum Participant Fee”). The Participant Allocation minus the total Minimum Participant Fees required to be paid by all Participants (the “Adjusted Participant Allocation”) would be divided between Participants that execute transactions in, or in the case of a national securities association, has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange, in Eligible Securities that are NMS Stocks (“Equities Participants”) and Participants that execute transactions in Listed Options (“Options Participants”). Equities Participants as a group would pay 60% of the Adjusted Participant Allocation (“Equities Participant Allocation”) and Options Participants as a group would pay 40% of the Adjusted Participant Allocation (“Options Participant Allocation”).
The Equities Participant Allocation would be divided among Equities Participants based on each Equities Participant's market share in NMS Stocks. Each Equities Participant would pay a CAT fee that is calculated by multiplying its percentage of the total market share of NMS Stock for all Equities Participants during the relevant time period by the Equities Participant Allocation, subject to a maximum Equities Participant fee. Total market share in NMS Stocks would be determined by calculating the total volume in NMS Stocks reported by all Equities Participants during the relevant time period. A national securities association (currently, only FINRA) would pay its respective share of the Equities Participant Allocation calculated based on market share, provided that the national securities association would not pay more than a maximum Equities Participant fee, which would be the greater of (x) 20% of the Equities Participant Allocation or (y) the highest CAT fee required to be paid by any other Equities Participant plus 5% of such highest CAT fee (“Maximum Equities Participant Fee”), plus any additional fee required by the re-allocation of any excess amount which such Participant otherwise would have paid if not subject to the Maximum Equities Participant Fee. Specifically, if any Participant's fee is limited to the Maximum Equities Participant Fee, any excess amount which such Participant otherwise would have paid as a fee above such Maximum Equities Participant Fee will be re-allocated among all Equities Participants (including any Equities Participant subject to the Maximum Equities Participant Fee) in accordance with their market share.
The Options Participant Allocation would be divided among Options Participants based on each Options Participant's market share in Listed Options. Each Options Participant would pay a CAT fee that is calculated by multiplying its percentage of the total market share in Listed Options during the relevant time period by the Options Participant Allocation. Total market share in Listed Options would be determined by calculating the total volume of Listed Options contracts reported by all Options Participants during the relevant time period.
The following chart summarizes certain similarities and differences between the Original Funding Model
As discussed in detail below, the Operating Committee believes that the Proposed Funding Model satisfies the applicable requirements of the Exchange Act as well as the funding principles and other requirements of the CAT NMS Plan, as proposed to be revised herein. For example, the Operating Committee believes that the Proposed Funding Model provides for the “equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities necessary or appropriate in furtherance of the purposes of this chapter.”
Under the Proposed Funding Model, both Participants and Industry Members would contribute to the funding of the CAT by paying a CAT fee. As permitted by Rule 613, the CAT NMS Plan requires Industry Members to pay a CAT fee. Nevertheless, the Participants have paid the full cost of the creation, implementation and maintenance of the CAT since 2012, pending Commission approval of a fee program. The continued funding of the CAT solely by the Participants was and is not contemplated by the CAT NMS Plan, nor is it a financially sustainable approach.
Rule 613(a)(1)(vii)(D) contemplates Industry Members contributing to the payment of CAT costs. Specifically, this provision requires the CAT NMS Plan to address “[h]ow the plan sponsors propose to fund the creation, implementation, and maintenance of the consolidated audit trail, including the proposed allocation of such estimated costs among the plan sponsors, and between the plan sponsors and members of the plan sponsors.”
In addition, as approved by the SEC, the CAT NMS Plan specifically contemplates CAT fees to be paid by both Industry Members and Participants. Section 11.1(b) states that “the Operating Committee shall have discretion to establish funding for the Company,
The Commission believes that the proposed funding model reflects a reasonable exercise of the Participants' funding authority to recover the Participants' costs related to the CAT. The CAT is a regulatory facility jointly owned by the Participants and, as noted above, the Exchange Act specifically permits the Participants to charge members fees to fund their self-regulatory obligations. The Commission further believes that the proposed funding model is designed to impose fees reasonably related to the Participants' self-regulatory obligations because the fees would be directly associated with the costs of establishing and maintaining the CAT, and not unrelated SRO services.
In its recent amendments to the CAT NMS Plan, the SEC reaffirmed the ability for the Participants to charge Industry Members a CAT fee. Specifically, the SEC noted that the amendments were not intended to change the basic funding structure for the CAT, which may include fees established by the Operating Committee, and implemented by the Participants, to recover from Industry Members the costs and expenses incurred by the Participants in connection with the development and implementation of the CAT.
Finally, as noted by the SEC, the CAT “substantially enhance[s] the ability of the SROs and the Commission to oversee today's securities markets,”
The Original Funding Model employs a bifurcated approach in which costs associated with building and operating the CAT would be borne by (1) Participants and Industry Members that are Execution Venue ATSs for Eligible Securities, and (2) Industry Members (other than Execution Venue ATSs). Under the Proposed Funding Model, the concept of an Execution Venue would be eliminated, and CAT costs would be divided between Participants as a group and Industry Members as a group; Execution Venue ATSs would be treated like other Industry Members, not Participants. Accordingly, the Operating Committee proposes to delete the definition of the term “Execution Venue” and related provisions from the CAT NMS Plan.
The Operating Committee believes that this change would address prior comments regarding the inclusion of ATSs in the Execution Venue category with Participants. First, this proposed change would simplify the model by requiring all Industry Members to pay a fee based on message traffic, rather than treating certain Industry Members—Execution Venue ATSs—in the same manner as Participants, which would pay a fee based on market share. Second, this proposed change would address comments that treating Execution Venue ATSs like Participants would act as a barrier to entry for smaller ATSs.
Section 1.1 of the CAT NMS Plan defines the term “Execution Venue” to mean “a Participant or an alternative trading system (`ATS') (as defined in Rule 300 of Regulation ATS) that operates pursuant to Rule 301 of Regulation ATS (excluding any such ATS that does not execute orders).” The Operating Committee proposes to delete this term and its definition from Section 1.1 of the CAT NMS Plan as the concept will no longer be necessary for the Proposed Funding Model.
The Operating Committee also proposes to amend Section 11.2(c)(i) and (ii) of the CAT NMS Plan to reflect the new approach of the Proposed Funding Model. Section 11.2(c)(i) of the CAT NMS Plan states that the fees charged to “CAT Reporters that are Execution Venues, including ATSs, are based upon the level of market share.” Under the Proposed Funding Model, fees charged to Participants only would be based on market share; fees charged to all Industry Members, including ATSs, will be based on message traffic. Accordingly, the Operating Committee proposes to replace the phrase “CAT Reporters that are Execution Venues, including ATSs” with the term “Participants.”
Section 11.2(c)(ii) of the CAT NMS Plan states that the fees charged to “Industry Members' non-ATS activities are based upon message traffic.” Under the Proposed Funding Model, both the ATS and non-ATS activity of Industry Members will be used as the basis for the fees charged to Industry Members. Accordingly, the Operating Committee proposes to delete the phrase “non-ATS activities” from Section 11.2(c)(ii) of the CAT NMS Plan.
Section 11.3(a) describes the CAT fees to be paid by Execution Venues. Because these fees would be limited to Participants, not to Execution Venues more broadly, the Operating Committee proposes to replace the references to “Execution Venues” with “Participants” in Section 11.3(a) of the CAT NMS Plan. The Operating Committee proposes to replace the reference to “Execution Venues” with “Participants” in Section 11.3(a) of the CAT NMS Plan, which currently states that “[t]he Operating Committee will establish fixed fees to be payable by Execution Venues as provided in this Section 11.3(a).”
The Operating Committee also proposes to replace the references to “Execution Venue” with “Participants” in Section 11.3(a)(i) of the CAT NMS Plan,
(i) Each Execution Venue that: (A) Executes transactions; or (B) in the case of a national securities association, has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange, in NMS Stocks or OTC Equity Securities will pay a fixed fee depending on the market share of that Execution Venue in NMS Stocks and OTC Equity Securities, with the Operating Committee establishing at least two and no more than five tiers of fixed fees, based on an Execution Venue's NMS Stocks and OTC Equity Securities market share. For these purposes, market share for Execution Venues that execute transactions will be calculated by share volume, and market share for a national securities association that has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange in NMS Stocks or OTC Equity Securities will be calculated based on share volume of trades reported, provided, however, that the share volume reported to such national
In addition, the Operating Committee proposes to delete the final clause in Section 11.3(a)(i), which states “provided, however, that the share volume reported to such national securities association by an Execution Venue shall not be included in the calculation of the such national security association's market share.” This proviso was included to clarify how the share volume of an Execution Venue ATS was treated in the context of calculating a national security association's market share when Execution Venue ATSs and Participants were in the same fee category. As Execution Venue ATSs would be treated as Industry Members under the Proposed Funding Model, the Operating Committee proposes to delete this proviso from Section 11.3(a)(i) of the CAT NMS Plan.
Similarly, Section 11.3(a)(ii) of the CAT NMS Plan states that “[e]ach Execution Venue that executes transactions in Listed Options will pay a fixed fee depending on the Listed Options market share of that Execution Venue.” The Operating Committee proposes to replace both references to “Execution Venue” with “Participant.”
Section 11.3(b) of the CAT NMS Plan provides guidance as to how the message traffic for certain ATS activity would be included in the Industry Member message traffic calculations. Specifically, Section 11.3(b) of the CAT NMS Plan, in part, states, the following:
For the avoidance of doubt, the fixed fees payable by Industry Members pursuant to this paragraph shall, in addition to any other applicable message traffic, include message traffic generated by: (i) An ATS that does not execute orders that is sponsored by such Industry Member; and (ii) routing orders to and from any ATS sponsored by such Industry Member.
Under the Original Funding Model, Execution Venue ATSs were treated as Execution Venues, but other ATSs were treated as Industry Members. Accordingly, this statement clarified how message traffic would be counted for ATSs that were not Execution Venue ATSs and for routing to and from ATSs. Under the Proposed Funding Model, however, all ATS activity would be treated as Industry Member activity for purposes of calculating the Industry Member CAT fees. Therefore, because this clarifying statement is unnecessary under the Proposed Funding Model, the Operating Committee proposes to delete this sentence from Section 11.3(b) of the CAT NMS Plan.
As discussed above, the CAT NMS Plan as approved by the Commission provides the Operating Committee with discretion to establish CAT fees to be paid by Participants and Industry Members. The Proposed Funding Model contemplates allocating CAT costs between Participants and Industry Members to permit the calculation of CAT fees based on market share for Participants and based on message traffic for Industry Members.
In proposing a 75%-25% allocation between Industry Members and Participants, Participants considered a variety of different potential allocations between Industry Members and Participants. After analyzing the various alternatives, the Participants determined that the 75%-25% allocation continues to be an equitable allocation of reasonable CAT fees between Industry Members and Participants that balances the costs paid by each CAT Reporter and the regulatory benefits each receives.
The Operating Committee notes that the 75%-25% allocation would have the effect of increasing the cost allocation to Participants by approximately 8% of the total CAT costs in comparison to the Prior Fee Proposal.
The Operating Committee also considered alternatives to the Participant contribution besides the proposed 25% in which Participants paid larger contributions than 25% of the total CAT costs (
The Operating Committee also analyzed the possibility of allocating CAT costs among CAT Reporters—both Participants and Industry Members—based on revenue. Such a revenue-based allocation would impose a more significant portion of the CAT costs on Industry Members. Industry Members would pay approximately 96% of the CAT costs and Participants would pay approximately 4% of the CAT costs. Because the revenue-based allocation would impose such a significant percentage of CAT costs on Industry Members, the Operating Committee determined not to pursue that approach. The Operating Committee also recognized the practical difficulties with determining the appropriate revenue figures for all CAT Reporters.
The Industry Member Allocation of 75% of Total CAT Costs and the Participant Allocation of 25% of Total CAT Costs would be included in the fee schedule for the Consolidated Audit Trail Funding Fees in the CAT NMS Plan. Because the Participant CAT fees would be charged on a quarterly basis, this provision would indicate that the Industry Member Allocation and the Participant Allocation would be calculated based on 1/4th of the Total CAT Costs for the relevant year. Specifically, proposed paragraph (b)(1) of Appendix B of the CAT NMS Plan would state that “The Industry Member Allocation for each quarter shall be 75% of 1/4th of the Total CAT Costs for the relevant year. The Participant Allocation for each quarter shall be 25% of 1/4th of the Total CAT Costs for the relevant year.”
Under the Proposed Funding Model, each Industry Member will pay a CAT fee that is calculated by multiplying each Industry Member's message traffic percentage of the total message traffic of all Industry Members during the relevant time period by the Industry Member Allocation, subject to certain market maker message traffic discounts, a Minimum Industry Member CAT Fee and a Maximum Industry Member CAT Fee. Each Industry Member that is an Options Market Maker will have a discount based on the options trade-to-quote ratio applied to its Options Market Maker message traffic when calculating that Industry Member's message traffic, and each Industry Member that is an Equity Market Maker will have a discount based on the NMS Stock trade-to-quote ratio applied to its Equity Market Maker message traffic when calculating that Industry Member's message traffic. In addition, each Industry Member CAT Reporter will pay a Minimum Industry Member CAT Fee of $125 per quarter if its CAT fee would be less than $125 per quarter when calculated based on message traffic. Furthermore, an Industry Member's CAT fee would be subject to the Maximum Industry Member CAT Fee. The Maximum Industry Member CAT Fee would be the fee calculated based on 8% of the total message traffic for all Industry Members. If an Industry Member's CAT fee is limited to the Maximum Industry Member CAT Fee, any excess amount which the Industry Member would have paid as a fee above such Maximum Industry Member CAT Fee will be re-allocated among all Industry Members (including any Industry Members subject to the Maximum Industry Member CAT Fee and any Industry Members subject to the Minimum Industry Member CAT Fee) in accordance with each Industry Member's percentage of total message traffic. Each of these aspects of the Industry Member CAT fee are discussed in more detail below.
Consistent with the Original Funding Model, the Industry Member Allocation would be allocated among Industry Members based on message traffic. The CAT NMS Plan, as approved by the SEC, contemplates the use of message traffic to apportion the Industry Member Allocation among Industry Members.
The Operating Committee also analyzed the possibility of allocating the Industry Member Allocation among Industry Members based on revenue related to activities in Eligible Securities, which would have been derived from Industry Member revenue reported on FOCUS reports.
While continuing to utilize a message traffic-based model for Industry Members, the Operating Committee proposes to eliminate the use of tiered fees for Industry Members in the Proposed Funding Model. Instead, under the Proposed Funding Model, each Industry Member would pay a fee based solely on its percentage of total Industry Member message traffic (subject to the market maker message traffic discounts, the Minimum Industry Member CAT Fee and the Maximum Industry Member CAT Fee).
By removing the concept of fee tiering for both Industry Members and Participant Allocations, the Proposed Funding Model addresses various comments regarding the use of tiering.
By charging each Industry Member a CAT fee directly based on its own message traffic, rather than charging a tiered fee, the Proposed Funding Model will result in an Industry Member's CAT fee being tied more directly to the Industry Member's message traffic in the CAT. In contrast, with a tiered fee, Industry Members with different levels of message traffic that are placed in the same tier would all pay the same CAT fee, thereby limiting the correlation between an Industry Member's message traffic in the CAT and its CAT fee.
The proposed non-tiering approach is, arguably, more simplistic and objective to administer than the tiering approach. With a tiering approach, the number of tiers for Industry Members, the boundaries for each tier and the fees assigned to each tier must be established. In the absence of clear groupings of Industry Members by message traffic, selecting the number of, boundaries, and the fees associated with each tier would be subject to some level of subjectivity. Furthermore, the establishment of tiers would need to be continually reassessed based on changes in message traffic, thereby requiring regular subjective assessments. Accordingly, the removal of tiering from the funding model eliminates a variety of subjective analyses and judgments from the model, and simplifies the determination of Industry Member CAT fees.
The Operating Committee proposes to amend Sections 11.1(d), 11.2(c), 11.3(a) and 11.3(b) of the CAT NMS Plan to eliminate references to the use of tiered fees and related concepts.
Section 11.1(d) of the CAT NMS Plan states that “[c]onsistent with this Article XI, the Operating Committee shall adopt policies, procedures, and practices regarding the budget and budgeting process, assignment of tiers, resolution of disputes, billing and collection of fees, and other related matters.” With the elimination of tiered fees, the reference to the “assignment of tiers” would no longer be applicable for the Proposed Funding Model. Therefore, the Operating Committee proposes to delete the reference to “assignment of tiers” from Section 11.1(d).
Section 11.1(d) of the CAT NMS Plan also states that:
For the avoidance of doubt, as part of its regular review of fees for the CAT, the Operating Committee shall have the right to change the tier assigned to any particular Person in accordance with fee schedules previously filed with the Commission that are reasonable, equitable and not unfairly discriminatory and subject to public notice and comment, pursuant to this Article XI. Any such changes will be effective upon reasonable notice to such Person.
As noted above, unlike the Original Funding Model, the Proposed Funding Model would not utilize tiered fees. Accordingly, these two sentences would no longer be applicable to the Proposed Funding Model. Therefore, the Operating Committee proposes to delete these two sentences from Section 11.1(d) of the CAT NMS Plan.
The Operating Committee proposes to delete the reference to “tiered” fees from Section 11.2(c) of the CAT NMS Plan. Section 11.2(c) of the CAT NMS Plan states that “[i]n establishing the funding of the Company, the Operating Committee shall seek: . . . (c) to establish a tiered fee structure . . .” The Participants propose to delete the word “tiered” from this provision as the CAT fees would not be tiered under the Proposed Funding Model.
The Operating Committee also proposes to delete paragraph (iii) of Section 11.2(c) of the CAT NMS Plan. Paragraph (iii) of Section 11.2(c) of the CAT NMS Plan states that the Operating Committee shall seek to establish a tiered fee structure in which fees charged to:
Under the Original Funding Model, the comparability provision was an important factor in determining the tiers for Industry Members and Execution Venues. Under the Proposed Funding Model, however, the comparability provision is no longer relevant, as a tiered fee structure would not be used for Industry Members or Participants.
The Operating Committee further proposes to delete the references to tiers in Sections 11.3(a)(i) and (ii) and 11.3(b) of the CAT NMS Plan. Specifically, Section 11.3(a)(i) of the CAT NMS Plan states that the Operating Committee, when establishing fees for Execution Venues for NMS Stocks and OTC Equity Securities, will establish “at least two and no more than five tiers of fixed fees, based on an Execution Venue's NMS Stocks and OTC Equity Securities market share.”
Message traffic will be calculated based on Industry Members' Reportable Events reported to the CAT as defined in the CAT Reporting Technical Specifications for Industry Members (“IM Reporting Tech Specs”) as amended from time to time.
In the Original Funding Model, Options Market Maker message traffic and Equity Market Maker message traffic would have been treated the same as other message traffic for purposes of calculating Industry Member CAT fees.
By imposing a discount on Options Market Makers and Equity Market Makers' message traffic for the calculation of message traffic, the Operating Committee believes that the proposed CAT fees for market makers would satisfy the requirements of the funding principles set forth in Section 11.2 of the CAT NMS Plan as well as the requirements of the Exchange Act. First, the proposed market maker discounts are designed to address comments that the Original Funding Model could disproportionately affect market makers, thereby leading to a reduction in liquidity and market quality. Commenters noted that charging Industry Members on the basis of message traffic will impact market makers disproportionately because of their continuous quoting obligations. With their continuous quoting obligations, market makers would have higher levels of message traffic, and the type of message traffic (bids and offers rather than transactions) are not necessarily related to higher revenue. The SEC repeatedly has recognized the value of protecting the provision of market liquidity, and afforded market makers favorable regulatory treatment by virtue of their role as liquidity providers. For example, market makers receive favorable treatment under short sale rules,
Second, although the proposed discounts would provide market makers with a benefit not provided to other market participants, such discounts would not amount to unfair discrimination or an unnecessary or inappropriate burden on competition. As discussed above, the SEC has recognized repeatedly that such favorable treatment for market makers in other contexts was not unfairly discriminatory or a burden on competition in light of its positive effects on market quality, nor was it considered to involve an inequitable allocation of fees among members.
Third, the Operating Committee believes that the proposed fees appropriately take into account the distinctions in the securities trading operations of different Industry Members, and avoid disincentives, such as a reduction in market quality, as required under the funding principles of the CAT NMS Plan.
Finally, the Operating Committee believes that the trade-to-quote ratio is an appropriate method for discounting market maker message traffic, including because of the relatively few quotes that ultimately execute. As discussed above, the vast majority of quotes market makers submit are intended to price the market and provide liquidity against which orders may execute. The Operating Committee proposes to use the trade-to-quote ratio for calculating the discount because it directly relates to the issue regarding the quoting requirement (
To address issues regarding the potential burdens on competition and market quality of including Options Market Maker message traffic in the calculation of message traffic, the Operating Committee proposes to discount Options Market Maker message traffic based on the trade-to-quote ratio for options when calculating the message traffic for Options Market Makers.
The relevant trade-to-quote ratio for the Options Market Maker discount would be calculated each quarter based on the prior quarter's CAT data. The discount is calculated by dividing the adjusted trade count (that is, the total number of trades for the quarter minus the total number of trade busts) by the total number of quotes received by the securities information processors (“SIP”) from an exchange. As an example, the trade-to-quote ratio for Listed Options for the fourth quarter of 2020 was 0.01%.
Accordingly, each Options Market Maker's discounted message traffic count would be calculated by multiplying its message traffic by the options trade-to-quote ratio. The Options Market Maker's CAT fee then would be calculated by multiplying its discounted percentage of the total message traffic of all Industry Members during the relevant time
Similar to the treatment of Options Market Maker message traffic, the Operating Committee proposes to discount Equity Market Maker message traffic based on the trade-to-quote ratio for NMS Stocks when calculating the message traffic for Equity Market Makers. Specifically, for each Equities Market Maker, a discount would be applied to all message traffic reported to the CAT by the Equities Market Maker related to an order originated by a market maker in its market making account for a security in which it is registered,
The relevant trade-to-quote ratio for the Equity Market Maker discount would be calculated each quarter based on the prior quarter's CAT data. The discount is calculated by dividing the adjusted trade count (that is, the total number of trades for the quarter minus the total number of trade busts) by the total number of quotes received by the SIP from an exchange. As an example, the trade-to-quote ratio for NMS Stocks for the fourth quarter of 2020 was 4.77%.
The Equity Market Maker CAT fee would be calculated in the same manner as the Options Market Maker CAT fee. Each Equity Market Maker's discounted message traffic count would be calculated by multiplying its message traffic by the NMS Stock trade-to-quote ratio. The Equity Market Maker CAT fee then would be calculated by multiplying its discounted percentage of the total message traffic of all Industry Members during the relevant time period
To implement the proposed market maker discounts, the Operating Committee proposes to revise Section 11.3(b) of the CAT NMS Plan to reflect the application of such discounts. Specifically, the Operating Committee proposes to amend the statement in Section 11.3(b) that “[t]he Operating Committee will establish fixed fees to be payable by Industry Members, based on the message traffic generated by such Industry Members” to add the concept of the market maker discounts. Specifically, the Operating Committee proposes to qualify this statement by the phrase “subject to . . . discounts for market maker message traffic.”
The Operating Committee proposes to require all Industry Members to pay at least a minimum fee for each relevant period. Specifically, the Operating Committee proposes to impose a Minimum Industry Member CAT Fee of $125 per quarter on an Industry Member if its CAT fee would be less than $125 per quarter when calculated based on message traffic. All Industry Members required to report to the CAT, including those that have not yet begun to report to the CAT due to the phased implementation schedule for the CAT, would be subject to the Minimum Industry Member CAT Fee. If any Industry Member is required to pay the Minimum Industry Member CAT Fee, the total additional amount paid by all such Industry Members over the amount they otherwise would have paid as a result of their message traffic calculation would be discounted from all Industry Members other than those that were subject to a Minimum Industry Member CAT Fee in accordance with their message traffic percentage.
A minimum fee of $125 per quarter ensures that all Industry Members
Such a minimum fee also would contribute to the ease of billing and other administrative functions, in accordance with the funding principle set forth in Section 11.2(d) of the CAT NMS Plan.
To implement the Minimum Industry Member CAT Fee, the Operating Committee proposes to revise Section 11.3(b) of the CAT NMS Plan to reflect the imposition of a minimum fee. Specifically, the Operating Committee proposes to amend the statement in Section 11.3(b) that “[t]he Operating Committee will establish fixed fees
The Operating Committee proposes to establish a maximum fee to be paid by Industry Members. Under the Proposed Funding Model, Industry Members would pay a CAT fee based on their proportionate message traffic in NMS Stocks, subject to a maximum fee. The maximum fee for Industry Members would be the fee calculated based on 8% of the total message traffic for Industry Members. If an Industry Member's fee is limited to the Maximum Industry Member CAT Fee, any excess amount which the Industry Member otherwise would have paid as a fee above such Maximum Industry Member CAT Fee would be re-allocated among all Industry Members including any Industry Members subject to the Maximum Industry Member CAT Fee and any Industry Members subject to the Minimum Industry Member CAT Fee in accordance with its message traffic.
The imposition of the Maximum Industry Member CAT Fee serves as a method to institute a cap on fees in order to fairly allocate costs to Industry Members as using message traffic alone potentially may result in certain Industry Members paying a significant allocation of Total CAT Costs. In this way, the proposed Maximum Industry Member CAT Fee would address the potential for outsized fees that were previously addressed via the tiering and comparability provisions set forth in the Original Funding Model and the Prior Fee Proposal. These provisions sought to impose similar levels of fees on comparable CAT Reporters.
The Operating Committee proposes to revise Section 11.3(b) of the CAT NMS Plan to implement the proposed Maximum Industry Member CAT Fee. Specifically, the Operating Committee proposes to amend Section 11.3(b) of the CAT NMS Plan to state that
The Operating Committee proposes to eliminate references in the CAT NMS Plan to “fixed fees” used with regard to the CAT fees to be paid by Industry Members. The CAT fees to be paid by Industry Members may vary from time to time in accordance with their message traffic. Accordingly, the Operating Committee proposes to replace the reference to “fixed fees” for Industry Members in Section 11.3(b) with references to “fees.”
Like Industry Members, Participants would also be required to pay a CAT fee. The total CAT fees to be paid by Participants as a group would be designed to cover the Participant Allocation. Each Participant would pay a minimum CAT fee of 0.75% of the Participant Allocation, referred to as the “Minimum Participant Fee.” The Participant Allocation minus the total Minimum Participant Fees required to be paid by each Participant (the “Adjusted Participant Allocation”) would be divided between Equities Participants and Options Participants. Equities Participants as a group would pay 60% of the Adjusted Participant Allocation (“Equities Participant Allocation”) and Options Participants as a group would pay 40% of the Adjusted Participant Allocation (the “Options Participant Allocation”). The Equities Participant Allocation would be divided among Equities Participants based on market share of NMS Stocks, although FINRA would not pay more than the Maximum Equities Participant Fee (plus any additional re-allocation of costs above the fee cap). The Options Participant Allocation would be divided among Options Participants based on market share in Listed Options.
The Operating Committee notes that allocating the Participant Allocation among the Participants is different from allocating the Industry Member Allocation among Industry Members. Unlike Industry Members, the Participants are each parties to the CAT NMS Plan and, therefore, have been engaged in negotiations among themselves regarding the allocation of CAT costs among Participants and the amendment of the CAT NMS Plan to address the CAT funding model. Accordingly, the Participants believe that the proposed method for allocating
The Operating Committee proposes to require each Participant to pay at least a minimum CAT fee, regardless of its market share. Specifically, the Operating Committee proposes to require each Participant to pay a minimum CAT fee of 0.75% of the Participant Allocation, referred to as the Minimum Participant Fee. The Minimum Participant Fee will be paid by each registered national securities exchange that is a Participant and each registered national securities association that is a Participant, not by each market operated by the Participants. This Minimum Participant Fee is intended to ensure that all Participants provide a meaningful contribution to the funding of the CAT, as the CAT is intended to assist all market participants by creating enhanced oversight of the markets.
The Operating Committee proposes to revise Section 11.3(a) of the CAT NMS Plan to reflect the imposition of the Minimum Participant Fee. Specifically, the Operating Committee proposes to amend Section 11.3(a) of the CAT NMS Plan to state that “[t]he Operating Committee will establish a minimum fee to be payable by each Participant” in addition to fees based on market share.
In addition, as discussed below, the Minimum Participant Fee would be included in the fee schedule for the Consolidated Audit Trail Funding Fees set forth in Appendix B of the CAT NMS Plan. Proposed paragraph (a)(1)(A) of Appendix B of the CAT NMS Plan would state that each Participant would pay a CAT fee that includes the Minimum Participant Fee. Paragraph (b)(2) of Appendix B would state that “[t]he Minimum Participant Fee is 0.75% of the Participant Allocation.” Paragraph (b)(2) of Appendix B would further clarify how the Minimum Participant Fee would be imposed by stating that “[f]or avoidance of doubt, the Minimum Participant Fee will be paid by each registered national securities exchange that is a Participant and each registered national securities association that is a Participant.”
The Participant Allocation minus the total Minimum Participant Fees required to be paid by each Participant, referred to as the “Adjusted Participant Allocation,” will be divided among the Participants as described below. The Operating Committee proposes to include this definition of “Adjusted Participant Allocation” in proposed paragraph (b)(3) of the Appendix B. Specifically, proposed paragraph (b)(3) of Appendix B would state that “[t]he Adjusted Participant Allocation is the Participant Allocation minus the sum of all Minimum Participant Fees required to be paid by each Participant.”
Under the Proposed Funding Model, the Adjusted Participant Allocation would be allocated among Participants based on market share. The use of market share for this purpose is in accordance with the CAT NMS Plan as adopted by the SEC. Specifically, the CAT NMS Plan contemplates Participants paying a CAT fee based upon market share.
The Operating Committee proposes to amend Section 11.3(a) of the CAT NMS Plan to clarify that the Participants will pay a fee based on market share. Specifically, the Operating Committee proposes to add the phrase “based on market share” to Section 11.3(a) of the CAT NMS Plan. With this change and the changes discussed above, Section 11.3(a) of the CAT NMS Plan would state that “[t]he Operating Committee will establish a minimum fee to be payable by each Participant in addition to fees based on market share to be payable by Participants as provided in this Section 11.3(a).”
The Operating Committee proposes to eliminate the use of tiered fees for Participants in the Proposed Funding Model. The Operating Committee proposes to allocate the Adjusted Participant Allocation among Participants based on the Participant's market share without relying on tiered fees for the reasons discussed above with regard to Industry Members. As discussed above, the Operating Committee proposes to amend Sections 11.1(d), 11.2(c), 11.3(a) and 11.3(b) to eliminate the concept of tiered fees from the CAT NMS Plan.
The Operating Committee proposes to divide the Adjusted Participant Allocation between Equities Participants and Options Participants because it is difficult to compare market share between asset classes (
Under the Proposed Funding Model, the Equities Participant Allocation would be 60% of the Adjusted Participant Allocation and, correspondingly, the Options Participants Allocation would be 40% of the Adjusted Participant Allocation. If a Participant has both options and equities market share, then such Participant will be treated as both an Equities Participant and an Options Participant.
The Operating Committee believes that the proposed 60%-40% allocation between Equities Participants and Options Participants is an appropriate allocation among Participants. The allocation among the Equities and Options Participants has been the subject of negotiations among the Participants. In addition, in the Prior Fee Proposal, the Operating Committee proposed a 67%/33% allocation between Equity Execution Venues and Options Execution Venues based on the comparability concept.
As discussed below, the 60%-40% allocation of the Adjusted Participant Allocation between Equities Participants and Options Participants would be included in the fee schedule for the Consolidated Audit Trail Funding Fees in the CAT NMS Plan. Proposed paragraph (b)(4) of Appendix B of the CAT NMS Plan would state that “[t]he Equities Participant Allocation is 60% of the Adjusted Participant Allocation,” and proposed paragraph (b)(5) of Appendix B of the CAT NMS Plan would state that “[t]he Options Participant Allocation is 40% of the Adjusted Participant Allocation.”
The Equities Participant Allocation would be divided among Equities Participants based on market share of NMS Stocks in accordance with Section 11.3(a)(i) of the CAT NMS Plan. An Equities Participant's market share in NMS Stocks would be determined by calculating each Equities Participant's proportion of the total volume of NMS Stock shares reported by all Equities Participants during the relevant time period. Accordingly, in addition to the Minimum Participant Fee, each Equities Participant will pay a CAT fee that is calculated by multiplying (x) each Equities Participant's percentage of the total volume of NMS Stock shares during the relevant time period by (y) the Equities Participant Allocation, subject to the Maximum Equities Participant Fee.
As discussed below, the Operating Committee proposes to include the allocation of the Equities Participant Allocation in the fee schedule for the Consolidated Audit Trail Funding Fees in the CAT NMS Plan. Proposed paragraph (a)(1)(B) of Appendix B of the CAT NMS Plan would state that Equities Participants would pay a CAT fee calculated by adding the sum of the Minimum Participant Fee and the lesser of “the product of multiplying the Equities Participant's percentage of total market share of NMS Stocks for all Equities Participants against the Equities Participant Allocation; or (ii) the Maximum Equities Participant Fee, if applicable.”
Under the Original Funding Model, market share for a national securities association was calculated based on the share volume of trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange in NMS Stocks or OTC Equity Securities. Under the Proposed Funding Model, the Operating Committee proposes to calculate market share for national securities associations solely based on share volume of trades reported in NMS Stocks. Correspondingly. [sic] the calculation of total market share and market share for each Equities Participant would not include reported share volume in OTC Equity Securities.
The Operating Committee proposes to calculate market share for national securities associations without reference to trades reported in OTC Equity Securities. Many OTC Equity Securities are priced at less than one dollar—and a significant number at less than one penny—per share and low-priced shares tend to trade in larger quantities. Accordingly, a large number of shares are involved in transactions involving OTC Equity Securities versus NMS Stocks. Because the proposed CAT fees for Equities Participants are based on market share calculated by share volume, FINRA would likely be subject to higher fees if OTC Equity Securities were included in the calculation of market share.
The Operating Committee proposes to exclude OTC Equity Securities share volume in the calculation of market share, rather than to use a discounting approach proposed in the Prior Fee Proposal. In the Prior Fee Proposal, the Operating Committee proposed to discount the share volume of trades reported in OTC Equity Securities when calculating the market share for national securities associations and Execution Venue ATSs.
To implement this proposed change, the Operating Committee proposes to delete the references to OTC Equity Securities from Section 11.3(a)(i) of the CAT NMS Plan. Specifically, the Operating Committee proposes to delete the phrase “or OTC Equity Securities” from Section 11.3(a)(i)(B) of the CAT NMS Plan, which states in relevant part “in the case of a national securities association, has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange, in NMS Stocks or OTC Equity Securities.” Similarly, the Operating Committee proposes to delete the phrase to “or OTC Equity Securities” in the statement in Section 11.3(a)(i) of the CAT NMS Plan that “market share for a national securities association that has trades reported by its members to its trade reporting facility or facilities for reporting transactions effected otherwise than on an exchange in NMS Stocks or OTC Equity Securities will be calculated based on share volume of trades reported.”
The Operating Committee proposes to establish a maximum fee to be paid by a national securities association that is a Participant. Currently, FINRA is the only national securities association that is a Participant in the CAT NMS Plan. Under the Proposed Funding Model, FINRA would pay a CAT fee based on its proportionate market share in NMS Stocks, subject to a maximum fee. The maximum fee allocated to FINRA would be the greater of (x) 20% of the Equities Participant Allocation or (y) the highest CAT fee required to be paid by any other Equities Participant plus 5% of such highest CAT fee (the “Maximum Equities Participant Fee”). If FINRA's fee is limited to the Maximum Equities Participant Fee, any excess amount which FINRA otherwise would have
The imposition of the Maximum Equities Participant Fee serves as a method to institute a cap on fees in order to fairly allocate costs to FINRA given that a market share approach potentially may result in FINRA having a significant allocation given the large volume of NMS Stock activity that is subject to trading reporting on FINRA facilities, and potentially may not accurately reflect a fair allocation of costs to FINRA. In this way, the proposed Maximum Equities Participant Fee would address the potential for outsized fees that were previously addressed via the tiering and comparability provisions set forth in the Original Funding Model and the Prior Fee Proposal. These provisions sought to impose similar levels of fees on comparable CAT Reporters.
The Operating Committee proposes to revise Section 11.3(a)(i) of the CAT NMS Plan to implement the proposed Maximum Equities Participant Fee. Specifically, the Operating Committee proposes to amend Section 11.3(a)(i) of the CAT NMS Plan to state that
In addition, as discussed below, the Operating Committee proposes to include the Maximum Equities Participant Fee in the fee schedule for the Consolidated Audit Trail Funding Fees in the CAT NMS Plan. Proposed paragraph (a)(1)(B)(ii) of Appendix B of the CAT NMS Plan would describe the application of the Maximum Equities Participant Fee. Specifically, proposed paragraph (a)(1)(B) would state that Equities Participants would pay a CAT fee calculated by adding the sum of the Minimum Participant Fee and the following:
(B) For Equities Participants, the lesser of:
(i) the product of multiplying the Equities Participant's percentage of total market share of NMS Stocks for all Equities Participants against the Equities Participant Allocation; or
(ii) the Maximum Equities Participant Fee, if applicable; and
If any Participant's fee is limited to the Maximum Equities Participant Fee, any excess amount which such Participant otherwise would have paid as a fee above such Maximum Equities Participant Fee will be re-allocated among all Equities Participants (including any Equities Participant subject to the Maximum Equities Participant Fee) in accordance with their market share.
Furthermore, proposed paragraph (b)(6) of Appendix B of the CAT NMS Plan would state:
The Maximum Equities Participant Fee is the greater of (x) 20% of the Equities Participant Allocation or (y) the highest CAT fee required to be paid by any other Equities Participant plus 5% of such highest CAT fee. The Maximum Equities Participant Fee only applies to a Participant that is a national securities association.
The Options Participant Allocation would be divided among Options Participants based on market share in Listed Options in accordance with Section 11.3(a)(ii) of the CAT NMS Plan. An Options Participant's market share in Listed Options would be determined by calculating the total volume of Listed Options contracts reported by all Options Participants during the relevant time period. Accordingly, each Options Participant would pay a CAT fee that is calculated by multiplying (x) each Options Participant's percentage of the total market share in Listed Options during the relevant time period by (y) the Options Participant Allocation.
As discussed below, the Operating Committee proposes to include the allocation of the Options Participant Allocation in the fee schedule for the Consolidated Audit Trail Funding Fees in the CAT NMS Plan. Proposed paragraph (a)(1)(C) of Appendix B of the CAT NMS Plan would state that Options Participants would pay a CAT fee calculated by adding the sum of the Minimum Participant Fee and “the product of multiplying the Participant's percentage of total market share of Listed Options contracts for all Options Participants against the Options Participant Allocation.”
The Operating Committee proposes to eliminate references to “fixed fees” used with regard to the CAT fees to be paid by Participants. As discussed above with regard to Industry Member CAT fees, the CAT fees to be paid by Participants may vary from time to time in accordance with their market share. Accordingly, the Operating Committee proposes to replace the references to “fixed fees” for Participants in Sections 11.3(a), 11.3(a)(i) and 11.3(a)(ii) with references to “fees.”
To recover the costs of the CAT going forward, the Operating Committee proposes to charge Participants a quarterly CAT fee calculated based on the allocation of Total CAT Costs pursuant to the Proposed Funding Model. The Operating Committee will use the costs set forth in the annual operating budget as the Total CAT Costs in the calculation of the Participant CAT Fee.
The Total CAT Costs budgeted for the year would be comprised of all fees, costs and expenses estimated to be incurred by or for the Company in connection with the development, implementation and operation of the CAT during this period. These CAT costs would include, but not be limited to, Plan Processor costs, insurance costs, third-party support costs and an operational reserve. The Plan Processor costs would consist of the Plan Processor's ongoing costs, including development costs. This amount would be based upon the fees due to the Plan Processor pursuant to the Company's agreement with the Plan Processor. Insurance costs would include cyber insurance and director liability insurance. The third-party support costs would include legal fees, consulting fees, vendor fees and audit fees. In addition, the Operating Committee aims to accumulate the necessary funds to establish an operating reserve for the Company through the CAT fees charged to CAT Reporters. As set forth in Section 11.1(a) of the CAT NMS Plan, the Operating Committee may include in the budget “funding of any reserve that the Operating Committee reasonably deems appropriate for prudent operation of the Company.”
To implement the Participant CAT fees, the Exchange proposes to add a fee schedule, entitled “Consolidated Audit Trail Funding Fees,” to Exhibit [sic] B of the CAT NMS Plan. As discussed above, proposed paragraph (a) states the following:
Each Participant shall pay to Consolidated Audit Trail, LLC in the manner prescribed by the Consolidated Audit Trail, LLC a CAT fee calculated as follows:
(1) Commencing upon SEC approval of the CAT fee, each Participant shall pay a quarterly CAT fee based on market share from the prior quarter calculated by adding the sum of the following:
(A) For all Participants, the Minimum Participant Fee;
(B) For Equities Participants, the lesser of:
(i) the product of multiplying the Equities Participant's percentage of total market share of NMS Stocks for all Equities Participants against the Equities Participant Allocation; or
(ii) the Maximum Equities Participant Fee, if applicable; and
If any Participant's fee is limited to the Maximum Equities Participant Fee, any excess amount which such Participant otherwise would have paid as a fee above such Maximum Equities Participant Fee will be re-allocated among all Equities Participants (including any Equities Participant that is subject to the Maximum Equities Participant Fee) in accordance with their market share.
(C) For Options Participants, the product of multiplying the Participant's percentage of total market share of Listed Options contracts for all Options Participants against the Options Participant Allocation;
For the avoidance of doubt, Participants with both options and equities market share shall be considered both Equities Participants and Options Participants.
As described above, proposed paragraph (b) of Appendix B of the CAT NMS Plan would provide the variables necessary to calculate Participant CAT fees in accordance with paragraph (a). Specifically, paragraph (b) would state that “[t]he CAT fees set forth in paragraph (a) will be calculated based on the following.” Proposed paragraph (b)(1) of the fee schedule would state that “[t]he Industry Member Allocation for each quarter shall be 75% of 1/4th of the Total CAT Costs for the relevant year. The Participant Allocation for each quarter shall be 25% of 1/4th of the Total CAT Costs for the relevant year.” Proposed paragraph (b)(2) of the fee schedule would state that “[t]he Minimum Participant Fee is 0.75% of the Participant Allocation. For avoidance of doubt, the Minimum Participant Fee will be paid by each registered national securities exchange that is a Participant and each registered national securities association that is a Participant.” Proposed paragraph (b)(3) of the fee schedule would state that “[t]he Adjusted Participant Allocation is the Participant Allocation minus the sum of all Minimum Participant Fees required to be paid by each Participant.” Proposed paragraph (b)(4) of the fee schedule would state that “[t]he Equities Participant Allocation is 60% of the Adjusted Participant Allocation.” Proposed paragraph (b)(5) of the fee schedule would state that “[t]he Options Participant Allocation is 40% of the Adjusted Participant Allocation.” Proposed paragraph (b)(6) of the fee schedule would state that the “[t]he Maximum Equities Participant Fee is the greater of (x) 20% of the Equities Participant Allocation or (y) the highest CAT fee required to be paid by any other Equities Participant plus 5% of such second highest CAT fee. The Maximum Equities Participant Fee only applies to a Participant that is a national securities association.”
Finally, proposed paragraph (b)(7) of the fee schedule would state that “[t]he Total CAT Costs shall be the total annual budgeted costs for the CAT for the relevant year.” Proposed paragraph (b)(7) of the fee schedule would further state that “[t]he total budgeted costs for the CAT for the relevant year may be adjusted on a quarterly basis as the Operating Committee reasonably deems appropriate for the prudent operation of the Company. To the extent that the Operating Committee adjusts the total budgeted costs for the CAT for the relevant year during its quarterly budget review, the adjusted total budgeted costs for the CAT will be used in calculating the remaining quarterly CAT fees for that year.”
The following chart summarizes the imposition of the Quarterly CAT Fee for Participants each year commencing upon approval by the SEC and continuing each year thereafter.
Note that, if the SEC approves the proposed CAT fees mid-year, the Operating Committee proposes to require Participants to commence payment of the Participant CAT Fee in the first quarter after the quarter in which the SEC approves the fee. Participants will be required to pay a quarterly fee for the remaining quarter(s) of the year based on CAT Data from the prior quarter, using the portion of the annual budget for those remaining quarter(s) of the year. For example, if the SEC approves the CAT fees in the third quarter of 2021, then the Participants would be required to pay their first quarterly CAT fee during the fourth quarter of 2021 based on the market share calculation using CAT Data from the third quarter of 2021 and one quarter of the budgeted annual CAT costs for 2021.
The Operating Committee has determined to charge Industry Members fees related to CAT costs in accordance with the Proposed Funding Model. To implement these CAT fees, each Participant would submit a fee filing pursuant to Section 19(b) of the Exchange Act to propose to add a section entitled “Consolidated Audit Trail Funding Fees” to its fee schedule, and to describe the following CAT fees in that section. Because the Participants have funded the CAT to date and CAT fees imposed on Industry Members are guided by the Financial Accountability Milestones, the Operating Committee proposes four categories of CAT fees: the Historical CAT Assessment (for pre-Period 1, Period 1 and Period 2), Period 3 CAT Fee, Period 4 CAT Fee, and the Quarterly CAT Fee.
The Operating Committee determined to charge Industry Members a historical assessment (“Historical CAT Assessment”) to recover certain CAT costs incurred prior to January 1, 2021 (“Historical CAT Assessment Costs”). Specifically, the Historical CAT Assessment is intended to collect from Industry Members 75% of certain costs incurred through June 22, 2020, the effective date for the Financial Accountability Milestones,
The Participants have already funded all CAT costs incurred prior to January 1, 2021. Accordingly, only Industry Members would be required to pay the Historical CAT Assessment. To implement the Historical CAT Assessment, each Participant would submit a fee filing pursuant to Section 19(b) of the Exchange Act describing the Historical CAT Assessment.
The following describes the Historical CAT Assessment Costs for the period prior to June 22, 2020 and the period from June 22, 2020 through December 31, 2020 in more detail. The Total CAT Costs incurred prior to June 22, 2020 (other than Excluded Costs and certain costs related to the conclusion of the relationship with Thesys CAT, LLC) is $153,268,597. The Historical CAT Assessment to be paid by Industry Members would be designed to recover 75% of these total costs, which is $114,951,448. These cost figures are further described below.
• In accordance with Section 11.1(c) of the CAT NMS Plan, the Historical CAT Assessment Costs would include “fees, costs and expenses (including legal and consulting fees and expenses) incurred by the Participants on behalf of the Company prior to the Effective Date in connection with the creation and implementation of the CAT.” Specifically, the Historical CAT Assessment Costs include costs incurred from 2012 through November 20, 2016 related to the development of the National Market System Plan Governing the Process of Selecting a Plan Processor and Developing a Plan for the Consolidated Audit Trail
• The Historical CAT Assessment Costs would include costs incurred after the formation of the CAT NMS Plan and prior to the selection of Thesys CAT, LLC as the Plan Processor for the CAT, which covers the period from November 21, 2016 through April 5, 2017. The total cost for this period is $2,933,869. The Historical CAT Assessment would be designed to recover 75% of these total costs, which is $2,200,402.
• The Historical CAT Assessment Costs would include costs incurred during the period in which Thesys CAT, LLC was the Plan Processor for the CAT, which was April 6, 2017 through March 28, 2019. The total costs for this period are $106,256,258. The Participants, however, have determined to exclude from the Historical CAT Assessment Costs all costs incurred from November 15, 2017 through November 15, 2018 (“Excluded Costs”) due to the delay in the reporting to the CAT. The Excluded Costs are $48,874,937. Accordingly, the total costs for this period are $57,381,321. The Historical CAT Assessment would be designed to recover 75% of these total costs, which is $43,035,991.
• The Historical CAT Assessment Costs would include the Total CAT Costs from the date of FINRA CAT's selection as the Plan Processor on March 29, 2019 through June 21, 2020. The total costs for this period are $79,110,525.
The Historical CAT Assessment Costs also would include the certain CAT costs incurred from June 22, 2020 through July 31, 2020, which is Period 1 of the Financial Accountability Milestones, as well as the Total CAT Costs incurred from August 1, 2020 through December 31, 2020, which is Period 2 of the Financial Accountability Milestones, subject to certain
Using the Historical CAT Assessment Costs, the Operating Committee would calculate the Historical CAT Assessment owed by each Industry Member in accordance with the Proposed Funding Model. The Operating Committee proposes to seek to recover the Historical CAT Assessment Costs over a period of four calendar quarters, commencing upon the SEC's approval of the Historical CAT Assessment. Each quarter, each Industry Member would pay the greater of the minimum fee of $125 or the Industry Member's fee calculated based on message traffic (subject to the market making discounts and the maximum fee). The message traffic fee would be calculated by multiplying the percentage of the Industry Member's message traffic of the total Industry Member message traffic (subject to applicable discounts for Options and Equity Market Maker message traffic and the Maximum Industry Member CAT Fee) by $36,238,752, which is 1/4th of the Historical CAT Assessment Costs. Each Industry Member's message traffic would be calculated using CAT Data from the prior quarter. The Operating Committee proposes to commence charging the Historical CAT Assessment in the first quarter after SEC approval of the Historical CAT Assessment, based on CAT Data from the quarter in which the SEC approved the CAT fees. The following chart summarizes the imposition of the Historical CAT Assessment:
In accordance with Section 11.6(b) of the CAT NMS Plan, the Operating Committee indicates that the proposed Historical CAT Assessment seeks to recover costs that are related to Post-Amendment Expenses incurred during Period 1. Period 1 began on June 22, 2020, the effective date of Section 11.6 of the CAT NMS Plan, and concluded on July 31, 2020, the date of Initial Industry Member Core Equity and Options Reporting. As indicated by the Participants' Quarterly Progress Report,
The Operating Committee also indicates that the proposed Historical CAT Assessment seeks to recover costs that are related to Post-Amendment Expenses incurred during Period 2. Period 2 began on August 1, 2020, and concluded on December 31, 2020, the date of the Full Implementation of Core Equity Reporting. As indicated by the Participants' Quarterly Progress Report,
The Operating Committee also determined to charge Industry Members a quarterly fee to recover the Total CAT Costs incurred from January 1, 2021 through December 31, 2021, referred to as the Period 3 CAT Fee. The Total CAT Costs incurred from January 1, 2021 through December 31, 2021 (“Period 3 CAT Costs”) will be calculated at the completion of 2021. Specifically, the Period 3 CAT Costs will be the total actual costs incurred for the CAT for 2021 as set forth in the 2021 financial statements for the Company. Using the Period 3 CAT Costs, the Operating Committee will calculate the Period 3 CAT Fee owed by each Industry Member in accordance with the Proposed Funding Model. The Operating Committee proposes to seek to recover Period 3 CAT Costs over a period of four calendar quarters, commencing in 2022.
To implement
The Operating Committee indicates that the proposed Period 3 CAT Fee seeks to recover costs that will be related to Post-Amendment Expenses incurred during Period 3. Period 3 began on January 1, 2021 and is expected to conclude on December 31, 2021, the date of Full Availability and Regulatory Utilization of Transactional Database Functionality. As discussed above, the Period 3 CAT Costs to be recovered via the Period 3 CAT Fee would include fees, costs and expenses incurred by or for the Company in connection with the development, implementation and operation of the CAT during the period from January 1, 2020 through December 31, 2021. The Participants' collection of the full amount of the Period 3 CAT Fee will depend upon the achievement of Full Availability and Regulatory Utilization of Transaction Database Functionality by December 31, 2021; if not, the amount of the Period 3 CAT Fee that may be collected from the Industry Members will depend upon the fee limitations set forth in Section 11.6 of the CAT NMS Plan.
The Operating Committee also determined to charge Industry Members a quarterly fee to recover the Total CAT Costs incurred from January 1, 2022 through December 31, 2022, referred to as the Period 4 CAT Fee. The Total CAT Costs incurred from January 1, 2022 through December 31, 2022 (“Period 4 CAT Costs”) will be calculated at the completion of 2022. Specifically, the Period 4 CAT Costs will be the total actual costs incurred for the CAT for 2022 as set forth in the 2022 financial statements for the Company. Using the Period 4 CAT Costs, the Operating Committee will calculate the Period 4 CAT Fee owed by each Industry Member in accordance with the Proposed Funding Model. The Operating Committee proposes to seek to recover Period 4 CAT Costs over a period of four calendar quarters, commencing in 2023.
To implement
The Operating Committee indicates that the proposed Period 4 CAT Fee seeks to recover costs that will be related to Post-Amendment Expenses incurred during Period 4. Period 4 is expected to begin on January 1, 2022
To recover the costs of the CAT going forward beginning in 2023, the Operating Committee determined to charge Industry Members an ongoing quarterly CAT fee calculated based on the allocation of Total CAT Costs pursuant to the Proposed Funding Model (“Quarterly CAT Fee”). The Operating Committee will use the costs set forth in the annual operating budget as the Total CAT Costs in the calculation of the Quarterly CAT Fee. Specifically, the Total CAT Costs budgeted for the upcoming year will be the costs set forth in the annual operating budget for the Company required pursuant to Section 11.1(a) of the CAT NMS Plan. As discussed above with regard to the Participant CAT fee, CAT costs would include, but not be limited to, Plan Processor costs, insurance costs, third-party support costs and an operational reserve.
The Operating Committee proposes to seek to recover the budgeted Total CAT Costs over the course of the year. Each quarter, each Industry Member will pay the greater of the minimum fee of $125 or the Industry Member's fee calculated based on message traffic.
To implement the Quarterly CAT Fee, each Participant would submit a fee filing pursuant to Section 19(b) of the Exchange Act describing the method for calculating the Quarterly CAT Fee. The Operating Committee will announce at the beginning of the relevant year via a CAT alert the budgeted Total CAT Costs to be used in calculating the Quarterly CAT Fees for that year.
Pursuant to Section 11.4 of the CAT NMS Plan, the Operating Committee proposes to establish a system for the collection of CAT fees. The Consolidated Audit Trail, LLC will provide each Participant with an invoice setting forth the Participants' quarterly CAT fee for each payment period. Each Participant will pay its CAT fees to the Consolidated Audit Trail, LLC via the centralized system for the collection of CAT fees established by the Consolidated Audit Trail, LLC in the manner prescribed by the Consolidated Audit Trail, LLC. As set forth in Section 11.4 of the CAT NMS Plan, each Participant shall pay all its CAT fees authorized under the CAT NMS Plan as required by Section 3.7(b) of the CAT NMS Plan.
The Operating Committee also determined the time and manner in which Industry Member CAT fees will be paid. The Operating Committee determined that the Consolidated Audit Trail, LLC will provide each Industry Member with an invoice setting forth the Industry Member's Historical CAT Assessment, Period 3 CAT Fee, Period 4 CAT Fee and/or Quarterly CAT Fee (as applicable) for each payment period. Consolidated Audit Trail, LLC will provide each Industry Member with one invoice each payment period for its CAT fees, regardless of whether the Industry Member is a member of multiple self-regulatory organizations. Each Industry Member will pay its CAT fees to the Consolidated Audit Trail, LLC via the centralized system for the collection of CAT fees established by the Consolidated Audit Trail, LLC in the manner prescribed by the Consolidated Audit Trail, LLC. Finally, as set forth in Section 11.4 of the CAT NMS Plan, Industry Members would be required to pay their CAT fees within thirty days after receipt of an invoice or other notice indicating payment is due (unless a longer payment period is otherwise indicated). If an Industry Member fails to pay any such fee when due, such Industry Member shall pay interest on the outstanding balance from such due date until such fee is paid at a per annum rate equal to the lesser of (i) the Prime Rate plus 300 basis points, or (ii) the maximum rate permitted by applicable law.
The Operating Committee has prepared an example of how the Proposed Funding Model would operate for illustrative purposes only. Specifically, the Operating Committee has prepared an example of CAT fees calculated under the Proposed Funding Model based on budgeted Total CAT Costs for 2021 as well as message traffic and market share data for the fourth quarter of 2020. Set forth in
The Operating Committee believes that the Proposed Funding Model offers a variety of benefits and satisfies the funding principles and other requirements of the CAT NMS Plan, as proposed to be revised herein, as well as the applicable requirements of the Exchange Act.
The Participants believe that the Proposed Funding Model satisfies the funding principles set forth in Section 11.2(a) of the CAT NMS Plan, as proposed to be modified herein. Section 11.2(a) requires the Operating Committee, in establishing the funding of the Company, to seek “to create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and the other costs of the Company.”
First, by adopting a CAT-specific fee tied to Total CAT Costs, the Operating Committee will be fully transparent regarding the costs of the CAT and how those costs will be allocated among CAT Reporters. In contrast, charging a general regulatory fee, which might otherwise be used to cover CAT costs as well as other regulatory costs, would be less transparent than the selected approach of charging a fee designated to cover CAT-related costs only.
Second, the Proposed Funding Model would provide a predictable revenue stream for the Company. The Proposed Funding Model provides for a predictable revenue stream as the Proposed Funding Model is designed to divide the Total CAT Costs among the CAT Reporters. In addition, to address the possibility of some variability in the collected CAT fees or an unexpected increase in costs, the Total CAT Costs covered by the Proposed Funding Model include an operational reserve. The operational reserve could be used in the event that the total fees are not collected from the CAT Reporters, or costs increase due to outside events.
Third, the Proposed Funding Model provides for a revenue stream for the Company that is aligned with the anticipated costs to build, operate and administer the CAT and the other costs of the Company. The total fees to be collected from Participants and Industry Members are designed to cover the Total CAT Costs. Any surpluses collected will be treated as an operational reserve to offset future fees and will not be distributed to the Participants as profits.
The Operating Committee also believes that the Proposed Funding Model satisfies the funding principle set forth in Section 11.2(b) of the CAT NMS Plan, which requires the Operating Committee to seek “to establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act, taking into account the timeline for implementation of the CAT and distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon Company resources and operations.” As
The Proposed Funding Model also recognizes the “distinctions in the securities trading operations of Participants and Industry Members” in various ways. In light of their different roles, Participants will pay a fee based on market share and Industry Members will pay a fee based on message traffic, as approved by the Commission in the CAT NMS Plan. The Proposed Funding Model also recognizes the different trading characteristics of the equities and options markets by allocating the Adjusted Participant Allocation to Equities Participants and Options Participants separately. Furthermore, the Operating Committee proposes to discount Options Market Maker message traffic and Equity Market Maker message traffic in recognition of their distinct roles as liquidity providers in the securities markets and to avoid potentially and inadvertently affecting market quality. The Proposed Funding Model also recognizes the different trading characteristics of OTC Equity Securities by not including them in the market share calculation for Participants. The Proposed Funding Model also is designed to take into account Participants and Industry Members' relative impact upon Company resources and operations through the use of message traffic and market share in calculating CAT fees.
The Operating Committee also believes that the Proposed Funding Model satisfies the funding principle set forth in Section 11.2(c) of the CAT NMS Plan, as proposed to be modified herein. Section 11.2(c), as proposed to be modified herein, requires the Operating Committee to seek “to establish a fee structure in which the fees charged to: (i) Participants are based upon the level of market share; and (ii) Industry Members are based upon message traffic.” The Proposed Funding Model requires Participants to pay a fee based on market share, and Industry Members to pay a fee based on message traffic.
The Operating Committee also believes that the Proposed Funding Model satisfies the funding principle set forth in Section 11.2(d) of the CAT NMS Plan, which requires the Operating Committee to seek “to provide for ease of billing and other administrative functions.” The Operating Committee believes that calculating CAT fees under the Proposed Funding Model will be manageable as the message traffic and market share data will be readily available. In addition, the elimination of tiers simplifies the billing process as it removes the subjective determination of the tier levels. In addition, the Operating Committee proposes a Minimum Industry Member CAT Fee to ease the administrative burden associated with very small payments.
The Operating Committee also believes that the Proposed Funding Model satisfies the funding principle set forth in Section 11.2(e) of the CAT NMS Plan, which requires the Operating Committee to seek “to avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality.” As discussed above, the Operating Committee has proposed various measures to address potential disincentives, including the market maker message traffic discounts, the Maximum Industry Member CAT Fee, the Maximum Equities Participant Fee and the treatment of OTC Equity Securities for the market share calculation for Participants. The Proposed Funding Model also is structured to avoid a reduction in market quality because it discounts Options Market Maker message traffic and Equity Market Maker message traffic when calculating message traffic for Options Market Makers and Equity Market Makers, respectively. The proposed discounts recognize the value of the market making activity to the market as a whole.
The Operating Committee also believes that the Proposed Funding Model satisfies the funding principle set forth in Section 11.2(f) of the CAT NMS Plan, which requires the Operating Committee to seek “to build financial stability to support the Company as a going concern.” The Operating Committee believes that the Proposed Funding Model is structured to collect sufficient funds to pay the Total CAT Costs. In addition, the Proposed Funding Model would collect an operational reserve for the CAT. This operational reserve is intended to address potential shortfalls in collected CAT fees versus actual CAT costs.
The Operating Committee also believes that the Proposed Funding Model would satisfy the requirements in Section 11.1(c) of the CAT NMS Plan. Section 11.1(c) of the CAT NMS Plan states that “[t]o fund the development and implementation of the CAT, the Company shall time the imposition and collection of all fees on Participants and Industry Members in a manner reasonably related to the timing when the Company expects to incur such development and implementation costs.” The Company has been and continues to incur development and implementation costs for the CAT, and the Operating Committee intends for the fees to help cover these costs. In addition, the CAT fees going forward are proposed to be imposed close in time to when costs are incurred.
Section 11.1(c) of the CAT NMS Plan also requires that “[a]ny surplus of the Company's resources over its expenses shall be treated as an operational reserve to offset future fees.” The Company will operate on a “break-even” basis, with fees imposed to cover costs and an appropriate reserve. Any surpluses will be treated as an operational reserve to offset future fees and will not be distributed to the Participants as profits.
The Operating Committee believes that the proposed CAT fees provide for the “equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities necessary or appropriate in furtherance of the purposes of this chapter,”
The Operating Committee believes that the Proposed Funding Model is “not designed to permit unfair discrimination between customers, issuers, brokers, or dealers,”
In addition, where the method of fee calculation may potentially affect certain groups of CAT Reporters adversely, the Operating Committee has sought to limit such adverse effects. For example, the Operating Committee has proposed market maker discounts to address the high levels of message traffic generally exhibited by market makers. As discussed above, the SEC has recognized repeatedly that such favorable treatment for market makers in other contexts was not unfairly discriminatory or a burden on competition in light of its positive effects on market quality, nor was it considered to involve an inequitable allocation of fees among members.
The Operating Committee also has proposed the Maximum Equities Participant Fee to address the potential for higher market share for FINRA due to the trade reporting to FINRA. The Maximum Equities Participant Fee serves as a method to institute a cap on fees to fairly allocate costs to FINRA given that a market share approach may result in FINRA having a significant allocation given the large volume of NMS Stock activity that is subject to trade reporting to FINRA.
Similarly, the Operating Committee also has proposed the Maximum Industry Member CAT Fee to address the potential for significant fees based on outsized message traffic for certain Industry Members. The Maximum Industry Member CAT Fee serves as a method to institute a cap on fees to fairly allocate costs to Industry Members. Such a fee would prevent Industry Members from paying significantly larger CAT fees than Participant complexes.
The Operating Committee also proposes to calculate market share for national securities associations without reference to trades reported in OTC Equity Securities in light of the differences in the markets for NMS Stocks and OTC Equity Securities. Because the proposed CAT fees for Equities Participants are based on market share calculated by share volume, FINRA would likely be subject to higher fees if OTC Equity Securities were included in the calculation of market share.
The Operating Committee believes that the Proposed Funding Model does “not impose any burden on competition not necessary or appropriate in furtherance of the purposes of this chapter,”
The Operating Committee has determined to propose the Proposed Funding Model to fund the CAT for the reasons discussed above. In reaching this conclusion, the Operating Committee considered the advantages and disadvantages of a variety of possible alternative funding and cost allocations models for the CAT in detail. After analyzing the various alternatives, the Operating Committee determined that the Proposed Funding Model provides a variety of advantages in comparison to the alternatives. In addition, although various funding models may be appropriate, the Proposed Funding Model provides for an equitable allocation of reasonable fees among CAT Reporters.
The Operating Committee previously filed a fee proposal in line with the CAT NMS Plan—the Prior Fee Proposal. Under that model, the Operating Committee, among other things, proposed a 75%-25% allocation between Execution Venues (which included Participants and Execution Venue ATSs) and Industry Members
In developing the Prior Fee Proposal, the Operating Committee considered many variations of different aspects of that model. For example, the Operating Committee evaluated different cost allocations between Industry Members (other than Execution Venue ATSs) and Execution Venues, including 80%-20%, 75%-25%, 70%-30% and 65%-35% allocations, and different cost allocations between Equity and Options Execution Venues.
Furthermore, the Operating Committee considered a model in which all CAT Reporters, including both Industry Members and Participants, would pay based solely on revenue. The concept underlying this proposal is that CAT costs would be borne by CAT Reporters based on the ability to pay. Industry Member revenue would be calculated based on revenue reported in FOCUS reports, and Participant revenue would have been calculated based on revenue information in Form 1 amendments and other publicly reported figures. The Operating Committee did not select this model for various reasons. As discussed above, under this approach, Participants as a group would only pay approximately 4% of the total CAT costs. Given their role as self-regulatory organizations and their use of the CAT, the Operating Committee did not believe that such a small allocation of the CAT costs to the Participants was appropriate. Using revenue also raised a variety of practical issues. For example, questions were raised as to what revenue was appropriate to include in the calculation of revenue for Industry Members. The gross revenue set forth on FOCUS reports was proposed, as it was similar to an existing FINRA regulatory fee.
To address the issues regarding the 96%-4% allocation and the calculation of the Participant revenue in the straight revenue model described above, the Operating Committee considered an alternative version of the revenue model in which the CAT costs would be allocated between Industry Members and Participants based on a set percentage (
The Operating Committee considered a funding model in which CAT costs were allocated across all CAT Reporters—both Industry Members and Participants—based on message traffic. Specifically, the Operating Committee considered eliminating the concepts of the Participant Allocation and the Industry Member Allocation entirely, and treating Participants and Industry Members the same under the model. The Operating Committee, however, determined that the bifurcated approach set forth in the CAT NMS Plan continued to be a fair and reasonable approach.
The Operating Committee also considered other possible funding models. For example, the Participants considered allocating the CAT costs equally among each of the Participants, and then permitting each Participant to charge its own members as it deems appropriate. The Operating Committee determined that such an approach raised a variety of issues, including the likely inconsistency of the ensuing charges, potential for lack of transparency, and the impracticality of multiple SROs submitting invoices for CAT charges. The Operating Committee also discussed the advantages and disadvantages of various alternative models during development of the CAT NMS Plan, such as a cost allocation based on a strict pro-rata distribution, regardless of the type or size of the CAT Reporters, or a cost allocation based on trades.
Not applicable.
The Participants are filing this proposed amendment pursuant to Rule 608(b)(1) of Regulation NMS under the Exchange Act.
The Participants expect to implement the proposed Participant CAT fees upon approval by the SEC.
The Operating Committee does not believe that the proposed amendment will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The Operating Committee notes that the proposed amendment implements provisions of the CAT NMS Plan approved by the Commission, subject to proposed revisions to the CAT NMS Plan described above, and is designed to assist the Participants in meeting their regulatory obligations pursuant to the Plan. Because all Participants are subject to the Proposed Funding Model set forth in the proposed amendment, this is not a competitive filing that raises competition issues between and among the Participants. Furthermore, for the reasons discussed above, including in Section A.8 above, the Operating Committee does not believe that the Proposed Funding Model will result in any burden on competition that
Not applicable.
Section 12.3 of the CAT NMS Plan states that, subject to certain exceptions, the CAT NMS Plan may be amended from time to time only by a written amendment, authorized by the affirmative vote of not less than two-thirds of all of the Participants, that has been approved by the SEC pursuant to Rule 608 of Regulation NMS under the Exchange Act or has otherwise become effective under Rule 608 of Regulation NMS under the Exchange Act. In addition, Section 4.3(a)(vi) of the Plan requires the Operating Committee, by Majority Vote, to authorize action to determine the appropriate funding-related policies, procedures and practices-consistent with Article XI. The Operating Committee has satisfied both of these requirements. In addition, the Proposed Funding Model was discussed and voted on during a general session of the Operating Committee.
Not applicable.
Not applicable.
Section A of this letter describes in detail how the Participants developed the Proposed Funding Model for the CAT.
Not applicable.
Section 11.5 of the CAT NMS Plan addresses the resolution of disputes regarding CAT fees charged to Participants and Industry Members. Specifically, Section 11.5 of the CAT NMS Plan states that disputes with respect to fees the Company charges Participants pursuant to Article XI of the CAT NMS Plan shall be determined by the Operating Committee or a Subcommittee designated by the Operating Committee. Decisions by the Operating Committee or such designated Subcommittee on such matters shall be binding on Participants, without prejudice to the rights of any Participant to seek redress from the SEC pursuant to Rule 608 of Regulation NMS under the Exchange Act or in any other appropriate forum. In addition, the Participants adopted rules to establish the procedures for resolving potential disputes related to CAT fees charged to Industry Members.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the amendment is consistent with the Exchange Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Additions
[“Execution Venue” means a Participant or an alternative trading system (“ATS”) (as defined in Rule 300 of Regulation ATS) that operates pursuant to Rule 301 of Regulation ATS (excluding any such ATS that does not execute orders).]
Section 11.1. Funding Authority.
(a) On an annual basis the Operating Committee shall approve an operating budget for the Company. The budget shall include the projected costs of the Company, including the costs of developing and operating the CAT for the upcoming year, and the sources of all revenues to cover such costs, as well as the funding of any reserve that the Operating Committee reasonably deems appropriate for prudent operation of the Company.
(b) Subject to Section 11.2, the Operating Committee shall have discretion to establish funding for the Company, including: (i) Establishing fees that the Participants shall pay; and (ii) establishing fees for Industry Members that shall be implemented by Participants. The Participants shall file with the SEC under Section 19(b) of the Exchange Act any such fees on Industry Members that the Operating Committee approves, and such fees shall be labeled as “Consolidated Audit Trail Funding Fees.”
(c) To fund the development and implementation of the CAT, the Company shall time the imposition and collection of all fees on Participants and Industry Members in a manner reasonably related to the timing when the Company expects to incur such development and implementation costs.
(d) Consistent with this Article XI, the Operating Committee shall adopt policies, procedures, and practices regarding the budget and budgeting process, [assignment of tiers,] resolution of disputes, billing and collection of fees, and other related matters. [For the avoidance of doubt, as part of its regular review of fees for the CAT, the Operating Committee shall have the right to change the tier assigned to any particular Person in accordance with fee schedules previously filed with the Commission that are reasonable, equitable and not unfairly discriminatory and subject to public notice and comment, pursuant to this Article XI. Any such changes will be effective upon reasonable notice to such Person.]
Section 11.2. Funding Principles. In establishing the funding of the Company, the Operating Committee shall seek:
(a) To create transparent, predictable revenue streams for the Company that are aligned with the anticipated costs to build, operate and administer the CAT and the other costs of the Company;
(b) to establish an allocation of the Company's related costs among Participants and Industry Members that is consistent with the Exchange Act, taking into account the timeline for implementation of the CAT and distinctions in the securities trading operations of Participants and Industry Members and their relative impact upon Company resources and operations;
(c) to establish a [tiered] fee structure in which the fees charged to: (i)
(d) to provide for ease of billing and other administrative functions;
(e) to avoid any disincentives such as placing an inappropriate burden on competition and a reduction in market quality; and
(f) to build financial stability to support the Company as a going concern.
Section 11.3. Recovery.
(a) The Operating Committee will establish
(i) Each
(ii) Each
(b) The Operating Committee will establish [fixed] fees to be payable by Industry Members, based on the message traffic generated by such Industry Member
(c) The Operating Committee may establish any other fees ancillary to the operation of the CAT that it reasonably determines appropriate, including fees: (i) For the late or inaccurate reporting of information to the CAT; (ii) for correcting submitted information; and (iii) based on access and use of the CAT for regulatory and oversight purposes (and not including any reporting obligations).
(d) The Company shall make publicly available a schedule of effective fees and charges adopted pursuant to this Agreement as in effect from time to time. The Operating Committee shall review such fee schedule on at least an annual basis and shall make any changes to such fee schedule that it deems appropriate. The Operating Committee is authorized to review such fee schedule on a more regular basis, but
The following sets forth an illustrative example of CAT fees calculated under the Proposed Funding Model based on budgeted Total CAT Costs for 2021 and message traffic and market share data for the fourth quarter of 2020. Note
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We, the NMFS, issue this final rule to designate critical habitat for the endangered Western North Pacific distinct population segment (DPS), the endangered Central America DPS, and the threatened Mexico DPS of humpback whales (
This rule becomes effective on May 21, 2021.
This final rule, critical habitat maps, as well as documents supporting this final rule are available on our website (
Lisa Manning, NMFS, Office of Protected Resources, 301-427-8466.
Under the ESA, we are responsible for determining whether certain species are threatened or endangered, and, to the maximum extent prudent and determinable, designating critical habitat for endangered and threatened species at the time of listing (16 U.S.C. 1533(a)(3)(A)(i)). On September 8, 2016, we published a final rule that revised the listing of humpback whales under the ESA by removing the original, taxonomic-level species listing, and in its place listing four DPSs as endangered and one DPS as threatened (81 FR 62260). We also determined that nine additional DPSs did not warrant listing. Prior to this revision, the humpback whale had been listed as an endangered species in 1970 under the precursor to the ESA (the Endangered Species Conservation Act of 1969), and then transferred to the list of endangered species under the ESA. Although the ESA was later amended to require the designation of critical habitat for listed species, when humpback whales were originally listed, there was no statutory requirement to designate critical habitat for this species. Section 4(a)(3)(A)(i) of the ESA now requires that, to the maximum extent prudent and determinable, critical habitat be designated at the time of listing (16 U.S.C. 1533(a)(3)(A)(i)). Pursuant to implementing regulations at 50 CFR 424.12(g), critical habitat is not designated within foreign countries or in areas outside the jurisdiction of the United States. Thus, the listing of DPSs of humpback whales under the ESA in 2016 triggered the requirement to designate critical habitat, to the maximum extent prudent and determinable, for those DPSs occurring in areas under U.S. jurisdiction—specifically, the Central America (CAM), Mexico (MX), and Western North Pacific (WNP) DPSs. The statute and our regulations presume that designation is prudent except in relatively rare circumstances where a finding that it is not prudent may be appropriate (see 50 CFR 424.12(a)(1)).
In the final rule to list five DPSs of humpback whales, we concluded that critical habitat was not yet determinable, which had the effect of extending by one year the statutory deadline for designating critical habitat (16 U.S.C. 1533(b)(6)(C)(ii)). On March 15, 2018, the Center for Biological Diversity, Turtle Island Restoration Network, and the Wishtoyo Foundation filed a complaint seeking court-ordered deadlines for the issuance of proposed and final rules to designate critical habitat for the CAM, MX, and WNP DPSs of humpback whales.
In 2018, a critical habitat review team (CHRT), consisting of biologists from NMFS and NOS, was convened to assess and evaluate information in support of a critical habitat designation for the CAM, MX, and WNP DPSs of humpback whales. Based on the Draft Biological Report (NMFS 2019a), the Draft Economic Analysis (IEc 2019), and the initial Draft Section 4(b)(2) Report (NMFS 2019b), we published a proposed rule (84 FR 54354, October 9, 2019) to designate critical habitat for all three DPSs. All of the areas proposed for designation serve as feeding habitat for the relevant listed DPSs and contain the essential biological feature of humpback whale prey. Approximately 78,690 nmi
We requested public comment on the proposed designations and supporting reports (
This final rule describes the critical habitats for the CAM, MX, and WNP DPSs of humpback whales and the basis for the designations, including a summary of, and responses to, the significant public comments received. The following supporting documents provide detailed discussions of information and analyses that contributed to the conclusions presented in this final rule: Final Biological Report (NMFS 2020a), Final Economic Analysis (FEA; IEc 2020), and Final Section 4(b)(2) Report (NMFS 2020b). The Final Biological Report is a compilation of the best available scientific information as gathered and reviewed by the CHRT, and the FEA is the analysis of probable economic impacts associated with the critical habitat areas as conducted by economists contracted by NMFS (
Section 3(5)(A) of the ESA defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, 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 by the Secretary that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)(A)). Certain areas owned or controlled by the Department of Defense are ineligible for designation (16 U.S.C. 1533(a)(3)(B)(i). Section 3(5)(C) of the ESA provides that, except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. Under our implementing regulations, we may consider designating unoccupied areas that are essential for the conservation of the species only where a designation limited to occupied areas would be inadequate to ensure the conservation of the species (50 CFR 424.12(b)(2)).
“Conservation” is defined in section 3(3) of the ESA as the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the ESA are no longer necessary (16 U.S.C. 1532(3)). Therefore, a critical habitat designation is not limited to the areas necessary for the survival of the species, but rather includes areas necessary for supporting the species' recovery. (
The United States Supreme Court has recently held that “critical habitat” must logically be a subset of the species' “habitat” that is “critical.”
In determining whether the essential physical or biological features “may require” special management considerations or protection, it is necessary only to find that there is a possibility that the features may require special management considerations or protection in the future; it is not necessary to find that such management is presently or immediately required.
Section 4(b)(2) of the ESA requires the Secretary to designate critical habitat for threatened and endangered species on the basis of the best scientific data available and after taking into consideration various impacts of the designation (16 U.S.C. 1533(b)(2)). The first sentence of section 4(b)(2) requires the Secretary to take into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat (16 U.S.C. 1533(b)(2)). Regulations at 50 CFR 424.19(b) specify that, in carrying out this mandatory consideration, the Secretary will consider the “probable” impacts of the designation at a scale that the Secretary determines to be appropriate, and that such impacts may be qualitatively or quantitatively described. The Secretary will compare impacts with and without the designation (50 CFR 424.19(b)). This requires that we assess the incremental impacts attributable to the critical habitat designation relative to a baseline that reflects regulatory impacts that already exist in the absence of the critical habitat due to the protections afforded to the listed humpback whales under the ESA and from other statutes.
The second sentence of section 4(b)(2) describes a further process by which the Secretary may go beyond the mandatory consideration of impacts and weigh the benefits of excluding any particular area
Critical habitat designations must be based on the best scientific data available, rather than the best scientific data
Once critical habitat is designated, section 7(a)(2) of the ESA requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to destroy or adversely modify that habitat (16 U.S.C. 1536(a)(2)). This requirement is additional to the section 7(a)(2) requirement that Federal agencies ensure their actions are not likely to jeopardize the continued existence of ESA-listed species (sometimes referred to as the “jeopardy” standard). Specifying the geographic location of critical habitat also facilitates implementation of section 7(a)(1) of the ESA by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the purposes of the ESA (16 U.S.C. 1536(a)(1)). Critical habitat requirements do not apply to citizens engaged in actions on private land that do not involve a Federal agency.
We evaluated the comments and information received from the public during the public comment period and at public hearings. Based on our consideration of these comments and information and our reconsideration of issues discussed in the proposed rule, we have made several changes from the proposed designations. Below we briefly summarize these changes, which are discussed in further detail in the relevant responses to comment and other sections of this final rule.
(1)
CAM DPS: Prey species, primarily euphausiids (
WNP DPS: Prey species, primarily euphausiids (
MX DPS: Prey species, primarily euphausiids (
(2)
(3)
As previously described, the CHRT's reassessment of the relative conservation value of the specific areas placed greater emphasis on the relative distribution of the listed whales (versus humpback whales generally) within each of the specific areas proposed for designation. As a result of this reassessment, and for the same reasons as described for the WNP DPS, the CHRT concluded that Unit 1 was “data deficient;” currently available data are not sufficient to reliably determine the relative proportions of humpback whales from different populations in Unit 1. In other words, the CHRT could not determine the extent to which MX DPS whales rely on this particular area, their predicted use of this area, or the importance of this area to the conservation of the MX DPS. Based on our consideration of the benefits of designating this area versus the estimated economic impacts associated with designating this area, we conclude that the benefits of designating this area for the MX DPS are outweighed by the benefits of excluding this particular area. Therefore, Unit 1 is not included in the final critical habitat designation for this DPS.
Based on the CHRT's reassessment of the relative conservation values of several specific areas occupied by the MX DPS, the qualitative conservation ratings (
(4)
We requested public comments on the proposed rule to designate critical habitat for the Western North Pacific, Central America, and Mexico DPSs of humpback whales, and on the supporting documents (
We received over 180 public comment submissions through
Summaries of the substantive public comments received and our responses are provided below by topic. Similar comments are combined where appropriate. We did not consider, and do not include below, comments that were not germane to the proposed critical habitat rule. Such unrelated comments addressed issues other than critical habitat designation, such as the 2016 revision of the listing of humpback whales under the ESA, delisting of humpback whale DPSs, funding for humpback whale monitoring, development of recovery plans for the listed humpback whale DPSs, and expansion of critical habitat for North Pacific right whales.
The costs of the designation are largely administrative because we do not presently anticipate recommending incremental changes to agency actions as a result of the designation of critical habitat for the majority of forecasted activities. For most of the activities for which we can project the likelihood of a consultation, consultation would have already been required in order to ensure the action would not jeopardize the continued existence of the listed whales, due to the presence of the whales, and the newly arising obligation to also consider potential destruction or adverse modification of critical habitat is not expected generally to change the outcomes of such consultations. For certain activities (
The revised economic analysis highlights key areas of uncertainty associated with this conclusion and presents that information alongside the quantified impacts. In particular, public comments from the State of Alaska and other entities identified the potential for project delays related to in-water construction and dam relicensing to result from the critical habitat designation. Public comments did not identify any particular instances of critical habitat designations across the region specifically resulting in a project delay, and we were not able to find such examples through additional outreach to state agencies (
The administrative costs quantified in the economic analysis are not limited to the costs of consultation that would be borne by NMFS and other governmental agencies. As shown in Exhibit 1-3 of the FEA, the analysis estimates administrative costs for each forecasted consultation to NMFS, a hypothetical Federal action agency, and a hypothetical third party. A third party having an interest in a section 7 consultation could be a private company (
As discussed in more detail later, in response to Comment 43, and in the Final Section 4(b)(2) Report, Southeast Alaska (Unit 10) is excluded from the final critical habitat designation for the MX DPS. This particular area is forecasted to have disproportionately high estimated administrative costs relative to other areas and was rated as having a low conservation value for the MX DPS whales. Thus, we concluded that the benefits of excluding this area outweigh the benefits of including this particular area in the designation of critical habitat for the MX DPS.
In developing the final economic analysis and in order to respond to the comments received, we sought relevant information from the State of Alaska to understand how the state-managed herring fishery, which does target humpback whale prey, may be affected by the designations. Absent a Federal nexus requiring consultation, any conservation efforts undertaken to change practices in the state-managed fishery in response to the rule would be the state's decision, and communications with the state did not indicate that the state expects to take any such actions absent a regulatory requirement from NMFS to do so. Because we are not proposing any such regulations, the FEA's quantified costs are limited to those administrative costs incurred as a result of section 7 consultation on Federal actions including Federal fishery management plans. We conclude that it would be erroneous to quantify costs associated with hypothetical management actions that are not anticipated outcomes of this critical habitat rule.
Geographic overlap with the critical habitat designation alone is not indicative of the potential for the critical habitat designation to affect a fishery. Absent a Federal nexus, incremental impacts of this critical habitat rule may also occur if a state elects to change the management of its own fisheries as a result of the critical habitat designation. As discussed in the FEA, the State of Alaska, which manages the fishery for one of the whales' primary prey species in Alaska (herring), has not indicated an intent to limit the geographic extent or level of harvest in that fishery as a result of critical habitat designation absent a regulatory requirement from NMFS to do so.
The Dungeness crab fishery occurs within important humpback whale feeding areas for the MX DPS and within the only documented feeding habitat for the CAM DPS of humpback whales. Because there are no anticipated economic impacts on the Dungeness crab fishery stemming from the critical habitat designations, there is no basis to exclude this area from the designations.
In communications with ADEC, the agency confirmed that it does not consult with NMFS on individual discharge permits, including for activities occurring within critical habitat, and that only minimal incremental costs are incurred considering potential effects on threatened and endangered species pursuant to state regulations, regardless of the critical habitat designation. As a result, it is unlikely that additional costs would be incurred related to issuance of individual NPDES permits (as the State of Alaska has primacy for issuing these permits, the state refers to them as “APDES permits”). (See also the response to Comment 15 above.)
The whale watching expenditure statistics presented in Exhibit 4-2 of the FEA represent both direct spending on whale watching tickets as well as estimated spending in the local economy by whale watch participants. For example, in Alaska, the $540 million in estimated expenditures represents $480 million in whale watching ticket sales and $60 million in additional spending in the local economy attributable to whale watching participants.
Chapter 5 begins by identifying the universe of activities in which third parties are likely to be party to a section 7 consultation, and for which there is more than one consultation anticipated per year across all critical habitat areas. “In-Water Construction” and “Aquaculture” are identified as the only activities for which it is likely that a small entity may be party to a consultation (
The direct expenses and delay costs currently incurred by third parties for in-water construction permitted under the MMPA are not costs resulting from the critical habitat designation and thus are not appropriate to include in the cost estimate for this rule. That the existing administrative costs resulting from requirements that predate and are unrelated to the critical habitat designation are high does not indicate that costs are underestimated for this rule.
Under the ESA and our regulations, areas meeting the definition of critical habitat are to be designated as critical habitat unless the Secretary elects to exercise his discretion to consider exclusion of particular areas under section 4(b)(2) of the ESA. Where the Secretary enters into such an analysis, he has discretion to exclude particular areas from a designation if the benefits of excluding that particular area outweigh the benefits of its designation. His discretion is not unlimited. He may not exclude an area if failure to include that area in the designation will result in extinction of the species. Further, the Secretary's analysis must reflect consideration of the specific information in the record for each particular area. The statute does not mandate exclusions of areas, and individual determinations must be made on the basis of the best available information to support each particular area that is ultimately excluded.
Secondly, the State's proposed approach does not appear to account for the particular species and its life history needs. Stated generally, critical habitat as defined in section 3 of the ESA includes areas and habitat features that are essential to or for the conservation of the listed species (16 U.S.C. 1532(5)(A)). The term “conservation” is further defined in section 3 of the ESA as using and the use of all methods and procedures necessary to bring any endangered or threatened species to the point at which their protection under the ESA is no longer necessary (16 U.S.C. 1532(3) (defining “conserve,” “conserving,” and “conservation”)). Therefore, critical habitat is expressly defined so as to include not just areas necessary to support the continued survival of the species, but also those that further its recovery and removal from the list of threatened and endangered species.
A critical habitat designation therefore must be developed based on consideration of the type and nature of the habitat needed by the particular species to support its recovery. Humpback whales are large, highly migratory marine species that use vast areas of oceanic habitat to carry out their normal life functions and behaviors. Individual humpback whales feed over thousands of square kilometers (
Third, in asserting that there should be an upper limit on the appropriate size for a critical habitat designation, the State's analysis presumes that there is a theoretical tipping point at which “adverse modification” outcomes in future section 7 consultations would become unlikely. Beyond this point, once a certain amount of high-conservation areas are identified for inclusion in the designation, the State asserts there is categorically no conservation benefit of including additional, relatively lower-value critical habitat areas in the designation. Thus, they conclude, these lower-value areas should be excluded under section 4(b)(2) of the ESA, because the economic impact of designating these areas should be thought of as categorically outweighed by the benefits of designating them (which they assert are non-existent or even negative). We fundamentally disagree with this conceptual approach to determining the appropriate extent of critical habitat designations and how to evaluate areas for exclusion under section 4(b)(2). There are several errors in the State's approach, including reliance on an assumption that critical habitat only provides conservation benefits to the listed species when there is an adverse modification outcome of a consultation under section 7 of the ESA. This is inconsistent with our experience. Where a consultation does not result in a finding that an action would be likely to cause destruction or adverse modification of the habitat such that major changes would be required to the proposed action, the process of consultation can, and often does, lead to conscious structuring by Federal agencies of their actions to minimize impacts to habitat at the outset. Thus, the benefits of a critical habitat designation cannot be measured simply by the number of “destruction or adverse modification” determinations that may or may not be the outcome of future section 7 consultations. Although the State acknowledges some of these benefits in their comments, such as project design changes and adoption of mitigation and minimization measures during informal consultations, these types of positive conservation outcomes are not factored into their analysis.
Further, we disagree with the State's assumption that larger critical habitat designations necessarily result in more complex section 7 analyses or result in more costs without a conservation benefit. The complexity and cost of a consultation are a function of the scope and nature of the particular Federal action, as well as the
In their proposed approach, the State stated that the most important habitat areas should be prioritized for designation. Although, as indicated above, we did not adopt the State's proposed method for assessing the conservation value of areas or making decisions regarding exclusions under section 4(b)(2), we do agree that areas found to have greater importance to the species' conservation on the basis of the best available scientific data should receive greater weight, relative to less biologically important areas, when comparing the benefits and impacts of designating particular areas in a section 4(b)(2) analysis. As we have done in the course of many previous designations, this was achieved in our analysis by assigning relative conservation values to specific areas for each DPS and in how we weighed these values against the forecasted impacts of designation. Through our approach, areas considered to have greater importance to the conservation of each DPS were in effect prioritized for designation above areas that are considered to be less important. This is appropriate under the statute and our regulations because, in the 4(b)(2) process, we must determine which factors are relevant and how much weight to assign each factor (see 50 CFR 424.19(c)). In light of the purpose of critical habitat under the ESA (to support the conservation, or recovery, of the species) and the statutory mandate to designate critical habitat to the maximum extent prudent and determinable, it is reasonable to give great weight to the conservation value of the habitat, and greatest weight to areas with the highest conservation value.
Lastly, we do not agree that large critical habitat designations undermine conservation because they provide a single value,
Overall, we find that the analysis provided by the State does not support restricting the critical habitat designation to the areas suggested by the
In the proposed rule, we described the effects of critical habitat designations, and consistent with the requirements of section 4(b)(8) of the ESA, we provided a brief discussion of those activities (whether public or private) that may adversely modify the proposed critical habitat or that may be affected by such designation. Such information is also provided in this final rule. The regulatory definition of “destruction or adverse modification” has been added to that discussion to provide additional information regarding the effect of critical habitat designations.
Further, the State's implicit assumption that benefits of designation can accurately be assessed only to the extent they are quantified or monetized is also unfounded. We agree it would be useful and informative if available data allowed us to monetize the benefits of critical habitat designation to enable a direct comparison with the estimated economic benefits of excluding particular areas from the designation. However, as discussed in the Section 4(b)(2) Report and proposed rule, data to monetize these benefits are not available and is not required. Because the ESA requires designation of critical habitat to further the conservation of listed species, an area meeting the definition of critical habitat draws inherent but unquantifiable value from fulfilling that statutory mandate. In considering potential exclusions under section 4(b)(2) and its implementing regulations, moreover, the Secretary has discretion to determine the factors to be considered and what weight to assign them in comparing the benefits of exclusion with the benefits of inclusion (50 CFR 424.19(c)). In carrying out our analyses, it is not possible using the best available scientific tools to quantify the effect that a critical habitat designation would have on recovery of humpback whales over and above other separate, preexisting protections, including those that extend from listing under the ESA.
In our analysis, we used the CHRT's relative conservation value ratings to represent the relative conservation benefits of designating specific areas identified as critical habitat for each DPS. The CHRT's ratings of the relative conservation value of the critical habitat were based on relevant biological considerations (
In terms of specific assertions regarding misuse of data, ADF&G stated that in using data from Wade (2017) regarding predicted movement
ADF&G also stated that we did not indicate that the CHRT recognized that the humpback whale density data used in our assessment conflates the abundance of various DPSs, and that this density information could be misleading. They also expressed concern regarding the use of results of the “SPLASH” study and stated that our application of these sightings data conflated the use of habitat units by other DPSs with that of the DPS being assessed. They stated that the SPLASH mark-resight data could be useful, but that we should include the unmatched sightings in the assessment in order to understand population size and account for differing survey effort.
A significant and unique challenge in developing these particular critical habitat designations is the fact that each of the DPSs of interest co-occur with multiple, other DPSs of the same taxonomic species in the areas meeting the statutory definition of critical habitat. Relevant data available to the CHRT that allow for an assessment of the relative use of particular areas by each DPS include photo-identification data, genetic data, and to a more limited extent, telemetry data. The ocean basin-wide study referred to as the “Structure of Populations, Levels of Abundance, and Status of Humpbacks” or the “SPLASH study” was a significant effort undertaken in coordination with 10 countries that involved the collection of both photo-identification and genetic data during three breeding seasons (2004, 2005, and 2006) and over two feeding seasons (2004, 2005) in known breeding and feeding areas. The SPLASH study informs and supports much of the current scientific understanding of the structure of humpback whale populations in the North Pacific, and the results of this study as well as subsequent analyses of data obtained in this study (
First, in response to the concern regarding the application of results from Wade (2017) regarding predicted movement probabilities of humpback whales into the feeding areas, we considered the State's suggestion of using densities of whales rather than the predicted movement probabilities from the Wade (2017) analysis; however, we did not find this to be a useful or appropriate modification. Analytical results presented in Wade (2017), which relied on the photo-identification data from the SPLASH study (Calambokidis
With respect to how the critical habitat areas were delineated, we note that these areas should be identified at a scale determined by the Secretary to be appropriate (50 CFR 424.12(b)(1)). Data and information applied by the CHRT to systematically delineate boundaries for the specific critical habitat areas is discussed in detail in the Final Biological Report (NMFS 2020a). However, in response to comments, we reviewed the regional boundaries applied in Wade (2017) as well as survey effort and locations from the SPLASH study, and made several changes to improve or correct the data tables used to inform the CHRT's assessment. Specifically, we agree with ADF&G that we applied the incorrect movement probability for the Shumagin Islands Area (Unit 3), which is more appropriately assigned to the Gulf of Alaska Region as delineated in Wade (2017), and we corrected this for the relevant data tables (
In response to the concerns regarding how photo-identification match percentages from the SPLASH study were applied by the CHRT, we modified the data tables to avoid the perception that the CHRT had conflated the use of habitat units by other DPSs with that of the DPS being assessed. In our initial analysis, and as a means of examining relative distributions of whales of a given DPS across habitat units, we calculated the percent of unique sightings of whales of the given DPS out of all matched sightings (for all DPSs) that had occurred in that particular area. This column of data was changed to instead show the percent unique sightings of whales of the given DPS in the particular area out of the total number of matched sightings of whales of that same DPS. Thus, match data for whales from other DPSs were removed from the calculation, and information to help assess the relative distribution of whales of the given DPSs across the habitat units was retained. To provide further context for these percentages, we also included general information with respect to the SPLASH survey effort, including the number of vessel days, whether small boat surveys had been conducted in that area, and the total number of unique humpback whales sighted in that area. Although this information was not detailed or precise enough to be particularly informative, the CHRT felt it was relevant and helpful to include as it stimulated and facilitated discussions regarding survey effort across the areas.
In response to the concerns that the CHRT had been biased or inappropriately influenced by humpback whale density data that was not specific to a particular ESA-listed DPS, we also removed the general humpback whale density data from the data tables used by the CHRT. The CHRT agreed this was an appropriate simplification for several reasons. First, with the exception of the CAM DPS, for which we have a consistent set of density estimates for all critical habitat units occupied by that DPS, the estimated and observed density data that are currently available come from multiple studies with differing methodological approaches and for different time periods, and consequently, these data had not allowed the CHRT to make strong inferences with respect to the habitat units during their initial assessment. In addition, and as noted by the commenters, these general density data are affected to differing degrees across the habitat units by the presence of the non-listed Hawaiian whales. The CHRT had acknowledged the multiple limitations with applying these data in their original review and discussions, and was aware these issues were more acute for Alaska where scientific surveys have been more limited (both geographically and temporally) but included them because they comprise part of the best available data. Overall, the CHRT decided these data could be removed from consideration without limiting or undermining their ability to understand the relative conservation value of each habitat unit by the listed DPSs.
Humpback whale feeding areas of the North Pacific have typically been divided into five or six general regions based on genetic and sightings data that indicate population structuring across these areas. NMFS, as well as the International Whaling Commission (IWC) are currently investigating stock structure and associated feeding groups of humpback whales, which may lead to some adjustments to the currently recognized stocks and feeding group boundaries (
As discussed previously in response to Comment 33, BIAs are not synonymous with critical habitat under the ESA; not everything identified as critical habitat will meet the BIA criteria and vice versa (Ferguson
We acknowledge that the critical habitat designations for the WNP DPS, and particularly for the CAM and MX DPSs are each larger than the two discrete areas designated as critical habitat for the North Pacific right whale. However, the humpback whale designations and that for the North Pacific right whale are not directly comparable, and it is misleading to simply compare their relative sizes without putting them in context. The different designations are a reflection of the best scientific data available regarding each species and their habitats rather than an indication that the humpback whale designations do not adhere to the statutory requirements for designation of critical habitat. At the time critical habitat for North Pacific right whales was designated in 2008 (73 FR 19000, April 8, 2008), abundance of those whales in the eastern North Pacific was unknown, but was considered by most biologists to be fewer than 100 whales, and sightings were rare. The North Pacific right whale species remains extremely rare, with an estimated effective population size for the eastern North Pacific of 11.6 whales (95 percent CI: 2.9-75.0, LeDuc
To determine which areas meet the statutory definition of critical habitat and delineate biologically appropriate boundaries for the specific areas of humpback whale critical habitat, we relied on multiple types of data, including humpback whale sightings data, habitat modelling, location of BIAs, and prey species distributions (NMFS 2020a). Each type of data may have relative strengths and limitations as compared to other types of data for particular uses, which we identify and discuss in these various responses to comments and the Biological Report (NMFS 2020a). Although not perfect or
Habitat model results of Becker
Humpback whale prey species are distributed throughout the feeding grounds and the specific areas identified as critical habitat. Due to the considerable importance of euphausiids and other forage fish species to commercial fisheries and to other marine predators, as well as their role as ecosystem indicator species, extensive scientific surveys have been conducted within all marine ecosystems of the U.S. EEZ to monitor abundances, distributions, trends, as well as factors that affect these species (
Available sightings and habitat modelling data indicate that humpback whales occur more widely throughout the U.S. EEZ and in areas outside of the recognized BIAs (
The isobath data used to delineate seaward boundary lines on the maps correspond to the aerial extent of humpback feeding habitat, which is considered to be primarily shelf and shelf-edge habitat. Per our implementing regulations at 50 CFR 424.18(a)(1), we are required to provide maps of critical habitats and provide the coordinates and/or plot points on which the map is based available to the public on our website, and per additional requirements under 50 CFR 424.12(c), ephemeral reference points are not to be used to clarify area boundaries. For marine habitats, bathymetry data are often readily available and reliable source data from which we can create maps and share the underlying spatial data in an electronic format. For the humpback whale critical habitat maps, the bathymetry data were thus not selected to correspond to humpback whale dive depths but to capture and map the seaward extent of the feeding areas.
With respect to critical habitat Unit 7 (Kenai Peninsula Area), Unit 8 (Prince William Sound), and Unit 9 (Northeastern Gulf of Alaska), we assessed the benefits of including those areas in the designation and the benefits of exclusion for each of these particular areas with respect to each relevant DPS of humpback whales. As discussed in our Final Biological Report (NMFS 2020a) and Final Economic Analysis (FEA), these assessments were revised and updated in response to public comments and new information received following publication of the proposed rule. In both the initial and final conservation rating assessments conducted by the CHRT, Units 7, 8 and 9 were rated as having low conservation value for the WNP DPS. In both the initial and final conservation rating assessments, Units 7 and 9 were rated as having low conservation value for the MX DPS; and Unit 8, which was previously rated as having high conservation value, was changed to medium conservation value (see NMFS 2020a). The estimated annualized economic impact of designating each of these three areas increased (by $1,600) based on new information regarding the rate of consultations on aquaculture and water quality management related activities, an update to 2020 dollars (from 2018 dollars), and an update of the timeframe of the analysis to 2020-2029 (previously 2019-2028). Overall, the updated assessments provided no basis to revise our previous conclusions regarding the relative weighing of the economic costs of designating these areas against the benefits of designating these areas. The benefits of designating the low value areas were still found to be outweighed by the associated economic impacts; and, for the MX DPS, the benefit of designating the medium value area of Prince William Sound was still not outweighed by the associated economic impact of designating this particular area. Thus, Units 7, 8, and 9 are excluded from the final critical habitat designation for the WNP DPS, and Units 7 and 9 are excluded from the final critical habitat designation for the MX DPS.
In conducting the weighing of benefits under section 4(b)(2), we assessed the benefits of designation and exclusion for each particular area (see NMFS 2020b). Given the relatively low forecasted costs and potential economic impacts associated with designating each of the 19 units under consideration, we determined that the benefits of designating medium, high, and very
Finally, we acknowledge that humpback whales face ongoing threats, particularly from ship strikes and entanglement, even within the areas excluded from the critical habitat designations. However, these threats, which directly impact the whales, will continue to be addressed under both the ESA and MMPA wherever applicable, regardless of whether the particular area has been designated as critical habitat under the ESA. In particular, when section 7 consultations are undertaken for Federal agency actions that may have impacts in the areas where whales or their prey are present, impacts that affect the whales will be considered as part of the analysis of whether the action is likely to jeopardize the continued existence of the listed species.
In making our decision with respect to this particular area, we did so within the framework of our joint NMFS/USFWS policy on implementation of Section 4(b)(2) (81 FR 7226, February 11, 2016) (“Section 4(b)(2) Policy”). Specifically, when a Department of Defense (DOD) agency requests an exclusion the basis of national-security or homeland security impacts, it must provide a “reasonably specific justification” of a probable incremental impact on national security that would result from the designation of that specific area as critical habitat (81 FR at 7231, February 11, 2016). Where the request is substantiated with such a reasonably specific justification, we give “great weight” to those concerns in analyzing the benefits of exclusion.
The proposed exclusion of the QRS and 10-km buffer comprise about 44 percent of Unit 11 (Coastal Washington), but represents only a very small portion of the total critical habitat designations for the CAM DPS (about 3 percent) and the MX DPS (about 1 percent). The QRS and associated buffer also have a significant degree of overlap with the OCNMS, where certain activities are prohibited, including oil, gas, or mineral exploration, development, or production; discharging or depositing any material or other matter; drilling into, dredging, or otherwise altering the seabed, with some exceptions (15 CFR 922.152). Because of these prohibitions, the likelihood of other Federal activities being proposed in this area of the QRS may be limited.
In response to public comments, and as described in the Final Biological Report, the CHRT completed a reassessment of the relative conservation value of each particular area under consideration for designation for each DPS. This reassessment was conducted to address multiple concerns that were raised in the comments regarding the data considered by the CHRT in rating the relative conservation of specific areas, and particularly that this initial analysis was confounded by data on non-listed humpback whales from the Hawaii breeding population (the “Hawaii DPS”). The primary consideration in the CHRT's re-analysis of relative conservation value was the degree to which whales of a given DPS rely on each particular area for feeding. To evaluate this, the CHRT considered the best available data on migratory destinations, distribution patterns, and proportions of the DPSs using or estimated to use different feeding areas (
In support of their request for exclusion of the QRS and buffer area, the Navy pointed to the extensive range of planned activities, which are described in their Final Northwest Training and Testing (NWTT) Supplemental Environmental Impact Statement (SEIS) published on September 18, 2020, and stated that any additional, future modifications to these activities to minimize impacts on humpback whale critical habitat would impact the Navy's ability to meet mission requirements. The Navy pointed to the use of explosives, in particular, as being likely to have adverse effects on humpback prey species, although not likely at the population level of the prey species. In their initial request, dated December 5, 2018, the Navy stated that if additional mitigation requirements were to result from a designation of critical habitat, they would likely need to halt, reduce in scope, or geographically or seasonally constrain testing activities to prevent adverse effects to critical habitat, and this would in turn impact their ability to test and field new systems and platforms. To avoid potential, additional, spatial restrictions on their activities within the QRS, the Navy also requested exclusion of an additional 10-km buffer around the QRS from the critical habitat designation. The Navy determined the size for this buffer using sound attenuation modeling to calculate the farthest distance at which fish would be expected to be injured from the largest explosive the Navy can reasonably foresee testing in the QRS; and, in subsequent communications, the Navy further clarified that the size of the buffer also incorporated uncertainty for updates in resource-related science, changes in oceanographic conditions that could reduce attenuation, and the evolution of military technologies that may behave differently in the environment.
We continue to conclude that the Navy has provided a reasonably specific justification to support the requested exclusion of the QRS, and consistent with our Section 4(b)(2) Policy, we gave great weight to these concerns when analyzing the benefits of exclusion. Our consideration of the multiple factors discussed, coupled with the potential delay in critical missions in order to complete adverse modification analyses, cause us to continue to find that the benefits of excluding the QRS due to national security impacts outweigh the benefits of designating this portion of Unit 11 as critical habitat for the MX and CAM DPSs. However, we are modifying our proposed exclusion of the buffer area. Specifically, we are not excluding a portion of the 10-km buffer area extending from the northeast corner of the QRS where it overlaps with the OCNMS. As discussed in the Section 4(b)(2) Report, we concluded the benefits of designating critical habitat for the MX and CAM DPSs within this portion of the buffer are not outweighed by national security impacts of including that portion at this time.
We acknowledge the concerns raised by the commenters regarding potential impacts to the whales and their prey because of certain Navy activities, such as sonar and explosives. The Biological and Conference Opinion on the Navy's Northwest Training and Testing Activities, issued by NMFS on October 19, 2020, addresses activities within the QRS and analyzed the effects of the Navy's planned activities on humpback whales as well as their prey. As discussed in that consultation, the Navy has adopted certain mitigation measures within the QRS, including the portion of the QRS that overlaps with the OCNMS, to avoid or minimize adverse impacts on marine mammals and other marine resources in this area. Exclusion of the QRS area will not impact our ability to continue to work closely with the Navy through the section 7 consultation process to minimize and mitigate impacts to the humpback whales as a result of the Navy's testing and training activities.
The Southern California Range Complex (SOCAL), which is a portion of the Navy's Hawaii-Southern California Training and Testing Study Area (HSTT), overlaps with approximately 83 percent of critical habitat Unit 19. We agree that the activities that occur in the SOCAL range complex (
Also, as discussed previously in response to Comment 30 and in further detail in the Final Biological Report, we reassessed the relative conservation value of each particular area under consideration for designation for each DPS in light of issues and concerns raised in public comments, particularly the assertion that our initial analysis was confounded by consideration of non-listed humpback whales from the Hawaii breeding population. In conducting the reassessment, the CHRT's primary consideration when rating the relative conservation value of each particular area was the degree to which whales of a specific DPS rely on each particular area for feeding. In conducting this analysis, the CHRT reviewed the best available scientific data on migratory destinations, distribution patterns, and proportions of the DPSs using or estimated to use different feeding areas (
Given the results of the economic analysis that indicate Unit 10 is projected to experience the greatest probable economic impact, coupled with the relative low conservation rating of this particular area, we find that the benefits of excluding this particular area outweigh the benefits of designating it as critical habitat. We are therefore excluding this particular area from the final critical habitat designation for the MX DPS pursuant to the authority of section 4(b)(2) of the ESA.
The ESA requires that we designate critical habitat for listed species to the maximum extent prudent and determinable, and it allows the Secretary to exclude particular areas after conducting an exclusion analysis if the benefits of including the area in the designation are outweighed by the impacts (
As discussed previously (see response to Comment 1), the costs estimated in the analysis are not exclusive to NMFS, and as shown in Exhibit 1-3 of the FEA, for each forecasted consultation, the analysis estimates administrative costs to NMFS, a Federal action agency, and a third party. A third party can be a private company (
The relative conservation value of Unit 8 was reassessed by the CHRT in response to public comments and through this reassessment, the relative conservation value for Unit 8 was changed from high to medium. This rating was largely based on the relative level of use of this area by whales from the MX DPS and the presence of a feeding BIA. We also considered the recent information indicating that this area likely has a strong connection to Kodiak Island (Unit 5), which is considered to have very high conservation value for the MX DPS (NMFS 2020a). While we agree with the commenter that this is not the most biologically important area for the MX DPS, as reflected in the final medium conservation value rating for this area, this area meets the ESA's definition of critical habitat and is considered important to the conservation and recovery of the MX DPS. It is considered more important than the areas assessed as having “low” conservation value. Further, the ESA does not direct that a designation must be limited to only the “most important” areas. An area that meets the definition of “critical habitat” on the basis of the best available information is presumptively included in the designation, subject to the exclusions process of section 4(b)(2), which allows for exclusion only in particular circumstances.
Specifically, the second sentence of section 4(b)(2) of the ESA provides that the Secretary may exclude particular areas from a designation only if the Secretary finds that the benefits of excluding that particular area from the designation outweigh the benefits of including that particular area in the designation, and failure to include the area in the designation will not result in the extinction of the species (50 CFR 424.19(c)). As we explained in the
While two feeding groups of whales are currently recognized along this portion of the CCE (
Multiple krill hotspots in association with submarine canyons have been
The annualized economic impact of designating these areas was estimated to be $6,900 for Unit 12 and $9,500 to $10,000 for Unit 13, which are not considered particularly high or significant costs. The whales in the DPS for which these units would be designated are endangered and considered to have relatively low abundance, and we find that the habitat in both Units 12 and 13 is important to support the recovery of this DPS. After engaging in the consideration of impacts as discussed in the response to Comments 45 and 47, we therefore conclude that the standard under section 4(b)(2) is not met; the benefits of designating these areas is not outweighed by the estimated probable economic impacts associated with each of these habitat units. Therefore, we are not excluding these specific areas from the final critical habitat designation for the CAM DPS.
As discussed previously (see response to Comment 33), BIAs, are not necessarily synonymous with critical habitat and vice versa, and while BIAs were an important consideration in the CHRT's assessments, lack of a BIA does not disqualify areas from consideration as critical habitat under the ESA. While non-listed humpback whales from the Hawaii breeding population are more abundant within the larger Gulf of Alaska region relative to whales from the threatened MX DPS, this region is part of the occupied range of the MX DPS. Humpback whale “stocks” identified under the MMPA are not synonymous with DPSs under the ESA, and the currently recognized MMPA stocks, which consist of multiple DPSs, are currently being reviewed by NMFS (Muto
Based on the CHRT's reassessment of the relative conservation values of all specific areas, the conservation value of Unit 6 to the MX DPS was changed from the initial medium rating to low conservation value (NMFS 2020a). This rating was largely influenced by the low percentage of MX DPS whales identified in this area during the SPLASH study (5 of 301 MX DPS whales), the low to moderate predicted movement probability of MX DPS whales into the larger Gulf of Alaska region (
Based on the analysis in the FEA, the estimated annualized economic impacts of designating Unit 6 as critical habitat was increased to $5,200-$5,600 from the previous estimate in the draft analysis of $3,400-$3,700 (IEc 2020). This increase was the result of new information regarding the increased rate of consultation on aquaculture and hatchery projects in future years per data from ADF&G, the increased rate of consultations on water quality management activities per data from ADEC, an update to 2020 dollars (from 2018 dollars), and an update to the analysis timeframe to 2020-2029 (previously, 2019-2029). Although the estimated economic impacts are still considered relatively low, we conclude that the benefits of excluding Unit 6 outweigh the relatively low conservation value of including Unit 6 in the critical habitat designation for the threatened MX DPS. We also conclude that this exclusion will not result in the extinction of the MX DPS. Thus, Unit 6 is excluded from the final critical habitat designation (NMFS 2020b).
Similar to previous critical habitat designations, this clarification regarding manmade structures will apply only to those structures in place by the effective date of this rule. We conclude that it would be an unwarranted departure from agency practice and inappropriate to include planned or future facilities in this clarification. The construction of facilities in the future within the critical habitat may pose adverse effects to the physical or biological feature or to the area, and there would be a benefit to review of such projects through interagency consultation applying the requirements of section 7 of the ESA. In such cases, we find it appropriate that those construction activities be carried out in a manner that is required to consider and avoid adverse destruction or modification of the critical habitat. We also note that this clarification in the critical habitat regulatory language does not constitute an exclusion to the critical habitat designations under section 4(b)(2) of the ESA, but rather it is a clarification regarding what is considered critical habitat to ensure consistency with the standards of the statutory definition.
However, we note that the commenter appeared to go further than previous practice to include harbors and ports in this exclusion request. Such areas are not generally excluded from the referenced critical habitat designations that the commenter cited in support. Rather, the regulatory clarification in both the sea otter and Cook Inlet beluga whale critical habitat designations is specific to manmade structures. The Cook Inlet beluga whale critical habitat designation's exclusion of the Port of Anchorage is inapposite. There, the exclusion of the port was not limited to the manmade structures within the port and was not for the purpose of mere clarification. Rather, that particular port, which is designated by the Department of Defense (DOD) as a Strategic Port, was excluded from Cook Inlet beluga whale critical habitat under section 4(b)(2) based on consideration of national security impacts. No information regarding impacts to national security were provided by the commenter, and we have received no such exclusion request from DOD. Thus, the ports will not be excluded from this final designation.
Consistent with the critical habitat designations cited by the commenter, we are also not excluding an additional 500 foot zone or buffer around manmade structures. The justification put forward by the commenter to support the requested 500 foot buffer is the high degree of vessel and seaplane presence and traffic around the ferry, harbor, and seaplane structure and facilities. While it is clear these are areas have a relatively high level of routine vessel and plane activity, this does not necessarily indicate that there would be significant costs from including the area in the designation. There is no obvious Federal nexus with many of these identified activities, and likely only a small subset of these activities would be subject to the requirements of section 7 of the ESA. In addition, the impact of these types of activities will largely be direct impacts on the whales themselves (
In conclusion, after engaging in the consideration of impacts under section 4(b)(2), we find there is no clear basis to establish a meaningful benefit from excluding a 500 foot buffer around these structures from the critical habitat designations. We therefore conclude that the standard under section 4(b)(2) is not met; the benefits of including the buffer area in the designation are not outweighed by any benefit of exclusion. Therefore, we are not making this additional exclusion.
Although we are not extending the critical habitat boundary as recommended by this commenter, we will continue to address the threats raised by this commenter as being particular concerns in this area. Specifically, “take” of these listed whales as a result of ship strikes, harassment, and entanglement will continue to be addressed as appropriate under sections 7, 9, and 10 of the ESA and under the MMPA. We also look forward to continued results from this study, including information on future trends in humpback whale occurrences within the bay and the DPS identity of whales in this area.
Within the Salish Sea, scientific survey data indicate that the highest densities of humpback whales occur within the Strait of Juan de Fuca up to Port Angeles, especially on the British Columbia side of the strait, with only intermittent use of the waters deeper within Puget Sound (pers. comm., John Calambokidis, Cascadia Research Collective, February 26, 2020). Satellite tagging data for 42 humpback whales that were tagged off the coast of Washington and tracked during mid-summer and early fall of 2018 and 2019 indicate a consistent habitat use pattern, with whales showing a preference for continental shelf and shelf-edge habitat
The commenter points to Figure 2 in the Draft Biological Report to support their assertion that the proposed rule overlooked research that shows humpback breeding locations near Guam and the Northern Mariana Islands. This particular figure was taken from a 2015 IWC report (Ivashchenko
Because endangered WNP DPS whales have been documented to occur off some of the Mariana Islands, we have assessed the impacts of Federal actions in this area on the WNP DPS in relevant ESA section 7 consultations. Thus, despite the lack of sufficient data to support the designation of breeding areas as critical habitat, we will continue to address potential impacts from Federal actions on these whales through section 7 of the ESA. We will also continue to monitor results of humpback whale research being conducted in waters off the Mariana Islands and other hypothesized breeding areas (
The diet of humpback whales has been studied and described using multiple techniques, including examination of stomach contents (typically for commercially harvested whales), stable isotope analyses, and direct observations of feeding whales. The Biological Report (NMFS 2020) contains a discussion of humpback whale diet information by geographic region and includes appended tables listing prey items, locations and methods of the study, and associated references. We are not aware of any additional diet information not already reviewed in the Biological Report that is specific to any DPS (nor was any provided by the commenter).
These diet studies were used to identify the prey species that are common or most prevalent in the diet of humpback whales within the relevant geographic regions. In response to the public comments, these prey (at the genus or species level) have been expressly incorporated into the essential feature description for each humpback whale DPS. We relied on information regarding the distribution of the prey species as well as location of the various diet studies to identify appropriate prey items specific to each DPS of humpback whales. Specifically, we identified euphausiids from genus
We also examined the available diet information to identify what specific age-classes of prey species consumed by humpback whales have been reported. For example, humpback whales have been reported to consume all age classes of Pacific herring (Moran and Straley 2018), and post-larval euphausiids (Nemoto 1957, 1959). Studies focusing around Kodiak Island indicate that humpback whales consume juvenile walleye pollock (
Although many other prey items have been reported as being taken by humpback whales, these reports are rare, spatially or temporally limited, or are historical observations that have not been further substantiated with more recent evidence. For example, copepods were often reported by Nemoto (1957, 1959, 1977) in the stomachs of humpback whales taken during whaling, but characterized as “incidental” given their low number in the stomach relative to their abundance in the sea and the distribution of the whales relative to the more offshore distributions of copepods. Kieckhefer (1992) observed surface-feeding humpback whales at Cordell Bank feeding on schooling fish that were “tentatively identified” as juvenile rockfish (
Because there are limitations to the available studies and data, including seasonal, spatial, and temporal limitations that affect the resulting diet information, and because changes in ocean conditions can alter the relative importance of some prey species within the humpback whale diet at a particular point in time, it is not possible to identify an exhaustive list of prey species as part of the essential feature for each DPS. We therefore applied the best available scientific data to identify a non-exhaustive list of the predominant prey species for each DPS. We find that this is the level of specificity supported by the best available data, which provides adequate notice to the public of the species that are most likely to constitute prey for each DPS, and is appropriate for defining the essential feature. As more data become available regarding the particular diets of each DPS, that data should be considered as part of the best available scientific and commercial information to inform particular section 7 consultations.
We further find that the essential prey feature may require special management considerations or protection either now or in the future. Most of the prey
As we discussed in the proposed rule (84 FR 54354, October 9, 2019), humpback whales within the North Pacific feeding areas are usually observed in association with, or specifically targeting, dense aggregations of prey (
In conclusion, we find that the essential prey feature as revised for each DPS is described at an appropriate level of specificity in light of the best available scientific data about the humpback whale diet and prey species. We also note that section 7 consultations must be based on the best, currently available scientific and commercial data at the time of consultation and should address the particular set of facts relevant to that consultation (the nature of the project and its effects on the critical habitat; the location, timing, and duration of the effects, etc.).
Although anthropogenic noise was rated as posing a low level threat to the humpback whales at the time of listing (Bettridge
It is correct that a qualitatively defined sound feature has been included in two previous critical habitat designations for whale species, Main Hawaiian Islands insular false killer whales (83 FR 35062, July 24, 2018) and Cook Inlet beluga whales (76 FR 20180, April 11, 2011). However, those species differ in material ways from the humpback whale. Both of those species are toothed whale species (not baleen) and rely on sound to navigate and locate prey and have limited ranges or areas of occupancy. The occupied range of insular false killer whales is restricted to the waters surrounding the main Hawaiian Islands, and like other odontocetes, they rely on their ability to send and receive sounds to navigate, communicate, and detect predators and prey within their environment. The listed beluga whales have a restricted range in the highly turbid waters of Cook Inlet and rely on sound rather than sight for many important functions. In contrast, no qualitative sound-related feature has been identified for the more migratory Southern Resident killer whales (71 FR 69054, November 29, 2006) or for any baleen whales (
We must base our designations of critical habitat on the best available science for a particular species. What is considered “essential to conservation” and thus qualifies as an essential feature necessarily depends on the particular species' biology and the available science regarding that species' habitat needs. Thus, habitat features that are considered essential to conservation of one species may not necessarily be essential to a different species. Few studies have examined the effects of noise, especially ship noise, on habitat use and feeding behavior of baleen whales. At this time, given the current limited scientific understanding and because humpback whales occupy a wide range of soundscapes, use highly diverse and spatially broad areas, and demonstrate mixed responses to noise, we do not find that identification of a sound-related habitat feature as an “essential” habitat feature is appropriate in this case.
We disagree with the commenter that the ESA requires that we apply a “precautionary principle” at the stage of determining critical habitat such that we must resolve scientific uncertainty in favor of conserving listed species. Although it is appropriate to give the species the “benefit of the doubt” of significant uncertainty in the context of a section 7 consultation, that concept does not generally apply to determinations under section 4 of the ESA.
Specifically, entanglement of whales in marine debris, which is a direct impact on the whales and constitutes “take,” is already prohibited under section 9 of the ESA for endangered whales and by the rule issued under section 4(d) (50 CFR 223.213) for threatened whales. Such impacts can already be addressed through section 7 consultations on the listed whales (when relevant). In addition, when pollution in the form of plastics is associated with a Federal action and is degrading the quality of the prey feature or harming the whales, we will address these impacts through section 7 consultations.
With respect to water contaminants and toxins, which we acknowledged is a management concern for the identified prey essential feature (84 FR 54354, October 9, 2019), we will address this threat through consideration of prey “quality” during consultations on the critical habitat. Humpback whales can bioaccumulate organic contaminants, and elevated levels of certain contaminants have been observed in humpback whales feeding off southern California (Elfes
Entanglements and ship strikes are direct effects on humpback whales, and they will continue to be managed to the extent possible under the ESA and MMPA. Take of humpback whales in particular by either of these threats is prohibited under section 9 of the ESA (as to the endangered DPSs) and the rule at 50 CFR 223.213 issued under section 4(d) (as to threatened DPSs), and when relevant to particular Federal actions, they are considered in section 7 consultations on the listed whales (under the jeopardy standard). In addition, in cases where a Federal action has the potential to obstruct the whales' movement and thereby prevent or impede the whales' ability to access prey, we would consider that as constituting a negative impact on the area of designated habitat itself in addition to the defined prey feature, which expressly incorporates consideration of “accessibility.” In other words, the whales' ability to move freely to access their prey while on the feeding grounds is inherent in the prey essential
We did not contact ADEC directly in the course of gathering information to inform our economic impact analysis. Based on communications with ADF&G, it was our understanding that comments from all state agencies would be coordinated and provided through ADF&G. In response to this concern and to ensure relevant data and information from ADEC were considered in the final economic impact analysis, we had subsequent discussions directly with representatives from ADEC (see FEA, IEc 2020).
We understand the concerns expressed by ADF&G regarding communication and coordination with respect to the humpback whale critical habitat designation and have endeavored to improve communications with ADF&G as we have moved forward on other ESA actions. However, there is no basis for the assertion that we have violated section 6 of the ESA or the terms of the Section 6 Agreement with the State of Alaska. Section 6 of the ESA acknowledges the important role of States in furthering the purpose of the ESA and specifically addresses State programs that have been established for the conservation of endangered and threatened species (16 U.S.C. 1535). If the State's program meets the criteria set forth in section 6(c) of the ESA, then the State and NMFS may enter into a cooperative agreement (a “Section 6 Agreement”). Under Alaska's Section 6 Agreement with NMFS, both parties have agreed to “cooperate for the common purpose of planning, developing, and conducting programs to protect, manage, and enhance populations of all resident endangered and threatened species” covered by the agreement. Through this agreement, NMFS is also authorized to assist in, and provide Federal funding for, implementation of the State's conservation program. Since Alaska entered into a Section 6 Agreement with NMFS on December 3, 2009, the State has received funding from NMFS to support work on Steller sea lions, ringed seals, bearded seals, and Cook Inlet beluga whales. The designation of critical habitat is not considered a “program” under section 6 of the ESA or the Section 6 Agreement and is instead a rulemaking under section 4 of the ESA, the authority for which is specifically delegated to the Secretaries of Commerce and Interior. Neither section 6 nor any other section of the ESA provides any basis to share decision-making authority with a state entity.
Section 4(b)(2) requires that critical habitat be designated on the basis of the best scientific data available. As is our consistent practice, the best available data in support of the critical habitat designations for humpback whales was summarized in a draft supporting report—the Draft Biological Report (NMFS 2019a). Because the Draft Biological Report was developed specifically to inform a rulemaking, it was categorized as “influential scientific information” (ISI) under the Information Quality Act (IQA) (Pub. L. 106-554, Section 515) and subject to the peer review requirements outlined in OMB's Final Information Quality Bulletin for Peer Review (“Bulletin,” December 16, 2004). Therefore, in accordance with the IQA, the Bulletin, and NOAA Information Quality Guidelines (
In developing the proposed rule, we gathered and reviewed the best available scientific literature and reports, and we engaged the expertise of a team of scientists and managers from across NOAA as members of the CHRT. During the course of compiling data and information, we consulted with numerous scientists from Federal, academic, and non-academic organizations in Alaska and elsewhere (
Section 4(b)(2) of the ESA authorizes the Secretary of Commerce to designate critical habitat on the basis of the best available scientific data after taking into consideration the economic, national security, and other relevant impacts of the designation. The ESA, implementing regulations in 50 CFR part 424, and existing agency policy do not establish a consultation process or role for other entities (with the exception of federally recognized tribes) in the development of regulations under section 4 of the ESA. While we do coordinate with other organizations when gathering the best available scientific data relevant to a particular rulemaking under section 4 and solicit input from other organizations and partners on proposed rules during public comment periods, we do not consult on the development of the proposed rule itself, as this role is reserved for the Secretary of Commerce and his designees. NOAA Fisheries Policy 01-117 applies to ESA section 7 consultations that are conducted on fishery management activities governed by fishery management plans developed by the Councils pursuant to the Magnuson-Stevens Act; therefore, this policy is directly relevant to Council actions and authorities but does not apply to NMFS' decisions to implement section 4 of the ESA. Although we regret that the Council feels there was a lack of coordination prior to the publication of the proposed critical habitat rule for humpback whales, we do not find it appropriate or necessary to revise Policy 01-117 to establish a consultation process regarding ESA section 4 rulemaking.
The results presented in Wade (2017) are significant data that informed the biologically based aspects of our critical habitat determinations. They were not relevant to, and therefore not used to evaluate, the economic impacts of designating critical habitat; thus, neither the 2016 nor the 2017 report were cited in the Draft Economic Analysis (IEc 2019a). The Wade (2017) report was discussed and cited in the proposed rule (84 FR 54354, October 9, 2019) and the Draft Biological Report (NMFS 2019a), and was included in the separate list of references that was also made publicly available on
The 2017 IWC report was not available at the time the humpback whale status review was completed in 2015 (Bettridge
Moreover, as explained previously (in section, Critical Habitat Definition and Process), the ESA expressly requires that we base our critical habitat determination on the best scientific data available, not the best scientific data possible. We must proceed with a designation where the best available scientific data provides a sufficient basis to determine that the ESA's standards are met for the specific areas proposed. The standard requires “not only that data be attainable, but that researchers in fact have conducted the tests;” we are not required to conduct new research or studies.
We are required to designate critical habitat to the maximum extent prudent and determinable at the time a species is listed under the ESA. The fact that
The smaller size of the critical habitat designation for the WNP DPS is largely a reflection of the distribution of these whales, which primarily use feeding areas outside of U.S. waters, which cannot be included in a designation (50 CFR 424.12(g)). Whales from the MX DPS are more broadly distributed within U.S. waters and feed in more regions within U.S. waters than whales from the WNP DPS. Therefore, more areas met the definition of critical habitat for the MX DPS, and a larger total area is included in the critical habitat designation for this DPS.
The Biological Report, which summarizes relevant scientific information that informed the identification of critical habitat areas and the assessment of the relative conservation value of these areas, was subjected to peer review per requirements outlined in OMB's Final Information Quality Bulletin for Peer Review (“Bulletin,” December 16, 2004) and NOAA Information Quality Guidelines (
Humpback whales breed and calve in tropical and subtropical waters in the winter months, typically during January-May in the Northern hemisphere. They exhibit a high degree of fidelity to particular breeding areas, a pattern which contributed to how DPSs were delineated and listed under the ESA (Bettridge
In the North Pacific Ocean, humpback whales feed in biologically productive waters along the coasts of California, Oregon, Washington, and Alaska; British Columbia, Canada; and in waters off of Russia (
Although these feeding areas have an almost continuous distribution around the North Pacific basin, multiple studies have indicated fairly high levels of fidelity of humpback whales to particular areas and limited movements of whales among the broader feeding regions (
Genetic analyses of skin samples collected during the SPLASH study provide additional insight into the structuring of humpback whale populations across the feeding areas (Baker
Overall, while the available photo-identification data indicate varying degrees of mixing of populations across the feeding areas, the overall pattern of structuring of populations among the feeding areas, as well as the pattern of migratory connections between particular feeding areas and breeding areas, contributed to how the various DPSs are described in the listing rule (81 FR 62260, September 8, 2016). In particular, the threatened MX DPS, which has previously been estimated to include about 2,806 whales (CV = 0.055, Wade 2017), is described as including whales that feed primarily off California-Oregon, northern Washington-southern British Columbia, in the Gulf of Alaska and East Bering Sea (50 CFR 223.102). The endangered CAM DPS, which has previously been estimated to include about 783 whales (CV = 0.170, Wade 2017), is described as including whales that feed along the West Coast of the United States and southern British Columbia (50 CFR 224.101) and thus individuals from that DPS co-occur with MX DPS whales while in their feeding areas. The endangered WNP DPS, which has been estimated as including about 1,066 whales (CV = 0.079, Wade 2017), is described as including whales that feed primarily in the West Bering Sea and off the Russian coast and the Aleutian Islands (50 CFR 224.101) and thus individuals from this DPS also co-occur with MX DPS whales while in their feeding areas. Our understanding of these patterns may change as new data become available, and the patterns themselves may changes if the whales shift their distributions in response to changing ocean conditions, or as the listed DPSs undergo recovery and expand their feeding ranges.
All three of these listed DPSs overlap spatially to varying degrees with the “Hawaii DPS” of humpback whales, which was found to not warrant listing under the ESA in 2016 (81 FR 62260, September 8, 2016). The “Hawaii DPS,” which has an estimated abundance of about 11,571 whales (Wade 2017), breeds in waters around the Hawaiian Islands and has been observed on most of the known feeding grounds within the North Pacific (Bettridge
Humpback whales are filter feeders, gulping large volumes of prey and water during discrete lunges (Goldbogen
Satellite tagging efforts have provided some insights into the fine-scale movements of the whales while on the foraging grounds, indicating the duration, area, and variability in the areas over which the whales feed. For instance, in the summers of 2007 to 2011, Kennedy
The phrase “geographical area occupied by the species,” which appears in the statutory definition of critical habitat, is defined by regulation as an area that may generally be delineated around species' occurrences, as determined by the Secretary (
The endangered CAM DPS is described as humpback whales that breed in waters off Central America in the North Pacific Ocean and feed along the West Coast of the United States and southern British Columbia (50 CFR 224.101(h)). The breeding range of this DPS includes waters off the Pacific coast of Central America, from Panama north to Guatemala, and possibly into southern Mexico (Bettridge
In terms of distribution across their foraging range, CAM DPS whales are significantly more common in waters of southern California and occur in progressively decreasing numbers up the coast towards Washington and Southern British Columbia (Steiger
The threatened MX DPS of humpback whales is defined as humpback whales that breed or winter in the area of mainland Mexico and the Revillagigedo Islands, transit Baja California, or feed in the North Pacific Ocean, primarily off California-Oregon, northern Washington/southern British Columbia, northern and western Gulf of Alaska, and East Bering Sea (50 CFR 223.102(e)). Of the three DPSs addressed in this proposed rule, the MX DPS has the broadest distribution within the U.S. portion of their range. Through the SPLASH study, photo-identified MX DPS whales were matched in all five of the major feeding areas in, or partially in, U.S. waters—
In terms of their distribution across this range, whales using different portions of the MX DPS breeding area appear to target different feeding destinations. During SPLASH surveys, whales that had been photo-identified along the Pacific coast of mainland Mexico were sighted in highest numbers off the coast of California and Oregon (97 of 164 total matches), suggesting that this is their primary foraging destination (Calambokidis
Multiple studies have reported sightings of a small number of whales in both the Mexico and Hawaii breeding areas (
Humpback whales of the endangered WNP DPS are listed as humpback whales that breed or winter in the area of Okinawa and the Philippines in the Kuroshio Current (as well as unknown breeding grounds in the Western North Pacific Ocean), transit the Ogasawara area, or feed in the North Pacific Ocean, primarily in the West Bering Sea and off the Russian coast and the Aleutian Islands (50 CFR 224.101(h)). Whales from this DPS have been sighted in foraging areas off the coast of Russia, primarily Kamchatka, the Aleutian Islands, as well as in the Bering Sea and Gulf of Alaska, and off northern and southern British Columbia (Darling
Several studies have reported sightings of a small number of photo-identified whales in both the Asia (off Japan or the Philippines) and Hawaii breeding areas (
In terms of their distribution across the U.S. portion of their range, whales of the WNP DPS are most likely to be found off the Aleutian Islands and in the Bering Sea (Wade
The regulatory definition of the WNP DPS reflects that the breeding range of the WNP DPS is not yet fully resolved. At the time of listing, the breeding range of this DPS was known to include the waters off Okinawa and the Philippines in the area of the Babuyan Islands (Barlow
The statutory definition of occupied critical habitat refers to “physical or biological features essential to the conservation of the species,” but the ESA does not specifically define or further describe these features. ESA-implementing regulations, however, define such features as the features that occur in specific areas and that are essential to support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity (50 CFR 424.02).
To assess habitat features that may qualify as “essential to the conservation” of humpback whales, the CHRT discussed physical and biological features that are essential to support the life history needs of humpback whales within the areas they occupy within U.S. waters (see 50 CFR 424.02 (defining “physical or biological features essential to the conservation of the species”)). The CHRT considered and evaluated various features of humpback whale habitat, such as prey, migratory corridors or conditions, and sound/soundscape. Significant considerations, CHRT discussions, and conclusions are summarized in the proposed rule (84 FR 54354, October 9, 2019) and the Final Biological Report. Ultimately, as discussed in the following paragraphs, the CHRT identified humpback whale prey as an essential biological feature of the occupied critical habitat and found that the best available scientific information does not currently support recognizing additional essential features. In our responses to comments, above, we explained our reasoning in greater detail. In response to public comments requesting that additional specificity be added to the proposed prey feature, we reviewed and reconsidered the available literature regarding humpback whale prey and, as discussed in the following section, have revised the single, general prey feature that was originally proposed so that a tailored essential feature is presented
Although written for the taxonomic species and thus now outdated, the 1991 NMFS Recovery Plan for humpback whales identified four major recovery objectives, the first of which was, “maintain and enhance habitats used by humpback whales currently or historically” (NMFS 1991). As part of that objective, we had identified multiple recommended actions to further the species' recovery, including “providing adequate nutrition” and “monitoring levels of prey abundance” (NMFS 1991). The Recovery Plan stated that adequate nutrition is needed for the recovery of the species, and emphasized the need to maintain and optimize levels of, and access to, prey (NMFS 1991). The Recovery Plan also noted that humpback whales require access to prey over a sufficiently widespread feeding range to buffer them from local fluctuations in productivity or fisheries removals (NMFS 1991). These considerations regarding adequate nutrition and prey abundance and availability are still relevant today for the MX, CAM, and WNP DPSs of humpback whales.
Whales from each of these three DPSs travel to U.S. coastal waters specifically to access energy-rich feeding areas, and the high degree of loyalty to specific locations indicates the importance of these feeding areas. Because humpback whales only rarely feed on breeding grounds and during migrations, humpback whales must have access to adequate prey resources within their feeding areas to build up their fat stores and meet the nutritional and energy demands associated with individual survival, growth, reproduction, lactation, seasonal migrations, and other normal life functions. Essentially, while on feeding grounds, the whales must finance the energetic costs associated with migration to breeding areas, reproductive activities, as well as the energetic costs associated with their return migration to high-latitude feeding areas. Fat storage has been linked to reproductive efficiency in other species of large, migratory, baleen whales (Lockyer 2007), and some evidence suggests that variation in prey availability during summer is directly connected to variation in annual reproductive rates for humpback whales in the following year (Clapham 1993). Calf condition has also been significantly correlated with female body condition (low calf body condition with lower female condition) for humpback whales in Australia (Christiansen
Humpback whales are generalists, consuming a variety of prey while foraging and also switching between target prey depending on what is most abundant or, potentially, of highest quality in the system (Witteveen
Within CCE, the highly productive coastal system that extends from British Columbia, Canada to the southern Baja California Peninsula, humpback whales feed on euphausiids (specifically
Other diet items reported for humpback whales in the CCE include copepods (species not indicated), sand lance (
In the waters off Alaska, including in the Gulf of Alaska, around the eastern Aleutian Islands, and in the eastern Bering Sea, humpback whales feed primarily on euphausiids (
Other fish species that have been reported as part of the humpback whale diet for the Gulf of Alaska and/or Bering Sea regions but not ultimately determined to be significant or essential prey include eulachon (
Data are even more limited for other reported diet items, such as rockfish, cod species, and various invertebrates (
Humpback whales are not known to limit their selection of prey to particular age classes of the majority of their prey species; however, humpback whales have been documented to consume fish ≤30 cm in length (Nemoto 1959). Available data also suggest that humpback whales consume age-0, young-of-year, and age-1 walleye pollock (Krieger and Wing 1986, Witteveen
Based on the best scientific data available, we have now identified the following biological features essential to the conservation of each particular DPS.
CAM DPS: Prey species, primarily euphausiids (
WNP DPS: Prey species, primarily euphausiids (
MX DPS: Prey species, primarily euphausiids (
As generalist predators that may opportunistically switch which prey they are targeting, humpback whales will consume other prey in addition to those we identify here in the description of the essential biological features, and those other prey species may in fact be essential to the conservation of the listed humpback whales. However, the best available data do not allow us to provide an exhaustive list of all prey species that may be essential to the whales' conservation. Given the dynamic nature of the prey populations, it is also not possible to specify which of the identified common prey species will form the majority of the humpback whale diet at a particular location or point in time. However, to provide the most possible notice to the public of the features that are essential to the conservation of humpback whales, we are providing the most detailed description that current data allow. The three essential prey features identify those prey species that commonly occur within the humpback whale diet and that are known to occur within the feeding areas of the listed humpback whale DPSs. These species are thus examples of prey that can be essential
A specific area within the geographic area occupied by a species may only be designated as critical habitat if the areas contains one or more essential physical or biological features that “may require special management considerations or protection” (16 U.S.C. 1532(5)(A)(ii); 50 CFR 424.12(b)(iv)). “Special management considerations or protection” is defined as methods or procedures useful in protecting the physical or biological features essential to the conservation of listed species (50 CFR 424.02). As discussed previously, courts have made clear that the “may require” standard requires that NMFS determine that special management considerations or protection of the features might be required either now or in the future; such considerations or protection need not be immediately required (see Critical Habitat Definition and Process). Four broad categories of actions, or threats, were identified as having the potential to negatively impact the essential prey features and the ability of feeding areas to support the conservation of listed humpback whales in the North Pacific: Climate change, direct harvest of the prey by fisheries, marine pollution, and underwater noise. Each of these threats could independently or in combination result in the need for special management or protections of the essential prey feature. The “may require” standard is met or exceeded with respect to management of the essential prey feature. We do not speculate as to what specific conservation measures might be required in the future through section 7 consultations on particular proposed Federal actions. However, we can point, for example, to our authorities to manage Federal fisheries under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801,
Multiple studies have detected changes in the abundance, quality, and distribution of species that serve as prey for humpback whales in association with climate shifts, particularly with ocean warming. The nature and extent of impacts have varied across study areas and species; however, in many cases, ocean warming has led to negative impacts on humpback whale prey species. For instance, in the CCE, during the anomalous warming of the upper ocean and weak upwelling from 2013—2016, often referred to as the “blob” or the “warm blob,” sharp decreases in euphausiid biomass were observed, as evidenced by declines in both abundance and body length (Harvey
Consequences of climate-driven and climate-related reductions in the quality and abundance of prey species can cascade upwardly through ecosystems by decreasing energy transfers to higher trophic levels and potentially causing reproductive failures and die-offs of some predators (Coyle
Additional discussion on the potential impacts of climate change on humpback whale prey, including the related effects of eutrophication, harmful algal blooms, and ocean acidification is provided in the Final Biological Report (NMFS 2020a).
Within the areas under consideration for designation, a few fisheries directly target prey species that form a major part of the humpback whale diet (
Although pollution was not identified as a significant threat to any of the North Pacific DPSs of humpback whales in the recent status review (Bettridge
Marine pollution may also lead to secondary impacts on the whales' habitat. For instance, pollution from untreated industrial and domestic wastewater may be contributing to the occurrences of algal blooms. During some algal blooms, toxins (
Effects of noise on fish and zooplankton species, which is a topic of increasing research attention, may range from health and fitness consequences to mortality and reductions in abundance (Popper and Hastings 2009, Kight and Swaddle 2011, Radford
Section 3(5)(A)(ii) of the ESA authorizes the designation of specific areas outside the geographical area occupied by the species if those areas are determined to be essential for the conservation of the species. Implementing regulations require that we first evaluate areas occupied by the species and only consider unoccupied areas where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species (50 CFR 424.12(b)(2)). An occupied area can only be considered essential if there is a reasonable certainty both that it contains one or more of the essential physical or biological features and that it will in fact contribute to the conservation of the species (
Although humpback whale abundances were greatly reduced throughout their range by commercial whaling (Rice 1978, Rice and Wolman 1982, Johnson and Wolman 1984), they still occur in areas where they were once targeted by commercial whaling operations (
To determine what areas qualify as critical habitat within the geographical area occupied by the species, we are required to identify “specific areas” that contain the physical or biological features essential to the conservation of the species (50 CFR 424.12(b)(1)(iii)). Delineation of the specific areas is done “at a scale determined by the Secretary [of Commerce] to be appropriate” (50 CFR 424.12(b)(1)). Regulations at 50 CFR 424.12(c) also require that each critical habitat area be shown on a map. To create maps of the specific areas meeting the definition of critical habitat for each DPS, the CHRT considered, among other things, the scales at which biological data are available and the availability of standardized geographical data necessary to map boundaries. As noted previously, the ESA implementing regulations allow for flexibility in determining the appropriate scale at which specific areas are drawn (50 CFR 424.12(b)(1)).
Based on a review of the best available data, the CHRT delineated specific areas along the coasts of Alaska, Washington, Oregon, and California that meet the definition of critical habitat for one or more of the three DPSs of whales (Figure 1). Specific areas were also further delineated into 19 particular areas or units to facilitate subsequent analyses for each humpback whale DPS under section 4(b)(2) of the ESA (
In delineating and mapping the specific areas, the CHRT applied identified datasets in a systematic way across regions and DPSs to ensure consistency in how boundaries were determined. The approach and data used by the CHRT, which we summarize here, were described in the proposed rule (84 FR 54354, October 9, 2019) and are also discussed in further detail in the Final Biological Report (NMFS 2020a), which describes their updated assessment in response to public comments.
Although the humpback whale feeding BIAs as delineated by Ferguson
For U.S. West Coast areas (Washington, Oregon, and California), the CHRT applied the results of a habitat model for the CCE that incorporated 275 humpback whale sightings from seven systematic line-transect cetacean surveys conducted in summer and fall (July-December) between 1991-2009 (Becker
The Becker
For applicable habitat units, the CHRT also considered the polygons derived from ARS data from satellite-tagged whales (Mate
To determine appropriate nearshore boundaries for the specific areas, the CHRT used humpback whale sightings data from multiple studies (
In the following sections, we provide additional details regarding the boundaries of each of the 19 specific areas and briefly describe humpback whales' use of the specific area. We note that these delineations of specific units of habitat do not necessarily represent discrete feeding aggregations or populations of humpback whales—individual whales generally move across many of these boundaries. More detailed information regarding whale and prey distributions is provided in the Final Biological Report (NMFS 2020a).
This unit is bounded along the northern edge by a line extending due west from Egegik (at 58°14′ N, 157°28′ W) to encompass the humpback whale BIA within Bristol Bay. The boundary then extends southwest and then southward tangentially along the BIA to the coastline at Moffet Point (55°27′ N, 162°35′ W). The nearshore boundary of this unit follows the 1-m isobath (relative to MLLW). This unit covers about 19,279 nmi
Unit 1 boundaries were drawn based largely on the location of a humpback whale feeding BIA (see Ferguson
Surveys conducted during 2004 and 2006-2010 within the eastern Bering Sea and that overlapped with a portion of Unit 1, indicated widespread and persistent concentrations of euphausiids in the survey area (Sigler
Photo-identification data are not available to validate occurrences of particular DPSs within this unit; however, the available data suggest this area is a destination for whales from the Hawaii (HI, which are not listed), WNP, and MX DPSs (Baker
This unit includes waters along the northern side of Unimak Island, waters around Umnak and Unalaska Islands, and waters within Umnak and Unimak Pass. At its eastern edge, the northern boundary of this area extends from 55°41′ N/162°41′ W, tangentially along the northern edge of a humpback whale BIA west out to 169°30′ W. The western boundary extends southward through Samalga Pass to the BIA boundary on the south side of the islands, which corresponds closely to a line drawn along the 2,000-m isobath. This southern boundary follows the edge of the BIA and extends eastward to 164°25′ W. The nearshore boundary of this unit is the 1-m isobath (relative to MLLW). This unit includes waters off the Aleutian East and Aleutian West Boroughs. Unit 2 covers about 28,829 nmi
This area encompasses a humpback whale feeding BIA, which was drawn to include high density sightings of humpback whales as reported in Zerbini
Surveys conducted during 2004 and 2006-2010 within the eastern Bering Sea indicated widespread and persistent concentrations of euphausiids in this area (Sigler
Photo-identification data indicate this area is a destination for whales from the HI, WNP, and MX DPSs (Calambokidis
This area extends from 164°25′ W eastward to 158°39′ W and encompasses the feeding BIA around the Shumagin Islands. The area is bounded on its southern (offshore) edge by a line drawn along the 1,000-m isobath, which also runs along the southern boundary of the BIA. The nearshore boundary of this unit follows the 1-m isobath (relative to MLLW). This unit is mainly within the Aleutians East Borough but includes a small portion of the Lake and Peninsula Borough. Unit 3 covers about 13,162 nmi
This area was drawn from the boundary of Unit 2 eastward and encompasses an identified BIA (Ferguson
Photo-identification data indicate this area is a destination for whales from the HI, MX, and WNP DPSs (Witteveen
The western edge of this area extends along 158°39′ out to a line corresponding to the 1,000-m isobath, which marks the offshore boundary. The eastern boundary is at 154°54′ W, just east of the Shumagin Islands. The nearshore boundary of this unit follows the 1-m isobath (relative to MLLW). This unit is within the Lake and Peninsula Borough. Unit 4 covers about 15,026 nmi
This area captures the waters between two identified feeding BIAs. Survey data indicate that humpback whales are consistently found in these waters (Brueggeman
Photo-identification data demonstrate that this area is a destination for whales from the HI and MX DPSs (Calambokidis
This area includes the waters around Kodiak Island and the Barren Islands. The western boundary runs southward along 154°54′ W to a line that follows the 1,000-m isobath, and then extends eastward to a boundary at 150°40′ W. The area also extends northward to the inner mouth of Cook Inlet where it is bounded by a line that extends from Cape Douglas across the inlet to Cape
This area was drawn to capture the Kodiak Island BIA, as well as documented aggregations of humpback whales around the Barren Islands and in waters to the east of Kodiak (Rice and Wolman 1982, Zerbini
Photo-identification data demonstrate this area is a destination for whales from the HI, MX, and WNP DPSs (Calambokidis
This area extends from the mouth of Cook Inlet where it is bounded by a line that extends from Cape Douglas across the inlet to Cape Adam. The northern boundary is the 60°20′ N latitude line, just south of Kalgin Island. The nearshore boundary of this unit is the 1-m isobath (relative to MLLW). This area borders the Kenai Peninsula Borough. This unit covers about 3,366 nmi
The southern boundary of this area approximates the ecological shift between the Kodiak Island Area (Unit 5) and Cook Inlet. Unit 6 does not include the upper portions of Cook Inlet, because humpback sightings are rare north of Kalgin Island despite extensive, routine aerial surveys of this area for Cook Inlet beluga whales (K. Sheldon, NMML, pers. comm., August 2, 2018). North of the Forelands, the inlet becomes shallow and highly turbid due to deposition of glacial silt. With its extreme tidal range and mudflats, the upper inlet does not provide suitable feeding habitat for humpback whales despite the presence of prey species (
Photo-identification data demonstrate that HI and MX DPS whales occur in this area (Calambokidis
This area extends eastward from 150°40′ W at the boundary with Unit 5 (Kodiak Island Area) to 148°31′ W, and extends offshore to a boundary marked by the 1,000-m isobath. The nearshore boundary of this unit is the 1-m isobath (relative to MLLW). This unit measures approximately 8,496 nmi
This area captures the region separating the Kodiak Island and Prince William Sound BIAs and includes feeding areas around the Kenai Fjords. Estimated densities of humpback whales within the shelf portion of the Navy Temporary Maritime Activities Area, which overlaps with a portion of Unit 7, has ranged from 0.0930 in 2013 (CV = 0.74) to 0.0050 in 2015 (CV = 0.32, Rone
Photo-identification data demonstrate this area is a destination for whales from the HI and MX DPSs (Calambokidis
This area extends from 148°31′ W eastward to 145°27′ W, and extends offshore to a boundary drawn along the 1,000-m isobath. The nearshore boundary of this unit is the 1-m isobath (relative to MLLW). This unit is within the Valdez-Cordova Borough and covers about 8,166 nmi
This area was drawn to encompass the Prince William Sound feeding BIA (Ferguson
Photo-identification data confirm this area is a destination for whales from the HI and MX DPSs (Baker
This area extends from 145°27′ W to 139°24′ W and to an offshore drawn along the 1,000-m isobath. The nearshore boundary of this unit is the 1-m isobath (relative to MLLW). This unit mainly borders Yakutat Borough, but also borders a small portion of Valdez-Cordova. Unit 9 covers about 9,065 nmi
This area was drawn to capture a section of the Gulf of Alaska between two feeding BIAs (in Units 8 and 10). Surveys within this unit have been relatively limited. Surveys conducted in June-August of 1980 by Rice and Wolman (1982) indicated that humpback whales were sparsely distributed in the Gulf of Alaska (populations were still depleted), but they noted minor aggregations of humpback whales in Yakutat Bay (13 whales). More recently, 21 groups (33 individuals) of humpbacks were sighted in this area during an IWC-POWER survey in July/August of 2012 (Matsuoka
Photo-identification data confirm this area is a destination for whales from the non-listed HI DPS (Baker
This area extends from 139°24′ W, southeastward to the U.S. border with Canada and encompasses a humpback whale BIA. The area also extends offshore to a boundary drawn along the 2,000-m isobath, which corresponds to the offshore boundary of the BIA. The nearshore boundary of this unit also corresponds to the BIA boundary. This unit borders unorganized boroughs, but includes water off of Skagway-Hoonah-Angoon, Haines, Juneau, Sitka, Petersburg, Wrangell, and Ketchikan Gateway. Unit 10 covers approximately 22,152 nmi
This area was drawn to encompass well established feeding grounds in southeast Alaska and an identified feeding BIA (Andrews 1909, Baker
Photo-identification data confirm this area is a destination for whales from the HI and MX DPSs (Baker
This area extends southward from the U.S. EEZ to 46°50′ N, just north of Willapa Bay, WA. The unit extends offshore to a boundary corresponding to the 1,200-m isobath, which also aligns with the seaward extent of a BIA. The unit includes waters within the U.S. portion of the Strait of Juan de Fuca to an eastern boundary line at Angeles Point (123°33′ W). The 50-m isobath forms the shoreward boundary. The unit includes waters off Clallam and Jefferson Counties, and a portion of Grays Harbor County. Unit 11 covers about 3,441 nmi
This area was drawn to encompass the Northern Washington BIA (Calambokidis
Photo-identification data confirm this area is a destination for whales from the HI, MX, and CAM DPSs (Calambokidis
This area extends southward from 46°50′ N to 45°10′ N and extends out to a seaward boundary corresponding to the 1,200-m isobath. The 50-m isobath forms the shoreward boundary. This area includes waters off of Pacific County, WA and Clatsop County, OR. This unit covers about 3,636 nmi
This unit was drawn to capture the Columbia River plume system, which supports foraging by many predators, including concentrations of humpback whales. Hotspots with persistent, heightened abundance of krill (Santora
Photo-identification data are not available to validate occurrences of particular DPSs within this precise unit; however, the available photo-identification data do support a conclusion that this area is a destination for whales from the MX and CAM DPSs (Green
This area extends southward from 45°10′ latitude to 42°10′, and extends offshore to a boundary at the 1,200-m isobath. The 50-m isobath forms the shoreward boundary. This area includes the BIA at Stonewall and Heceta Bay, and includes waters off of Tillamook, Lincoln, Lane, Douglas, Coos, and Curry Counties. Unit 13 covers about 5,750 nmi
This unit includes the Stonewall and Heceta Bank BIA, which supports humpback whale feeding aggregations from May to November (Calambokidis
Photo-identification data confirm this area is a destination for whales from the MX DPS (Green
This area is bounded in the north at 42°10′ and extends south to the Mendocino escarpment at 40°20′. The area extends offshore to a boundary drawn along the 2,000-m isobath. The 50-m isobath forms the shoreward boundary. The area includes the marine waters off Del Norte County, CA, and most of Humboldt County, CA, and borders a small portion of Curry County, OR. Unit 14 covers about 3,412 nmi
This unit includes the Point St. George BIA, which typically supports whale feeding aggregations during July-November (Calambokidis
Photo-identification data confirm this area is a destination for whales from the MX and CAM DPSs (Calambokidis
This unit is bounded along its northern edge by the Mendocino escarpment at approximately 40°20′ N and extends southward to 38°40′ N, which corresponds to the approximate southern boundary of an identified BIA. The area extends offshore to a boundary drawn at the 3,000-m isobath. The 50-m isobath forms the shoreward boundary. This area includes marine waters off the coasts of Humboldt and Mendocino counties, CA, and covers about 4,898 nmi
The northern boundary of this unit corresponds to the Mendocino escarpment and a shift farther offshore in the habitat model predictions (Becker
Photo-identification data are not available to validate occurrences of particular DPSs within this unit; however, the available data strongly support the conclusion that this area is a destination for whales from the MX and CAM DPSs (Calambokidis
This area extends from 38°40′ N southward to 36°00′ N to encompass a BIA. The seaward boundary is drawn along the 3,700-m isobath. The inshore boundary is mainly defined by the 15-m isobath, but also extends up to the Golden Gate Bridge within San Francisco Bay. This area includes waters off of the southern edge of Mendocino County, and Sonoma, Marin, San Francisco, San Mateo, Santa Cruz, and Monterey counties. Unit 16 covers approximately 12,349 nmi
This unit encompasses the Gulf of the Farallones-Monterey Bay BIA (Calambokidis
Photo-identification data confirm this area is a destination for whales from the MX and CAM DPSs (Baker
This area extends from 36°00′ N to a southern boundary at 34°30′ N, just south of an identified BIA. The nearshore boundary is defined by the 30-m isobath, and the seaward boundary is drawn along the 3,700-m isobath. This unit includes waters off of southern Monterey county, and San Luis Obispo and Santa Barbara counties. Unit 17 covers about 6,697 nmi
This unit encompasses a BIA that extends from Morro Bay to Point Sal and typically supports high density feeding aggregations of humpback whales from April to November (Calambokidis
Photo-identification data confirm this area is a destination for whales from the MX and CAM DPSs (Calambokidis
This area extends from a northern boundary at 34°30′ N to a boundary line that extends from Oxnard, CA seaward to the 3,700-m isobath, along which the offshore boundary is drawn. The 50-m isobath forms the shoreward boundary. This unit includes waters off of Santa Barbara and Ventura counties. This unit covers about 9,799 nmi
This unit encompasses the Santa Barbara Channel-San Miguel BIA, which supports high density feeding aggregations of humpback whales during March through September (Calambokidis
Photo-identification data confirm this area is a destination for whales from the MX and CAM DPSs (Calambokidis
The northern boundary for this unit extends southwest from Oxnard, CA through the Santa Cruz Basin and out to a seaward boundary along the 3,700-m isobath. The unit is also bounded in the south by the U.S. EEZ. The 50-m isobath forms the shoreward boundary. This unit includes waters off of Los Angeles, Orange, and San Diego counties, and covers about 12,966 nmi
This area does not contain a BIA but was drawn to capture the southern extent of the cells containing the highest 90 percent of humpback whale abundance predicted by the Becker
Photo-identification data are not available to validate occurrences of particular DPSs within this unit; however, the available data support the conclusion that whales from the MX and CAM DPSs occur in this area (Calambokidis
Section 4(a)(3)(B)(i) of the ESA precludes designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD) or designated for its use, that are subject to an Integrated Natural Resources Management Plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.
After we had identified specific areas that would potentially meet the definition of critical habitat for humpback whales, but prior to publishing the proposed rule, we contacted DOD representatives and requested information regarding relevant INRMPs. In response, the U.S. Navy (Navy) provided descriptions and locations of four areas adjacent to the humpback whale specific areas and that are managed under Sikes Act-compliant INRMPs: (1) Pacific Beach Annex, WA; (2) Naval Base Ventura County, Point Mugu, CA; (3) Naval Outlying Field, San Nicolas Island, CA; and (4) Naval Auxiliary Landing Field, San Clemente Island, CA. The Navy also provided information regarding how in their view, each of their approved INRMPs provides a conservation benefit to humpback whales and their habitat. An additional fifth INRMP, associated with the Navy's Southeast Alaska Acoustic Measurement Facility, AK (SEAFAC), was also noted as being under development, and that a draft was expected to be completed in December 2019. After reviewing the information and maps provided, we found that the Pacific Beach Annex INRMP addresses an entirely upland property and does not overlap with the areas under consideration for designation as critical habitat. Therefore, that INRMP was not considered further.
As described in the proposed rule (84 FR 54354, October 9, 2019), following completion of analyses under section 4(b)(2) of the ESA and resulting decisions regarding exclusions, only two INRMPs—the Naval Outlying Field San Nicolas Island (SNI) and Naval Base Ventura County (NBVC), Point Mugu—spatially overlapped with areas under consideration for designation as critical habitat and thus warranted further review during development of the proposed designations.
The NBVC Point Mugu INRMP addresses submerged lands and resources 3 nmi out from Point Mugu (relative to MLLW) and a zone that extends 0.25 nmi offshore around San Miguel and Prince Islands. This INRMP thus includes areas that overlapped with Unit 18 (
We considered the impacts of designating particular areas under section 4(b)(2) of the ESA, and weighed the benefits of excluding each area against the benefits of including the
Below, we summarize the economic, national security, and other relevant impacts of designating the areas identified as meeting the definition of critical habitat for the three DPSs of humpback whales. Additional detail is provided in the final Economic Analysis (IEc 2020) and Section 4(b)(2) Report (NMFS 2020b).
To gather information on potential national security impacts of our proposed designation, we contacted representatives from DOD and the Department of Homeland Security (DHS) by letter dated October 9, 2018. We asked for information regarding impacts of a potential critical habitat designation for humpback whales on military operations and national security. Under the 4(b)(2) Policy, a requesting agency must provide a reasonably specific justification for the assertion that there is an incremental impact on national security that would result from the designation of that specific area as critical habitat (81 FR 7226, 7231, February 11, 2016).
Requests for exclusion due to national security impacts were initially received from the both the Navy and the U.S. Air force (USAF); however, following subsequent discussions with USAF representatives, the USAF withdrew their requests for exclusions. On December 5, 2018, the Navy requested exclusion of the following three range areas from the humpback whale critical habitat designation:
(1) Southeast Alaska Acoustic Measurement Facility (SEAFAC), which lies within critical habitat Unit 10;
(2) Quinault Range Site (QRS; a component of the Naval Undersea Warfare Center Division Keyport Range Complex), which overlaps with a portion of Unit 11; and
(3) Southern California Range Complex (SOCAL) portion of the Hawaii-Southern California Training and Testing Study Area, which overlaps with Unit 19.
The area that pertains to the first requested exclusion, SEAFAC, is small area, covering 48 nmi
The area that pertains to the second requested exclusion, QRS, is a defined space off the coast of Washington that encompasses air, surface (~5,228 nmi
Subsequent to their initial request for exclusion of QRS, the Navy conducted further analysis and, in September 2019, submitted additional information relative to this particular national security exclusion. Specifically, the Navy requested that an additional 5.4-nmi (10-km) buffer around QRS be excluded from the designation in order to avoid impacts to ongoing and future testing activities that would result in the event that Naval Sea Systems Command must halt, reduce in scope, or geographically or seasonally constrain testing activities to prevent adverse effects or adverse modification of critical habitat. The Navy determined that sound and energy levels that may cause injuries to humpback whale prey species within critical habitat from the largest explosives that could be used on the range could extend beyond the QRS boundaries, and that excluding a buffer of 10-km around QRS from the critical habitat designation would avoid additional mitigation requirements. The Navy indicated that they determined this specific buffer distance after taking into account the site specific oceanographic conditions and the best available science establishing fish injury thresholds (which the Navy cited as Popper
The area that pertains to the third requested exclusion, SOCAL, is located between Dana Point and San Diego, California, and extends more than 600
The primary impact of a critical habitat designation stems from the ESA section 7(a)(2) requirement that Federal agencies ensure their actions are not likely to result in the destruction or adverse modification of critical habitat. Determining the extent of this impact in practical terms is complicated by the fact that section 7(a)(2) contains the associated but distinct requirement that Federal agencies must also ensure their actions are not likely to jeopardize the species' continued existence. The incremental economic impacts of a critical habitat designation stem from the additional effort to engage in consultation regarding potential adverse effects to the critical habitat as part of section 7 consultations (often referred to as administrative costs), and any conservation measures that may be necessary to avoid adverse modification and that would not otherwise be implemented (often referred to as project modification costs). Thus, the incremental impacts attributable to critical habitat stem from conservation efforts that would not already be required due to the need to avoid jeopardy to humpback whales or due to other existing protections (
The analysis methods for estimating the incremental, economic impacts stemming from designation of the identified specific critical habitat areas for the WNP, MX, and CAM DPSs of humpback whales are described in the proposed rule and in detail in the FEA prepared by Industrial Economics, Inc. (IEc 2020). The economic analysis was also revised based on new information and public comments received on the Draft Economic Analysis (IEc 2019a). As detailed in the FEA, modifications made to the analysis resulted in an increase in the anticipated total present value and annualized costs of the rule, especially in Alaska, and in Unit 10 particularly. Increases in the anticipated costs of the rule reflect some changes in anticipated levels of certain activities (
The following categories of activities with a Federal nexus were identified as having the potential to affect the essential prey feature and as being expected to occur within one or more of the specific critical habitat areas under consideration: (1) Commercial fishing, (2) oil and gas activities (including seismic surveys, and oil spill planning and response), (3) alternative energy development, (4) in-water construction (including dredging and offshore mining), (5) vessel traffic (specifically, activities related to establishment of the shipping lanes by the USCG, and other USCG activities, including maintenance, repair, and replacement of aids to navigation), (6) aquaculture and hatcheries, (7) scientific research, (8) water quality management and inland activities (
Our regulations recognize that impacts of designation may be quantitatively or qualitatively described (50 CFR 424.19(b)). As discussed in chapter 2 of the FEA, the costs stemming from critical habitat designation will be largely limited to administrative costs of consultation, which are the only costs monetized in the analysis (IEc 2020). No project modifications or additional conservation measures were identified as likely to result for the majority of the forecasted consultations, largely due to the baseline protections in place. Depending on the specific area at issue and the Federal action, relevant baseline protections include, for example, protections for co-occurring listed species such as North Pacific right whales, Southern Resident killer whales, salmon, Southern DPS of Pacific eulachon, and the Southern DPS of green sturgeon; designated critical habitat for listed species; as well as protections for humpback whales under both the ESA and the MMPA. The number, location, and/or effects on prey of a few forecasted activities, particularly seismic surveys and alternative energy activities, cannot be determined at this time and would require speculation. Therefore, we did not identify any probable conservation efforts that would likely be recommended specifically to avoid adverse modification of the humpback whale critical habitat as a result of these activities, nor was it possible to estimate the cost of any such probable project modifications.
The FEA indicates that, if all 19 units were designated, the critical habitat would increase administrative costs of consultations involving humpback whales by an estimated $930,000 to $1,000,000 over the next ten years, assuming a seven percent discount rate (IEc 2020). This equates to an annualized cost of $110,000 to $120,000 over the next ten years (IEc 2020). The largest portion of the projected administrative costs are attributed to Unit 10 (25 to 27 percent of total costs), followed by Unit 13 (9 percent) and Unit 17 (7 to 8 percent). Unit 10 is also associated with the greatest level of uncertainty and potential for unquantified impacts (IEc 2020). The largest portions of the estimated costs are associated with in-water
Parties that may incur the administrative costs estimated in the analysis include NMFS, the Federal action agency (
Section 4(b)(2) of the ESA and our regulations also provide for the consideration of other relevant impacts associated with the designation of critical habitat (16 U.S.C. 1533(b)(2); 50 CFR 424.19(b)). We identified potential impacts on federally recognized tribes and Alaska Native corporations as a possible source of other impacts relevant to the humpback whale critical habitat designation. A broad array of activities that occur on Indian lands may trigger ESA section 7 consultations. Indian lands are those defined in Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997), and include: (1) Lands held in trust by the United States for the benefit of any Indian tribe; (2) land held in trust by the United States for any Indian tribe or individual subject to restrictions by the United States against alienation; (3) fee lands, either within or outside the reservation boundaries, owned by the tribal government; and (4) fee lands within the reservation boundaries owned by individual Indians.
In developing the proposed rule, we did not find any overlap between the areas under consideration as critical habitat and Indian lands, and thus preliminarily found that there were no Indian lands subject to consideration for possible exclusion. In the proposed rule we also indicated that it was not clear whether there may be some nearshore areas that could be considered for possible exclusion on the basis of tribal impacts, and that we lacked information regarding where boundaries of tribal-owned lands lie in relation to shoreward boundary of the specific critical habitat areas in Alaska, which are generally bounded by the 1-m isobath (relative to MLLW). We indicated that there are Indian tribes and Alaska Native corporations that have lands that are in close proximity to areas under consideration for designation as critical habitat for humpback whales, have usual and accustomed areas that overlap with critical habitat areas, or may otherwise be affected in coastal Alaska, Washington, Oregon, and California. Thus, as described more fully in the proposed rule, we reached out to 27 tribes located in Washington, Oregon, and California, and 149 tribes and tribal organizations located within Alaska to offer the opportunity to consult on critical habitat for humpback whales and discuss any concerns regarding the potential designations. In the proposed rule, we requested information regarding tribal impacts as a result of the designations (54 FR 54354, October 9, 2019), and following publication of the proposed rule, we contacted the potentially affected tribes and Native corporations to solicit their input on the proposed designations.
As discussed in the proposed rule, we received requests for meetings from two tribes in Washington, the Quinault Indian Nation and the Quileute Tribe, in response to our initial outreach efforts. Both tribes expressed concern regarding the potential impact of the critical habitat designation on tribal fisheries, particularly within usual and accustomed fishing areas located in coastal marine waters. We had multiple follow-up communications with these tribes; however, neither tribe elected to submit formal comment or information regarding impacts on tribal resources or treaty rights, nor did they request additional meetings or consultation.
Following publication of the proposed rule, we received several comments from tribes and requests for meetings. Specifically, we received a letter from the Sun'Aq Tribe of Kodiak, stating that, based on the available information, they did not believe the humpback whale critical habitat designation would adversely impact the Kodiak Archipelago economy. They also stated that if the designations are finalized, annual consultations should be conducted to provide opportunities to present any new information about subsistence or economic impacts. We received separate requests for meetings from the Bristol Bay Marine Mammal Council, the Aleut Marine Mammal Commission, and the Indigenous People's Council for Marine Mammals, and we subsequently participated in meetings with each organization to provide an overview of the proposed designations and discuss particular concerns regarding potential effects of the designations on subsistence as well as commercial fishing. Lastly, we received a letter, dated January 13, 202, from Shaan-Seet, Inc., the Alaska Native Village Corporation for Craig, Alaska, indicating that they had not been directly contacted about the proposed rule, and that they opposed the designation of critical habitat in Southeast Alaska. In February 2020, we contacted Shaan-Seet, Inc. to correct this oversight, and acknowledged that, while the Craig Tribal Association was on our contact list, Shaan-Seet, Inc. had been inadvertently omitted from our list of contacts and was thus not contacted directly about publication of the proposed rule. The Shaan-Seet, Inc. president indicated that we should contact the Craig Tribal Association to discuss any potential concerns further, which we subsequently did.
Ultimately, through our additional outreach efforts following publication of the proposed rule, we did not identify any specific tribal impacts that are likely to result from the designation of critical habitat for humpback whales, nor did we receive any information
The primary benefit of critical habitat designation—and the only regulatory consequence—stems from the ESA section 7(a)(2) requirement that all Federal agencies ensure that their actions are not likely to destroy or adversely modify the designated habitat (16 U.S.C. 1536(a)(2)). This benefit is in addition to the section 7(a)(2) requirement that all Federal agencies ensure their actions are not likely to jeopardize the species' continued existence. Another benefit of designation is that it provides the public, states, and others notice of areas and features important to species conservation, and information about the types of activities that may reduce the conservation value of or otherwise affect the habitat. Critical habitat designation may also lead to additional protections under state or local regulations.
In addition to the benefits of critical habitat designation to the whales, there may be ancillary benefits. These other benefits may be economic in nature, or they may result in improvement of the ecological functioning of the designated areas. Chapter 4 of the FEA (IEc 2020) discusses other forms of benefits that may be attributed to the conservation and recovery of humpback whales (although not specifically attributed to the designation of critical habitat), including use benefits (
It would be useful and informative if the best available information allowed the benefits of designation to be monetized so they could be directly compared to the economic benefits of excluding a particular area. However, sufficient and relevant data are not available to monetize the benefits of designation (
In general, the multiple datasets considered by the CHRT provided information about the importance of a given area for humpback whale feeding and the level of use of the units by whales of each particular DPS (see Appendix C, NMFS 2020a). The first dataset contained information about the feeding BIAs that have been identified for humpback whales (see Ferguson
A second dataset addressed the presence of whales from each particular DPSs within each critical habitat unit. Several different pieces of information were presented in this dataset. First, information regarding the level of survey effort (
These compiled datasets, available literature summarized in the Final Biological Report, as well as the CHRT's individual expert opinions informed the structured decision-making process that
(1) Very high—meaning areas where the available data indicate the area is very important to the conservation of the DPS;
(2) high—meaning areas where the available data indicate the area is important to the conservation of the DPS;
(3) medium—meaning the available data indicate the area is moderately important to the conservation of the DPS; and
(4) low conservation value—meaning the available data suggest the DPS does not rely on this area for feeding.
CHRT members could place all four points for a given habitat unit and DPS in one of these qualitative categories or spread those four points across any or all of the four categories. The degree to which votes were spread across the conservation value categories thus served as a measure of uncertainty in the conservation value of a particular unit. However, CHRT members were permitted to forego assigning their four votes for a specific critical habitat unit if they concluded the available data were either too limited or there was too much uncertainty associated with the available data to make an assessment of the conservation value of a particular area for the given DPS. In these instances the CHRT members were allowed to instead categorize the unit as “data deficient.”
Following an initial round of scoring, the CHRT met to discuss their assessments of the data and results. Following that team discussion, CHRT members were given the opportunity to independently re-evaluate their own point distributions and make any changes (
We reviewed and agree with the conclusions of the CHRT as presented in the Final Biological Report and used their conservation ratings of the specific areas to inform our section 4(b)(2) analysis, as described in this rule as well as in the Final Section 4(b)(2) Report (NMFS 2020b).
As is clear from the preceding discussion, the conservation benefits to the humpback whale DPSs that would result from the designation of any particular critical habitat unit, expressed as a qualitative rating, are not directly comparable to the economic benefits that would result from exclusion of the particular unit from designation, which is expressed as a quantified cost. However, to weigh the benefits of designation against the economic benefits of exclusion, we have to compare these two types of information. As noted previously, the Secretary has discretion to determine the weight to assign to the relevant factors and may exclude any particular area from the critical habitat designation upon a determination that the benefits of such exclusion outweigh the benefits of specifying the particular area as part of the critical habitat (50 CFR 424.19(c)). The Secretary, however, cannot exclude any particular area if, based on the best scientific and commercial data available, the Secretary determines that the failure to designate that area as critical habitat will result in the extinction of the species concerned (50 CFR 424.19(c)). For this analysis, we note that each of the units identified for potential designation meet the definition of critical habitat because they are in the occupied range of the species and contain the identified physical or biological feature for which we have determined that special management considerations or protection may be required; however, the areas vary as to the level of their conservation value for the species. We (exercising the delegated authority of the Secretary) determined that the conservation benefits of including areas with medium, high, or very high conservation ratings should have significant weight in this analysis. It is reasonable to give great weight to the conservation value of the habitat, in light of the purpose of critical habitat under the Act (to support the conservation, or recovery, of the species) and the statutory mandate to designate critical habitat to the maximum extent prudent and determinable.
Overall, the projected economic impacts to Federal agencies and non-Federal entities of designating each of the 19 habitat units are considered low, with annualized impacts ranging from $1,700-$32,000 per habitat unit (IEc 2020). If all 19 units were designated, the total annualized impact is estimated to range from $110,000 to $120,000 over the next 10 years (IEc 2020).
Results of the biological and economic analyses (see Table 1) indicate that for the WNP DPS, habitat units rated as having very high or medium conservation value are associated with annualized impacts ranging from $2,300-$2,700 (Unit 3, Shumagin Islands Area) to $4,600-$5,400 (Unit 5, Kodiak Island Area). (Note there were no high conservation values for the WNP DPS). Specific areas rated as having low conservation value for the WNP DPS were associated with annualized impacts ranging from $2,600 (Units 7, Kenai Peninsula Area and 9, Northeastern Gulf of Alaska) to $5,600 (Unit 6, Cook Inlet Area). After reviewing the updated costs and the CHRT's revised conservation values for each specific area, we concluded that the economic impacts for the habitat units with very high and medium conservation ratings are not outweighed by the relatively low costs attributed to any of those units. We have confidence in the data-driven process by which the CHRT carefully evaluated and then re-evaluated the relative conservation value of each critical habitat unit, and we therefore find that areas receiving these rating classifications are all of moderate to very high importance to the conservation of the WNP DPS. In other words, these higher value feeding areas are expected to support the life history needs and recovery of these whales. The benefit of designating these important feeding areas as critical habitat is not outweighed by the relatively low economic impacts projected to occur as a result of their designation. For areas rated as having a low conservation value, however, we continue to find that the economic impacts, though still objectively low, outweigh the benefits of including them in the designation. By definition, these low value habitat units, based on the CHRT's assessment of the best available data, are areas the WNP
Based on the CHRT's reassessment of relative conservation values of the specific areas for the WNP DPS, Unit 1 (Bristol Bay Area) was rated as being “data deficient.” This outcome was the result of the careful review of the available data and refinement of the underlying dataset used during the CHRT's reassessment, which are provided in the Final Biological Report (NMFS 2020a; see also response to Comment 30. Specifically, the available data regarding predicted movement probabilities (
We note, however, that historical whaling data as well as more recent survey data indicate that humpback whales use this area, which may become increasingly important feeding habitat for humpback whales as changing ocean conditions alter the distributions and abundances of important or quality prey or as the DPSs recover. Because most of this area has been poorly surveyed, and because we have an inadequate understanding of the importance of this area to ESA-listed humpback whales, the CHRT recommended that research efforts should be directed towards surveying humpback whales in this particular portion of the range.
Results of the biological and economic analyses (see Table 2) indicate that for the CAM DPS, habitat units rated as having very high, high, and medium conservation value are associated with annualized impacts ranging from $1,700 (Unit 15, California North Coast) to $10,000 (Unit 13, Coastal Oregon). Consistent with our conclusions in the proposed rule, we do not find that the relatively low estimated economic impacts outweigh the benefits of designating these higher conservation value areas for the CAM DPS. These feeding areas are expected to contribute to supporting the overall life history and conservation of these endangered whales. We do not find that the benefits of designating these areas as critical habitat are outweighed by the relatively low economic impacts projected to occur as a result of their designation. One area was rated as medium/low (Unit 12, Columbia River Area) as a result of a tie in the votes from the CHRT (
Consistent with the proposed rule, we continue to find that the benefits of designating the habitat unit rated as having low conservation value for the CAM DPS (
Results of the biological and economic analyses (see Table 3) indicate that for the MX DPS, habitat units rated as having very high and high conservation value are associated with annualized impacts ranging from $1,700 (Unit 15, California North Coast) to $10,000 (Unit 13, Coastal Oregon). Areas rated as having medium conservation value are associated with annualized costs ranging from $3,400 (Unit 8, Prince William Sound) to $8,200 (Unit 11, Coastal Washington). In no instance were these estimated economic impacts found to outweigh the value of these areas to the conservation of the MX DPS. These higher conservation value areas, which are located within all of the regions known to be used as feeding habitat by the MX DPS (
Areas rated as having low conservation value for the MX DPS also occur within all of the regions used by this DPS and are associated with estimated annualized impacts ranging from $2,600 (Units 7 and 9) to $32,000 (Unit 10). Consistent with the proposed rule and conclusions for other DPSs, we find that the benefits of designating the habitat units rated as having low conservation value are outweighed by the forecasted economic impacts associated with their designation. These low conservation value areas are areas that whales of this DPS are not expected to rely on as extensively for feeding, as indicated by their very low occurrence or predicted occurrence in these areas. Thus, based on the currently available information for the MX DPS, these areas likely have minimal conservation value for this DPS, which we find is outweighed by the projected economic impacts, although they are low. For Units 7, 9, and 19, this finding is consistent with our conclusions in the proposed rule, which includes addition discussion regarding exclusion of these particular areas.
Based on the results of the CHRT's reassessment of relative conservation value, three additional habitat units now fall into this low conservation value category for the MX DPS—Unit 4 (Central Peninsula Area), Unit 6 (Cook Inlet Area), and Unit 10 (Southeast Alaska). Each of these three areas, all of which are located in waters off Alaska, were rated as medium conservation value based on the CHRT's initial assessment leading to the proposed rule. As noted previously, and as presented in detail in the Final Biological Report and Summary of Changes (see also response to Comment 30), we revised the datasets applied by the CHRT during their reassessment of relative conservation value and placed greater emphasis on the degree to which whales of each specific DPS are relying on each area for feeding. Each of these three areas has low documented occurrences and/or low predicted occurrences of MX DPS, and two of these areas (Units 4 and 6) do not include a feeding BIA. Unit 10 (Southeast Alaska), however, contains a large BIA and supports feeding by a large number of humpback whales, which influenced the CHRT's initial assessment. The CHRT's reassessment placed less weight on presence of the BIA, and placed greater emphasis on the data indicating that the large majority of whales using this BIA are from the non-listed Hawaiian population, while only a small percentage of MX DPS whales use or are predicted to use this general area (Barlow
Based on the best available data and the revised analyses, for each of these three, additional low conservation value areas (Units 4, 6, and 10) and the other three low conservation value areas (Units 7, 9, and 19), we conclude that the benefits of designating the area are outweighed by the estimated economic impacts associated with their designation. Given the large area included in the designation, the documented distribution of MX DPS whales, and the current status of this threatened DPS, we also conclude that exclusion of the low conservation value areas from critical habitat will not result in extinction of the MX DPS. Therefore, we are excluding the following six areas from the final critical habitat designation for the MX DPS: Unit 4—Central Peninsula Area, Unit 6—Cook Inlet Area, Unit 7—Kenai Peninsula Area, Unit 9—Northeastern Gulf of Alaska, Unit 10—Southeast Alaska, and Unit 19—California South Coast.
Based on the CHRT's reassessment of relative conservation values of the specific areas for the MX DPS, Unit 1 (Bristol Bay Area) was rated as being “data deficient.” As discussed previously for the WNP DPS, the basis for this outcome was the revision to the data and approach used by the CHRT in their reassessment of the relative conservation value of each specific area, which is discussed in more detail in the Final Biological Report (NMFS 2020a). In particular, while the available data indicate the eastern Bering Sea is part of the occupied range of MX DPS whales, this area was not sampled during the SPLASH study, and no other photo-identification data are available to determine relative use of this particular area by whales from this DPS (versus other humpback whales). Although this area had previously been assigned a rating of high conservation value for the MX DPS (based largely on the extrapolation of results of Wade (2017) to this area and the presence of a BIA), ultimately, the majority of the CHRT concluded that, based on the very limited data, the extent to which MX DPS whales are relying on this area for feeding could not be reliably assessed. After considering the outcome of the CHRT's assessment and the available information regarding the documented distribution of MX DPS whales as summarized in the Final Biological Report, we conclude that the conservation benefit of designating Unit 1 for the MX DPS is outweighed by the economic impact of designating this area, although low (annualized impact of $2,300). Given the available data indicating that MX DPS whales primarily use other feeding areas and the status of this DPS as threatened rather than endangered, we also conclude that exclusion of this particular area will not result in extinction of this DPS. Therefore, the final critical habitat designation for the MX DPS does not include Unit 1—Bristol Bay Area. As noted previously, the CHRT recommended that future research effort be directed at improving our understanding of this potentially important habitat for humpback whales generally and for ESA-listed humpback whales in particular.
Based on the written information provided by the Navy in December 2018 and information provided through subsequent discussions with Navy representatives, we evaluated whether there was a reasonably specific justification indicating that designating certain areas as critical habitat would have a probable incremental impact on national security. In accordance with our 4(b)(2) Policy (81 FR 7226, 7231 February 11, 2016), in instances where the Navy provided a reasonably specific justification, we deferred to their expert judgement as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected by the critical habitat designation. In conducting a review of these exclusion requests under section 4(b)(2) of the ESA, we also gave great weight to the Navy's national-security concerns. To weigh the national security impacts against conservation benefits of a potential critical habitat designation, we also considered the following: (1) The size of the requested exclusion and the percentage of the specific critical habitat area(s) that overlaps with the Navy area; (2) the relative conservation value of the specific area for each particular humpback whale DPS; (3) the likelihood that the Navy's activities would destroy or adversely modify critical habitat, and the likelihood that NMFS would require project modifications to reduce or avoid these impacts; and (4) the likelihood that other Federal actions may occur in the
After considering the information provided by the Navy regarding potential impacts on national security stemming from the designation of a portion of Unit 11 as critical habitat, we found that the Navy had provided a reasonably specific justification for their requested exclusion of the area overlapping with the QRS as well the 10-km buffer surrounding the QRS. The requested exclusion comprises about 44 percent of the area of Unit 11, which was rated as having a medium conservation value for the CAM DPS and a medium conservation value for the MX DPS. The requested exclusion comprises a very small portion of the total critical habitat designations for the CAM DPS (about 3 percent) and the MX DPS (about 1.3 percent). To more precisely gauge the value of the specific QRS area (including the buffer) to the whales, we reviewed the overlap of the QRS with the location of the BIA and the predicted whale densities from Becker
Overall, in light of the Navy's substantial and specific concerns regarding the potential impact of a critical habitat designation on their unique testing and training activities that occur within the QRS and the potential delay in critical missions in order to complete adverse modification analyses, we determined that the benefits of excluding the QRS due to national security impacts outweighs the benefits of designating this portion of Unit 11 as critical habitat for the MX and CAM DPSs. Upon further review of the requested buffer exclusion, however, and as discussed previously (see response to Comment 40), we determined the benefit of excluding this area on the basis of a national security impact does not outweigh the benefit of designating critical habitat in a portion of the 10-km buffer extending from the northeast corner of the QRS where it overlaps with the OCNMS. The Navy does not currently use or currently plan to use explosives in the northeast corner of the QRS; therefore, potential impacts to the humpback whale critical habitat are unlikely to extend into the OCNMS. The Navy provided additional information to NMFS clarifying the impact to national security should the full 10-km buffer around the QRS not be excluded from designation as critical habitat. The Navy noted that the current limitation on conducting underwater explosives in this portion of the QRS is based on mitigation measures the Navy proposed in its NWTT SEIS (September 2020) and associated ESA and MMPA compliance documentation, which preclude the use of all underwater explosives for training and testing within 50 nmi from shore, with the exception of mine countermeasures neutralization activities, which occur in the QRS where it does not overlap with the OCNMS. Navy concluded it was practicable to implement this restriction; however, all Navy mitigation measures allow for deviations (in consultation with NMFS) if driven by new and immediate national security requirements. Further, the Navy reviews its mitigation measures annually and can modify those mitigation measures as driven by evolving military readiness requirements, also in consultation with NMFS. The Navy stated that because techniques and tactics needed for national security can rapidly evolve, it is possible that modifications to current activities and the development of new technologies will require testing in areas that may not be currently utilized for underwater explosives. Thus, we find that, while there are national security impacts as described by the Navy, benefits of excluding this area do not outweigh the conservation benefits of designating this particular area as critical habitat for both the MX and CAM DPSs. Given the small size of this particular area relative to the overall designations and the medium conservation value of this area for both DPSs, we conclude that excluding this area (
We considered the information provided by the Navy concerning potential impacts on national security stemming from the designation of Unit 19 as critical habitat, and found that the Navy had provided a reasonably specific justification for the requested exclusion. We considered the information provided by the Navy regarding the nature and types of training and testing activities that occur within SOCAL (
We find that designation of critical habitat for these DPSs of humpback whales is both determinable and prudent. For the reasons discussed in our proposed rule and the foregoing sections of this final rule, we determine the critical habitat for each DPS on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and other relevant impacts, as follows:
For the endangered WNP DPS of humpback whales, we designate approximately 59,411 nmi
For the endangered CAM DPS of humpback whales, we designate approximately 48,521 nmi
For the threated MX DPS of humpback whales, we designate 116,098 nmi
None of the designations in this rule include manmade structures (
Section 7(a)(2) of the ESA requires Federal agencies, including NMFS, to ensure that any action authorized, funded or carried out by the agency (agency action) is not likely to jeopardize the continued existence of any threatened or endangered species or destroy or adversely modify designated critical habitat. Federal agencies must consult with us on any proposed agency action that may affect the listed species or its critical habitat. During interagency consultation, we evaluate the agency action to determine whether the action may adversely affect listed species or critical habitat and, where there is likely to be an adverse effect, we issue our finding in a biological opinion. The potential effects of a proposed action may depend on, among other factors, the specific timing and location of the action relative to seasonal presence of essential features or seasonal use of critical habitat by the listed species for essential life history functions. While the requirement to consult on an action that may affect critical habitat applies regardless of the season, NMFS addresses the varying spatial and temporal considerations when evaluating the potential impacts of a proposed action during consultation using the best available scientific and commercial information. If we conclude in the biological opinion that the agency action would likely result in the destruction or adverse modification of critical habitat, we would also recommend any reasonable and prudent alternatives to the action that would avoid destruction or adverse modification.
Reasonable and prudent alternatives are defined in 50 CFR 402.02 as alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the
Regulations at 50 CFR 402.16 require Federal agencies that have retained discretionary involvement or control over an action, or where such discretionary involvement or control is authorized by law, to reinitiate consultation on previously reviewed actions in instances where, among other situations: (1) New information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (2) the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion or written concurrence; or (3) a new species is listed or critical habitat designated that may be affected by the identified action (50 CFR 402.16(a)(2)-(4)). Consequently, some Federal agencies may request reinitiation of consultation with NMFS on actions for which formal consultation has been completed, if those actions may affect designated critical habitat for the WNP, CAM, or MX DPSs of humpback whales.
Activities subject to the ESA section 7 consultation process include activities on Federal lands, as well as activities requiring a permit or other authorization from a Federal agency (
ESA section 4(b)(8) requires, to the maximum extent practicable, in any final regulation to designate critical habitat, an evaluation and brief description of those activities (whether public or private) that may adversely modify such habitat or that may be affected by such designation. (The term “destruction or adverse modification” of critical habitat is defined in 50 CFR 402.02, and means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.) A wide variety of activities may affect the critical habitats and may be subject to the ESA section 7 consultation processes when carried out, funded, or authorized by a Federal agency. These include: (1) Federal fisheries, (2) oil and gas activities (including seismic surveys, and oil spill planning and response), (3) alternative energy development, (4) in-water construction (including dredging and offshore mining), (5) vessel traffic activities (largely, the establishment of the shipping lanes by the USCG, and maintenance and replacement of aids to navigation by the USCG), (6) aquaculture and hatcheries, (7) military activities, (8) LNG terminal activities, (9) space vehicle and missile launches, (10) water quality management and in-land activities (including pesticide registration, establishment of water quality standards, and Clean Water Act general permits), (11) U.S. Forest Service activities (related to timber and forest management), and (12) scientific research. Section 7 consultations must be based on the best scientific and commercial information available when they are undertaken, and outcomes are case-specific. Inclusion (or exclusion) from this list, therefore, does not predetermine the occurrence or outcome of any consultation.
Private or non-Federal entities may also be affected by the critical habitat designations if there is a Federal nexus in that, for example, a Federal permit is required, Federal funding is received, or the entity is involved in or receives benefits from a Federal project. These activities would need to be evaluated with respect to their potential to destroy or adversely modify humpback whale critical habitat.
The critical habitats for humpback whales do not include any manmade structures and the land on which they rest within the described boundaries that were in existence by the effective date of this rule. While these structures/areas would not be directly affected by designation, they may be affected if a Federal action associated with the structure/area (
For ongoing activities, these designations of critical habitat may trigger reinitiation of past consultations. Although we cannot predetermine the outcome of section 7 consultations, we do not anticipate at this time that the outcome of reinitiated consultations would likely require additional conservation measures, because effects to habitat and to humpback whale prey species would in most instances have been assessed in the original consultation. We are committed to working closely with other Federal agencies to conduct any reinitiated consultations in an efficient and streamlined manner to the maximum extent possible and consistent with our statutory and regulatory requirements.
A complete list of all references cited in this proposed rule can be found on our website (
We have determined that an environmental analysis as provided for under the National Environmental Policy Act of 1969 for critical habitat designations made pursuant to the ESA is not required. See
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
As discussed previously in this preamble and in our FRFA (see chapter 5 of IEc 2020), the designation of critical habitat is required under the ESA to the maximum extent prudent and determinable. This critical habitat rule does not directly apply to any particular entity, small or large. The rule will operate and have regulatory effect only in conjunction with ESA section 7(a)(2), which requires that Federal agencies ensure, in consultation with NMFS, that any action they authorize, fund, or carry out is not likely to jeopardize the
This rule does not duplicate or conflict with any other laws or regulations. However, the protection of listed species and designated critical habitat may overlap with other sections of the ESA. The protections afforded to threatened and endangered species and their habitat are described in sections 7, 9, and 10 of the ESA. This final determination to designate critical habitat requires Federal agencies to consult, pursuant to section 7 of the ESA, with NMFS on any activities the Federal agency funds, authorizes, or carries out, including permitting, approving, or funding non-Federal activities (
During consultation under the ESA, there may be communication among NMFS, the Federal action agency, and a third party participant applying for Federal funding or permitting in an effort to minimize potential adverse impacts to the habitat or essential feature. Communication may include written letters, phone calls, and/or meetings. Project variables such as the type of consultation, the location of the activity, impacted essential features, and activity of concern, may in turn dictate the complexity of these interactions. Third party costs may include administrative work, such as cost of time and materials to prepare for letters, calls, or meetings. The cost of analyses related to the activity and associated reports may be included in these administrative costs. In addition, after the section 7 consultation process, as a requirement of the funding or permit received from the Federal action agency, entities may be required to monitor progress during the activity to ensure that impacts to the habitat and features have been minimized. The rule does not directly mandate “reporting” or “record keeping” within the meaning of the Paperwork Reduction Act (PRA). The rule does not impose record keeping or reporting requirements on small entities.
With the exception of in-water and coastal construction and aquaculture activities (which we discuss in the next paragraph), all other categories of Federal activities addressed in the FEA (
As described in Chapter 3 of the FEA, approximately eight consultations per year are expected to focus on in-water and coastal construction activities. The majority of these (six per year) are concentrated within critical habitat Unit 10 in Alaska. As such, the analysis focused on the small in-water construction businesses and government jurisdictions in the region surrounding critical habitat Unit 10, which was ultimately excluded from the critical habitat designation. Additionally, the analysis estimates that 12 aquaculture consultations per year are distributed across the critical habitat units in Alaska, with six occurring in Unit 10, and six each occurring in southcentral (Units 6-9) and southwestern Alaska (Units 1-5), respectively. Because Unit 10 is excluded from the designation, we focus the discussion here on the aquaculture activities.
Small entities that may bear the impacts of this final rule include private businesses and small governmental jurisdictions. Relevant businesses in North American Industry Classification System (NAICS) most likely engaged in aquaculture activities include Shellfish Farming and Other Aquaculture. The FRFA identified 25 small government jurisdictions (
The FRFA estimates that up to 12 small aquaculture businesses per year may bear costs associated with participation in consultations regarding humpback whale critical habitat. The total annualized administrative costs that may be borne by these small entities engaged in aquaculture activities is $5,300 (discounted at seven percent), half of which would be incurred in Unit 10. This estimate represents the third-party applicant costs associated with 12 informal consultations. The Alaska Mariculture Development Plan states that sales across all aquatic farm operations totaled $1.23 million in 2016. These revenues were spread across 29 different operations, for an average annual revenue of $42,000 per aquatic farm. If the annualized administrative costs of consultation were spread across 12 unique businesses ($440 per business), the costs to each business would represent approximately one percent of average annual revenues. Given available data, the analysis finds there is potential for a substantial number of businesses to be significantly impacted by this rule if all areas under consideration were designated. However, as discussed in chapter 5 of the FEA, the estimate of annual revenues used in the analysis is highly uncertain and likely substantially understated. As a result, and given the exclusion of Unit 10 from the final designation, this outcome is unlikely.
The RFA, as amended by SBREFA, requires us to consider alternatives to the proposed regulation that will reduce the impacts to small entities. We considered two alternatives. First, we considered proposing to designate all areas meeting the ESA section 3 definition of critical habitat. However, following our consideration of probable national security, economic, and other relevant impacts of designating all the specific areas, we rejected this alternative because we elected to exclude multiple areas based on a determination that the benefits of
Under section 307(c)(1)(A) of the Coastal Zone Management Act (CZMA) (16 U.S.C. 1456(c)(1)(A)) and its implementing regulations, each Federal activity within or outside the coastal zone that has reasonably foreseeable effects on any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State coastal management programs. We have determined that the designation of critical habitat designation for the CAM and MX DPSs of humpback whales is consistent to the maximum extent practicable with the enforceable policies of the approved Coastal Zone Management Programs of Washington, Oregon, and California. This determination was submitted to the responsible agencies in the aforementioned states for review, and we subsequently received concurrence from each of the three state agencies.
By operation of Alaska State law, the federally approved Alaska Coastal Management Program expired on July 1, 2011, resulting in a withdrawal from participation in the CZMA's National Coastal Management Program (76 FR 39857, July 7, 2011). The CZMA Federal consistency provision, section 307, no longer applies in Alaska.
The purpose of the Paperwork Reduction Act is to minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, and other persons resulting from the collection of information by or for the Federal government. This rule does not contain any new or revised collection of information. This rule does not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations.
The designation of critical habitat does not impose an “enforceable duty” on state, local, tribal governments, or the private sector and therefore does not qualify as a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an “enforceable duty” upon non-Federal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.”
This rule will not produce a Federal mandate. The designation of critical habitat does not impose an enforceable or legally-binding duty on non-Federal government entities or private parties. The only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7 of the ESA. Non-Federal entities that receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, but the Federal agency has the legally binding duty to avoid destruction or adverse modification of critical habitat. We do not find that this rule will significantly or uniquely affect small governments because it is not likely to produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. In addition, the designation of critical habitat imposes no obligations on local, state or tribal governments. Therefore, a Small Government Agency Plan is not required.
The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and co-management agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Executive Order 13175 on Consultation and Coordination with Indian Tribal Governments outlines the responsibilities of the Federal Government in matters affecting tribal interests. Section 161 of Public Law 108-199 (188 Stat. 452), as amended by section 518 of Public Law 108-447 (118 Stat. 3267), directs all Federal agencies to consult with Alaska Native corporations on the same basis as Indian tribes under E.O. 13175.
None of the critical habitats were identified as occurring on Indian lands. However, the critical habitats overlap with areas used by Indian tribes and Alaska Natives for subsistence, cultural, usual and accustomed fishing, or other purposes. The designations of critical habitat for humpback whales has the potential to affect tribal trust resources, particularly in relation to harvest of fish species that have been identified as important humpback whale prey (
Under E.O. 12630, Federal agencies must consider the effects of their actions on constitutionally protected private
OMB has determined that this rule is significant for purposes of E.O. 12866 review. An economic analysis (the FEA, IEc 2020) and Final ESA Section 4(b)(2) Report (NMFS 2020b) have been prepared to support the exclusion process under section 4(b)(2) of the ESA and our consideration of alternatives to this rulemaking as required under E.O. 12866. To view these documents, see the
Based on the FEA, the total estimated present value of the quantifiable incremental impacts of the critical habitat designations at a 7 percent discount rate are approximately $640,000-$680,000 over the next 10 years (2020-2029) and $740,000-$780,000 at a 3 percent discount rate. Assuming a 7 percent discount rate on an annualized basis, the impacts are estimated to be $73,000-$78,000 per year or $84,000-$89,000 per year at a 3 percent discount rate. These total impacts include the additional administrative efforts necessary to consider critical habitat in section 7 consultations. Overall, economic impacts are expected to be small and to be largely associated with the administrative costs borne by Federal agencies.
Beyond the potential for critical habitat to trigger additional conservation efforts as part of section 7 consultations, critical habitat may indirectly affect conservation behaviors in ways that generate both opportunity costs and conservation benefits. For example, critical habitat provides notice to other Federal agencies of areas and features important to species conservation; provides information about the types of activities that may reduce the conservation value of the habitat; and may stimulate research, voluntary conservation actions, and outreach and education activities. To the extent that this information causes agencies, organizations, or individuals to change their behavior for the benefit of humpback whales, these changes would be beneficial to the whales and would be considered benefits of this rulemaking. These changes in behavior could also trigger opportunity costs, for example due to the time or money spent to reduce the risk of negatively affecting the species or its habitat. Insufficient data are available to monetize these impacts (see the FEA, IEc 2020).
Based on the FEA, the total estimated present value of the quantified incremental impacts of the critical habitat designation for the WNP DPS are approximately $186,000-$213,000 over the next 10 years. Assuming a 7 percent discount rate on an annualized basis, the impacts are estimated to be $21,200-$24,300 per year. These total impacts include the additional administrative efforts necessary to consider critical habitat in section 7 consultations. These impacts are also not additive with those associated with the MX DPS, as the areas designated for the WNP DPS are entirely overlapping with areas being designated for the MX DPS. Overall, economic impacts are expected to be small and to be largely associated with the administrative costs borne by Federal agencies. While there are expected beneficial economic impacts of designating critical habitat for the WNP DPS, insufficient data are available to monetize those impacts (see Analysis of the Benefits of Designation section).
Based on the FEA, the total estimated present value of the quantified incremental impacts of the critical habitat designation for the CAM DPS are approximately $416,000-$430,000 over the next 10 years. Assuming a 7 percent discount rate on an annualized basis, the impacts are estimated to be $47,500-$48,500 per year. These total impacts include the additional administrative efforts necessary to consider critical habitat in section 7 consultations. These impacts are also not additive with those associated with the MX DPS, as the areas designated for the CAM DPS are entirely overlapping with areas being designated for the MX DPS. Overall, economic impacts are expected to be small and to be largely associated with the administrative costs borne by Federal agencies. While there are expected beneficial economic impacts of designating critical habitat for the CAM DPS, insufficient data are available to monetize those impacts (see Analysis of the Benefits of Designation section).
Based on the FEA, the total estimated present value of the quantified incremental impacts of the critical habitat designation for the MX DPS are approximately $642,000-$683,000 over the next 10 years. Assuming a 7 percent discount rate on an annualized basis, the impacts are estimated to be $73,300-$77,400 per year. These total impacts include the additional administrative efforts necessary to consider critical habitat in section 7 consultations. Overall, economic impacts are expected to be small and to be largely associated with the administrative costs borne by Federal agencies. These impacts are also not additive with those associated with the WNP and CAM DPSs, as the areas designated for the MX DPS are almost entirely overlapping with areas being designated for another DPS. Because the designation for the MX DPS extends over all other areas being designated as critical habitat for the other two DPSs, the estimated economic impacts associated with the designation for the MX DPS represent the total estimated impacts across all DPSs. As with the other DPSs, there are expected beneficial economic impacts of designating critical habitat for the MX DPS; however, insufficient data are available to monetize those impacts (see Analysis of the Benefits of Designation section).
Executive Order 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific consultation directives for situations in which a regulation may preempt state law or impose substantial direct compliance costs on state and local governments (unless required by statute). Pursuant to E.O. 13132, we determined that this rule does not have significant federalism effects and that a federalism assessment is not required. The designation of critical habitat directly affects only the responsibilities of Federal agencies. As a result, this rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the order.
State or local governments may be indirectly affected by the critical habitat designations if they require Federal funds or formal approval or authorization from a Federal agency as a prerequisite to conducting an action. In these cases, the State or local government agency may participate in the section 7 consultation as a third party. One of the key conclusions of the economic impacts analysis is that the incremental impacts of the designations will likely be limited to additional administrative costs to NMFS, Federal agencies, and to third parties stemming from the need to consider impacts to
E.O. 13211 requires agencies to prepare a Statement of Energy Effects when undertaking a significant energy action. Under E.O. 13211, a significant energy action means any action by an agency that is expected to lead to the promulgation of a final rule or regulation that is a significant regulatory action under E.O. 12866 and is likely to have a significant adverse effect on the supply, distribution, or use of energy. We have considered the potential impacts of this action on the supply, distribution, or use of energy and find that the designations of critical habitat for humpback whales are not likely to have impacts that exceed the thresholds identified in OMB's memorandum M-01-27, Guidance for Implementing E.O. 13211. Thus, these designations are unlikely to have a significant adverse effect within the meaning of the executive order. The energy impacts analysis is presented in chapter 5 of the FEA (IEc 2020).
Endangered and threatened species, Exports, Imports, Transportation.
Endangered and threatened species, Exports, Imports, Transportation.
Endangered and threatened species.
For the reasons set out in the preamble, 50 CFR parts 223, 224, and 226 are amended as follows:
16 U.S.C. 1531 1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361
(e) * * *
16 U.S.C. 1531-1543 and 16 U.S.C. 1361
(h) * * *
16 U.S.C. 1533.
Critical habitat is designated for the Central America, Mexico, and Western North Pacific humpback whale DPSs as described in this section. The maps in paragraph (h) of this section, and as clarified by the textual descriptions in this section, are the definitive sources for determining the critical habitat boundaries.
(a)
(b)
(1)
(2)
(3)
(c)
(1)
(2)
(3)
(4)
(d)
(1)
(2) [Reserved]
(e)
(f)
(1)
(2)
(3)
(g)
(1) Pursuant to the Endangered Species Act (ESA) section 4(a)(3)(B), all areas subject to the Naval Base Ventura County, Point Mugu, CA, and the Naval Outlying Field, San Nicolas Island, CA, approved Integrated Natural Resource Management Plans (INRMPs); and
(2) Pursuant to ESA section 4(b)(2), the Quinault Range Site (QRS) with an additional 10-km buffer that extends along the southern edge of the QRS and along the northern edge of the QRS except in areas past 10-km into the Olympic Coast National Marine Sanctuary.
(h)
(2) Overview map of critical habitat for the Central America DPS of humpback whales:
(3) Overview map of critical habitat for the Mexico DPS of humpback whales:
(4) Overview map of critical habitat for the Western North Pacific DPS of humpback whales: