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Animal and Plant Health Inspection Service, Department of Agriculture (USDA).
Final rulemaking action; notification of decision to import.
We are advising the public of our decision to authorize the importation into the continental United States of fresh pummelo fruit from Thailand. Based on the findings of a pest risk analysis, which we made available to the public for review and comment, we have determined that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of fresh pummelo fruit from Thailand.
The articles covered by this notification may be authorized for importation after November 10, 2021.
Ms. Claudia A. Ferguson, M.S., Senior Regulatory Policy Coordinator, Imports, Regulations, and Manuals, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1236; (301) 851-2352.
Under the regulations in “Subpart L-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-12, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests.
On March 29, 2018, we published in the
We solicited comments concerning our proposal for 60 days ending May 29, 2018. We received seven comments by that date. They were from producers, industry groups, private citizens, and a State department of agriculture. They are discussed below by topic.
We prepared a pest risk assessment and a risk management document (RMD) in connection with our proposal. Based on the findings of the pest risk assessment, we determined that measures beyond standard port of entry inspection would be required to mitigate the risks posed by these pests. These measures are identified in the RMD and were used as the basis for the requirements included in the proposed rule.
One commenter, from the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, stated that U.S. stakeholders from those areas potentially affected by any pest or disease outbreak from imported commodities should be invited to participate in site visits prior to the issuance of any proposals such as the one finalized by this document.
APHIS is committed to a transparent process and an inclusive role for stakeholders in our risk analysis process. However, since this comment relates to the structure of APHIS' overall risk analysis process, and not to the importation of fresh pummelo fruit from Thailand, it is outside the scope of the current action.
The same commenter observed that the pest risk assessment as a whole is based upon the assumption that the required post-harvest irradiation treatment may occur either in Thailand or upon arrival in the United States. The commenter went on to point out an inconsistency in the way in which we assessed the phytosanitary risk associated with Tephritidae species (
We agree with the commenter's point and have updated the pest risk assessment to reflect the risk presented by pests potentially surviving transport and storage conditions of the consignment in the event that post-harvest irradiation treatment is not performed in Thailand. This change may be found on page 23 of the updated pest risk assessment.
We proposed to require that fresh pummelo fruit from Thailand be subject to a systems approach that includes irradiation treatment, packinghouse processing requirements, and port of entry inspection. We also proposed that the fruit be imported only in commercial consignments and be accompanied by a phytosanitary certificate issued by the national plant protection organization (NPPO) of Thailand. One commenter said that these measures are not 100 percent effective in preventing the entry of
We have determined, for the reasons described in the RMD that accompanied the proposed rule, that the measures specified in the RMD will effectively mitigate the risk associated with the importation of fresh pummelo fruit from Thailand. The commenters did not provide any evidence suggesting that the mitigations are not effective. Therefore, we are not taking the action requested by the commenters.
The pest risk assessment identified 21 actionable pests that could be introduced into the United States in consignments of fresh pummelo fruit from Thailand. We provided a list of those pests in the proposed rule and its supporting documentation. One commenter said that the proposed rule did not mention invasive species, focusing only on actionable pests. The commenter argued that we should provide a full list of potentially invasive species associated with this action. Another commenter argued that the pest risk assessment we prepared was too narrow in scope, and should take into account the potential adverse effects of actionable pests on all known and potential hosts of those pests.
The term “actionable pest” includes those species known to be invasive, but also includes a larger group of pests since a species does not have to be recognized as invasive in order to cause harm. Actionable pests include quarantine pests, regulated non-quarantine pests, pests considered for or under official control, and pests that require evaluation for regulatory action. The wider scope described by the second commenter was therefore built into the pest risk assessment and RMD. Actionable pests in this case are those known to be associated with fresh pummelo fruit and present in Thailand.
Fresh pummelo fruit from Thailand will be required to be treated with a minimum absorbed irradiation dose of 400 Gy in accordance with § 305.9 of the phytosanitary treatment regulations in 7 CFR part 305. This is the established generic dose for all insect pests except pupae and adults of the order Lepidoptera. A commenter cited the presence of three Lepidopteran pests (
The systems approach includes other phytosanitary procedures designed to provide protection from pests against which irradiation is not effective. In addition, irradiation in conjunction with other mitigations against Lepidopteran pests can provide phytosanitary protection since it is lethal to larvae, tends to prevent normal adult emergence from the pupal stage, and causes sterility in pupae and emerged adults.
Two commenters requested assurance that actionable pests will not be introduced into the United States in connection with the pallets used in the shipment of fresh pummelo fruit from Thailand or via transshipment through countries not included in the pest risk assessment and RMD.
Wood packaging material, including pallets, used for the importation of commodities is governed by the regulations in 7 CFR 319.40-3(b), which stipulates treatment and marking. For the reasons explained in the proposed rule, the RMD, and this document, we consider the required provisions adequate to mitigate the risk associated with the importation of fresh pummelo fruit from Thailand. The commenters did not provide any evidence suggesting that the mitigations are individually or collectively ineffective. Failure to adhere to program standards, including packaging transshipped fruits, may result in removal from the export program.
One commenter observed that fresh pummelo fruit imported into Canada is currently not allowed to enter the United States for phytosanitary reasons and questioned the wisdom of allowing the fruit to directly enter the United States.
Each country determines its own importation requirements based on a number of factors, including factors particular to that country. While there may be some similarities in each country's phytosanitary approach, the requirements are not always identical. The requirements established by this document are country- and commodity-specific for the importation of fresh pummelo fruit from Thailand into the continental United States.
One commenter expressed concern that recent APHIS trade and policy efforts have tended to favor facilitating import access to the U.S. market.
APHIS' phytosanitary evaluation process only begins once a country's NPPO has submitted a formal request for market access for a particular commodity. APHIS does not solicit such requests, nor do we control which countries submit requests. APHIS' primary responsibility with regard to international import trade is to identify and manage the phytosanitary risks associated with importing commodities. When we determine that the risk associated with the importation of a commodity can be successfully mitigated, as is the case regarding the importation of fresh pummelo fruit from Thailand, it is our responsibility under the trade agreements to which we are a signatory, such as the World Trade Organization's Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), to provide for the importation of that commodity.
Another commenter said that allowing for the importation of fresh pummelo fruit from Thailand may not produce a positive effect on the U.S. economy or domestic producers. Two commenters stated that there is a sufficient domestically produced supply of fresh pummelo fruit to meet current market demand and hypothesized that the lower cost of imported fresh pummelo fruit would serve to harm domestic producers.
APHIS' statutory authority allows us to prohibit the importation of a fruit or vegetable into the United States only if we determine that the prohibition is necessary in order to prevent the introduction or dissemination of a plant pest or noxious weed within the United States. As a signatory to the SPS Agreement, the United States has agreed to base its decisionmaking process on evaluation and mitigation of phytosanitary risk and not on the economic and trade factors referenced by the commenter. As we discuss later in this document, however, available data does not suggest that fresh pummelo fruit from Thailand will be imported at a lower cost than domestic production.
Two commenters objected to our requirement that the fresh pummelo fruit originate from commercial farms and stated that such a requirement would effectively exclude the majority of farmers in Thailand while encouraging the development of large scale, monoculture farms. One of the commenters cited a USDA requirement of $350,000 net income as the minimum amount needed for classification as a commercial farm.
We proposed to allow only commercial consignments of fresh pummelo fruit from Thailand to be
One commenter stated that Federal and State resources intended to protect domestic agriculture production have not kept pace with the growing volume of fruit and vegetable imports, placing strain on the system.
APHIS has reviewed its resources and consulted with U.S. Customs and Border Protection and believes there is adequate coverage across the United States to ensure compliance with APHIS regulations, including the importation of pummelo from Thailand, as established by this action. The commenter did not provide any evidence of shortfalls in State resources that would prevent APHIS from carrying out the provisions of this action.
A commenter said that the economic analysis that accompanied the proposed rule did not reflect the potential financial impacts of pummelo producers in Florida. The commenter said that allowing for the importation of fresh pummelo fruit from Thailand at the same time of year that domestic fruit comes to market would result in negative economic impacts for Florida growers.
The commenter cited the importation of fresh pummelo fruit from Southeast Asia into Canada as an example of what may happen to the U.S. fresh pummelo market, stating that imported fruit in Canada has been marketed at a price far lower than U.S. domestic growers can achieve. The commenter predicted that the price of fresh pummelo fruit in the Canadian market is an indicator of future U.S. prices for imported pummelos and consequently greatly harm domestic growers.
While our trade decisions are made based on science rather than economic factors, we note that we stated in the economic analysis that accompanied the proposed rule that information on pummelo production in Arizona, Florida, and Texas was not available. In addition, U.S. import and export data specific to pummelo are also not available because pummelo is grouped with grapefruit in Department of Commerce trade statistics (Harmonized Tariff Schedule 080540). As always, APHIS welcomes informed comment on the size and scope of any industry for which we do not have data.
In response to the commenter's concerns, we examined the market for fresh pummelo fruit in Canada and determined that Canada imported an average of 36,379 metric tons per year during the period 2017 through 2020. Of this, 44 percent originated in the United States, and 0.003 percent (or 124 metric tons) originated from Thailand. During that period, the average price Canadian importers paid overall for fresh pummelo fruit was $990 per metric ton, the average price Canadian importers paid for fresh pummelo fruit from the United States was $989 per metric ton, and the average price Canadian importers paid for fresh pummelo fruit from Thailand was $2,030 per metric ton. Based on this data, we do not agree with the commenter's claim that U.S. pummelo fruit is at a competitive price disadvantage in the Canadian market in relation to imported fresh pummelo fruit from Thailand. Our available Canadian data suggests Thailand's share of the domestic pummelo market within the United States will be minimal, compared to domestic production, and Thailand will not be able to market the fruit at a price point below that of domestic producers.
Finally, we note that the proposed rule was issued prior to the October 15, 2018, effective date of a final rule
Therefore, in accordance with the regulations in § 319.56-4(c)(3)(iii), we are announcing our decision to authorize the importation into the continental United States of fresh pummelo fruit from Thailand subject to the following phytosanitary measures, which will be listed in FAVIR, available at
• The fresh pummelo fruit must be shipped in commercial consignments only.
• The fresh pummelo fruit must be treated with irradiation in accordance with 7 CFR part 305.
• Prior to packing, the fresh pummelo fruit must be washed, brushed, disinfested, submerged in surfactant, treated for
• Each shipment of fresh pummelo fruit must be accompanied by a phytosanitary certificate issued by the NPPO of Thailand. If the fresh pummelo fruit was irradiated in Thailand, each consignment of fruit must be inspected jointly in Thailand by APHIS and the NPPO of Thailand, and the phytosanitary certificate must contain an additional declaration attesting to irradiation of the fresh pummelo fruit in accordance with 7 CFR part 305. If the fresh pummelo fruit will be irradiated upon arrival into the continental United States, joint inspection in Thailand and an additional declaration on the phytosanitary certificate are not required.
• Consignments of fresh pummelo fruit from Thailand are subject to inspection at ports of entry in the continental United States.
In addition to these specific measures, fresh pummelo fruit from Thailand will be subject to the general requirements listed in § 319.56-3 that are applicable to the importation of all fruits and vegetables.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this action, please contact Mr. Joseph Moxey, APHIS' Paperwork Reduction Act Specialist, at (301) 851-2483.
Pursuant to the Congressional Review Act (5 U.S.C. 801
7 U.S.C. 1633, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Bureau of Consumer Financial Protection.
Advisory opinion.
The Bureau of Consumer Financial Protection (Bureau) is issuing this advisory opinion to highlight that a consumer reporting agency that uses inadequate matching procedures to match information to consumers, including name-only matching (
This advisory opinion is effective on November 10, 2021.
Brandy Hood, Courtney Jean, Kristin McPartland, Amanda Quester, or Pavneet Singh, Senior Counsels, Office of Regulations, at (202) 435-7700 or
The Bureau is issuing this advisory opinion through the procedures for its Advisory Opinions Policy.
Accuracy in consumer reports is of vital importance to the consumer reporting system, particularly as consumer reports play an increasingly important role in the lives of American consumers. Consumer reporting agencies assemble and evaluate credit, public record, and other consumer information into consumer reports. The information in these reports is used by many different types of businesses, from creditors and insurers to landlords and employers, to make eligibility and other decisions about consumers. Creditors, for example, use information in consumer reports to determine whether, and on what terms, to extend credit to a particular consumer. The majority of landlords and employers use background screening reports to screen prospective tenants and employees.
Inaccurate information in consumer reports can have significant adverse impacts on consumers. These impacts are particularly concerning for prospective renters and job seekers struggling to recover from the impacts of the COVID-19 pandemic. Consumers with inaccurate information in their consumer reports may, for example, be denied credit or housing they would have otherwise received, or may be offered less attractive terms than they would have been offered if their information had been accurate. For example, an applicant whose tenant screening report shows past litigation or a poor rental payment history may find it difficult or more expensive to rent property.
The FCRA, enacted in 1970, regulates consumer reporting. The statute was designed to ensure that “consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information.”
Concerns about the accuracy of information included in consumer reports are long-standing. In 2003, Congress passed the Fair and Accurate Credit Transactions (FACT) Act, which, in addition to expanding the FCRA's substantive consumer protections, required the Federal Trade Commission (FTC) to conduct an ongoing study of consumer report accuracy and completeness.
The Bureau is especially concerned about the effects of these accuracy problems in light of the economic and public health impacts of COVID-19. Income shocks resulting from the pandemic, such as a job loss, reduced work hours, or the death or illness of a family member, have contributed to an increase in housing and financial insecurity for many households.
Consumer complaints received by the Bureau reflect significant consumer concern about inaccuracies in consumer reports. Complaints about “incorrect information on your report” have represented the largest percentage of consumer complaints received by the Bureau regarding credit or consumer reporting each year for at least the last five years.
Inaccuracies in consumer reports can in part be attributed to errors introduced by consumer reporting agencies during the “matching” process. When preparing a consumer report, a consumer reporting agency must assign or “match” information it obtains from a public data source or receives from a furnisher to the specific consumer who is the subject of the report. Each year, the Bureau receives many complaints from consumers arising from errors that likely occurred during the matching process. Some consumers who submit such complaints include narrative descriptions noting, among other things, their frustration at trying to get such errors corrected, as well as the negative consequences of such errors, such as not being able to complete planned purchases of homes or cars.
One method of matching, “name-only matching,” is particularly likely to lead to inaccuracies in consumer reports. Name-only matching occurs when a consumer reporting agency uses only first and last name to determine whether a particular item of information relates to a particular consumer, without using other personally identifying information such as address, date of birth, or Social Security number. Matching errors are particularly common when using name-only matching because many consumers have the same or similar names. For example, in the United States, the 2010 census (the most recent to have last name statistics available) found more than 2.4 million respondents with the last name of Smith, 1.9 million respondents with the last name of Johnson, 1.6 million respondents with the last name of Williams, and more than 1 million respondents each with the last name of Brown, Jones, Garcia, Miller, Davis, Rodriguez, Martinez, or Hernandez.
The risk of mismatching from name-only matching is likely to be greater for Hispanic, Asian, and Black individuals because there is less last-name diversity in those populations than among the non-Hispanic white population.
The Bureau, the FTC, and State attorneys general have brought enforcement actions in this area. In 2014, a background screening company settled FTC allegations that it violated FCRA section 607(b) by failing to use reasonable procedures to assure maximum possible accuracy of consumer report information when it provided employers background screening reports about job applicants that included, based on name-only matching, information about whether the applicants were registered in a National Sex Offender Registry.
In March 2015, the three nationwide consumer reporting agencies—Equifax, Experian, and TransUnion—launched the National Consumer Assistance Plan (NCAP), an initiative aimed at enhancing the accuracy of credit reports and making it easier for consumers to correct errors on their credit reports. The NCAP was the result of a settlement between the nationwide consumer reporting agencies and over thirty State Attorneys General that required the nationwide consumer reporting agencies to, among other things, form a working group to establish standards regarding the collection of public record data for consumer credit reports.
Courts have also spoken on this topic. For example, a decade ago, the Third Circuit in
Despite these enforcement actions, the steps taken by the nationwide consumer reporting agencies pursuant to the NCAP, and these court decisions, it appears that some consumer reporting agencies continue to use matching practices that do not satisfy the standard of “reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates,” as required by FCRA section 607(b). The NCLC stated in a 2019 report that some background screening companies are still relying on name-only matches.
The Bureau is issuing this advisory opinion to remind consumer reporting agencies that their matching practices must comply with their FCRA obligation to ”follow reasonable procedures to assure maximum possible accuracy” under section 607(b), and that the practice of name-only matching in particular is far from sufficient to meet that standard. Indeed, as illustrated by the foregoing discussion, multiple additional elements beyond names may often be required to meet the FCRA standard of “reasonable procedures to assure maximum possible accuracy.”
This advisory opinion applies to all consumer reporting agencies as defined in FCRA section 603(f).
FCRA section 607(b) provides that “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
Other provisions of the FCRA that directly relate to section 607(b) also support this interpretation. For example, section 603(d) of the FCRA defines “consumer report” to include certain communications “bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living” that are “used or expected to be used . . . for the purpose of . . . establishing the consumer's eligibility” for credit, employment, insurance, and other purposes.
The steps that a consumer reporting agency takes in matching information it obtains or receives to the correct consumer in preparing consumer reports are critical in assessing whether a consumer reporting agency is following “reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates” under FCRA section 607(b). As detailed in part I.A. above, matching information to the consumer who is the subject of a consumer report by name alone creates significant accuracy concerns because most names are shared with other consumers and, in some cases, with thousands of other consumers. In preparing consumer reports, it is not a reasonable procedure to assure maximum possible accuracy to use insufficient identifiers to match information to the consumer who is the subject of the report. In particular, it has been the consistent view of the Bureau that name-only matching is not a procedure that assures maximum possible accuracy, and thus, consumer reporting agencies that use name-only matching violate FCRA section 607(b).
Based on the high risk that name-only matching will result in the inclusion of information that does not pertain to the consumer who is the subject of the report and the relative lack of burden on a consumer reporting agency associated
In some cases, in preparing consumer reports, consumer reporting agencies may obtain information from a data broker, database, or other source that does not have or use identifying information other than consumers' names. It is not a reasonable procedure for the consumer reporting agency to simply include information from such sources in a consumer's report without taking additional steps to match the information to the consumer who is the subject of the report, such as consulting other databases or sources of information that contain additional identifying information.
This advisory opinion is an interpretive rule issued under the Bureau's authority to interpret the FCRA, including under section 1022(b)(1) of the Dodd-Frank Wall Street Reform and Consumer Protection Act,
As an interpretive rule, this advisory opinion is exempt from the notice-and-comment rulemaking requirements of the Administrative Procedure Act.
Pursuant to the Congressional Review Act,
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Technical amendments.
The Federal Aviation Administration is making technical amendments to the “Operation of Small Unmanned Aircraft Systems over People” final rule, which was published on January 15, 2021. The final rule document inadvertently misnumbered regulatory text and used inconsistent language to refer to a process.
Effective November 10, 2021.
Michael Machnik, General Aviation and Commercial Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW, 8th Floor, Washington, DC 20591; telephone 1-844-FLY-MYUA; email:
A copy of the notice of proposed rulemaking (NPRM) (84 FR 3856, February 13, 2019), all comments received, the final rule, and all background material may be viewed online at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing these technical amendments, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
Because this action merely makes technical amendments to a published final rule, the FAA finds that notice and public comment under 5 U.S.C. 553(b) is unnecessary. For the same reason, the FAA finds that good cause exists under 5 U.S.C. 553(d) for making this rule effective in less than 30 days.
On January 15, 2021, the “Operation of Small Unmanned Aircraft Systems Over People” final rule (RIN 2120-AK85) published in the
Aircraft, airmen, Aviation safety, Reporting and recordkeeping requirements.
Accordingly, the FAA corrects 14 CFR part 107 by making the following technical amendments:
49 U.S.C. 106(f), 40101 note, 40103(b), 44701(a)(5), 46105(c), 46110, 44807.
(a) * * *
(2) Is listed on an FAA-accepted declaration of compliance as eligible for Category 3 operations in accordance with § 107.160; and
Issued in Washington, DC, under the authority provided by 49 U.S.C. 106(f), 40101 note and 44807.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (“Commission” or “SEC”) is adopting amendments to the rule under the Investment Advisers Act of 1940 (“Advisers Act”) that permits investment advisers to charge performance-based compensation to “qualified clients.” The rule defines “qualified client” with reference to specific dollar amount thresholds, which are required to be adjusted every five years to account for the effects of inflation. These amendments replace specific dollar amount thresholds in the rule's “qualified client” definition with references to the Commission's “most recent order,” as defined by the amended rule, containing the specific dollar amount thresholds adjusted for inflation.
The amendments are effective on November 10, 2021.
Matthew Cook, Senior Counsel, at (202) 551-6787 or
The Commission is adopting amendments to 17 CFR 275.205-3 (rule 205-3) under the Advisers Act.
Section 205(a)(1) of the Advisers Act generally prohibits an investment adviser registered or required to be registered with the Commission from entering into, extending, renewing, or performing any investment advisory contract that provides for compensation to the adviser based on a share of capital gains on, or capital appreciation of, the funds of a client.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”)
Since then, the Commission has twice issued orders adjusting for the effects of inflation the dollar amount thresholds in accordance with rule 205-3(e). In 2016, the Commission issued an order increasing the dollar amount threshold of the net worth test (to $2,100,000) and maintaining the dollar amount threshold of the assets-under management test (at $1,000,000).
We are adopting amendments to rule 205-3 to replace the specific dollar amount thresholds in the rule's net worth and assets-under-management tests with references to the “most recent order” issued by the Commission containing the specific dollar amount thresholds adjusted for inflation. We define “most recent order” in the rule to mean “the most recently issued Commission order in accordance with paragraph (e) of this section and as published in the
As discussed above, the Commission is required to issue an order every five years adjusting for inflation the dollar amount thresholds of the assets-under-management and net worth tests of the rule. By amending the rule to refer to the “most recent order” for the dollar amount thresholds in the rule's “qualified client” tests, the rule will reference the most recently issued and published adjusted dollar amounts,
We are also adopting an amendment to rule 205-3 to update from “May 1, 2016” to “May 1, 2026” the reference point of a specific date in paragraph (e). Paragraph (e) currently provides that the dollar amount thresholds of the assets-under-management and net worth tests will be adjusted for inflation by Commission order “issued on or about May 1, 2016 and approximately every five years thereafter.”
Under the Administrative Procedure Act (“APA”), notice of proposed rulemaking is not required: (1) For interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice; or (2) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
The Commission is sensitive to the economic effects that could result from the amendments to rule 205-3. Investment advisers who charge, or may charge, performance fees and clients who meet, or may meet, the definition of “qualified client” in the rule could be affected by the amendments. As of August 2021, of the approximately 14,543 investment advisers registered with the Commission, 5,251 (36%)
We do not, however, expect that the amendments to rule 205-3 will result in substantial costs or benefits to these market participants. As described above, rule 205-3 currently references specific dollar amount thresholds in the rule's net worth and assets-under-management tests in paragraph (d)(1) and, separately, specifies that these thresholds will be adjusted for the effects of inflation by order of the Commission in paragraph (e). The amendments replace the specific dollar amount thresholds with references to the “most recent order” issued by the Commission containing the specific dollar amount thresholds adjusted for inflation, consistent with existing paragraph (e) of the rule. The amendments do not themselves change the dollar amount thresholds used in the definition, and, as a result, will not have any effect on the number of clients that meet the rule's definition of “qualified client.” Further, we do not believe the amendments will affect the number of advisers charging clients performance fees. The amendments also update the date from “May 1, 2016” to “May 1, 2026” in paragraph (e) to indicate when the next adjustment will occur, with future adjustments every five years thereafter, although this update does not reflect any change in process or timing from the existing rule.
The amendments to rule 205-3 could help investment advisers and clients more easily identify the current thresholds in the “qualified client” definition to the extent that the text of rule 205-3 is inconsistent with the most recent order issued by the Commission or to the extent that investment advisers and clients are unaware of such inconsistency. Relatedly, the updated date in paragraph (e) may help investment advisers and clients more easily determine approximately when the Commission will next issue an order and set expectations for future changes. These effects could incrementally reduce compliance costs; however, we do not expect any such reductions to be substantial.
Similarly, we do not expect any changes to efficiency, competition, or capital formation in the investment adviser industry as a result of the amendments to rule 205-3. While the amendments may make the identification of “qualified clients” incrementally easier by clarifying that the current thresholds in the “qualified client” definition may be found in the most recent order issued by the Commission, we do not believe that these changes will substantially affect an adviser's ability to identify “qualified clients” or raise capital from such clients.
The Commission is adopting amendments to rule 205-3 under the Advisers Act pursuant to the authority set forth in section 205(e) of the Investment Advisers Act of 1940 [15 U.S.C. 80b-5(e)].
Reporting and recordkeeping requirements, Securities.
For the reasons set out in the preamble, title 17, chapter II of the Code of Federal Regulations is amended as follows:
15 U.S.C. 80b-2(a)(11)(G), 80b-2(a)(11)(H), 80b-2(a)(17), 80b-3, 80b-4, 80b-4a, 80b-6(4), 80b-6a, and 80b-11, unless otherwise noted.
Section 275.205-3 is also issued under 15 U.S.C. 80b-5(e).
The revisions and addition read as follows:
(d) * * *
(1) * * *
(i) A natural person who, or a company that, immediately after entering into the contract has, under the management of the investment adviser, at least the applicable dollar amount specified in the most recent order;
(ii) * * *
(A) Has a net worth (together, in the case of a natural person, with assets held jointly with a spouse) of more than the applicable dollar amount specified in the most recent order. For purposes of calculating a natural person's net worth:
(5) The term
(e)
By the Commission.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) establishes the approximately 200-square mile “Verde Valley” viticultural area (AVA) in Yavapai County, Arizona. The Verde Valley viticultural area is not located within any other established viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.
This final rule is effective December 10, 2021.
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated the functions and duties in the administration and enforcement of these provisions to the TTB Administrator through Treasury Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003).
Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission to TTB of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:
• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.
TTB received a petition from the Verde Valley Wine Consortium, on behalf of local grape growers and winemakers, proposing the establishment of the “Verde Valley” AVA in Yavapai County, Arizona. The proposed Verde Valley AVA covers approximately 200 square miles and is not located within any other AVA. There are 24 commercially-producing vineyards covering a total of approximately 125 acres within the proposed AVA, as well as 11 wineries. The petition states that an additional 40 acres of vineyards are planned for planting in the next few years. According to the petition, the distinguishing features of the proposed Verde Valley AVA are its climate, soils, and topography.
The petition states that the proposed Verde Valley AVA has an average annual rainfall amount that is significantly lower than in the surrounding regions. Due to the low rainfall, vineyard owners within the proposed AVA must use irrigation to ensure adequate hydration for their vines. Additionally, temperatures within the proposed Verde Valley AVA are warmer than in each of the surrounding regions and provide suitable heat and sunlight for photosynthesis. The petition also states that the difference between daytime high temperatures and nighttime low temperatures within the proposed AVA can exceed 30 degrees F, which is a greater difference than found in any of the surrounding regions. Such a significant drop in nighttime temperatures delays grape ripening, lessens the respiration of acids, and increases phenolic development in the grapes.
According to the petition, the proposed Verde Valley AVA is composed of alluvial soils while the surrounding areas consist of stony soils. The high bicarbonate levels in the groundwater of the proposed AVA increase pH within the soil in the proposed AVA, which inhibits nutrient uptake in the vines. However, the petition states that these unfavorable vineyard conditions can be mitigated through rootstock, varietal, and clonal selection that can tolerate and even benefit from these nutrient deficiencies.
The petition also states that the proposed Verde Valley AVA consists of gentle slopes and elevations ranging between 3,000 feet and 5,000 feet. By contrast, the surrounding regions have steep slopes with elevations up to 8,000 feet. The lower elevation of the proposed AVA results in cold air drainage from the higher elevations of the surrounding areas and an increased risk of frost damage. Vineyard owners attempt to mitigate this risk by using inversion fans, protective sprays, and planting late-budding varietals of grapes.
TTB published Notice No. 187 in the
In response to Notice No. 187, TTB received a total of eight comments. Commenters included local residents, wine consumers, and other members of
TTB received one comment that supported the establishment of the proposed AVA, but the commenter suggested conducting an environmental and cultural evaluation to assess the impact of the proposed AVA on the surrounding area and its inhabitants. TTB's authority does not encompass evaluating the cultural impact of a proposed AVA on the surrounding regions and its inhabitants.
Further, an environmental impact statement under the National Environmental Policy Act (NEPA) is generally not required for regulations of a strictly administrative nature such as this rule establishing the Verde Valley AVA, as such actions normally do not have a significant effect on the human environment.
Another commenter did not oppose the establishment of the proposed AVA, but voiced concern that it would be difficult to grow grapes in an area prone to prolonged droughts. TTB recognizes the challenges posed by the unique characteristics of the proposed Verde Valley AVA. However, the petition provided evidence that commercial winegrape production does take place within the proposed AVA, which satisfies TTB's requirement for evidence of grape-growing in a proposed AVA. Additionally, the petition states that vineyard owners compensate for the low rainfall amounts by using water-conserving irrigation methods.
After careful review of the petition and the comments received in response to Notice No. 187, TTB finds that the evidence provided by the petitioner supports the establishment of the Verde Valley AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Verde Valley” AVA in Yavapai County, Arizona, effective 30 days from the publication date of this document.
See the narrative description of the boundary of the Verde Valley AVA in the regulatory text published at the end of this final rule.
The petitioner provided the required maps, and they are listed below in the regulatory text. The Verde Valley AVA boundary may also be viewed on the AVA Map Explorer on the TTB website, at
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
With the establishment of the Verde Valley AVA, its name, “Verde Valley,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulations clarifies this point. Consequently, wine bottlers using the name “Verde Valley” in a brand name, including a trademark, or in another label reference to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.
The establishment of the Verde Valley AVA will not affect any existing AVA. The establishment of the Verde Valley AVA will allow vintners to use “Verde Valley” as an appellation of origin for wines made primarily from grapes grown within the Verde Valley AVA if the wines meet the eligibility requirements for the appellation.
Bottlers who wish to label their wines with “Verde Valley” as an appellation of origin must obtain a new Certificate of Label Approval (COLA) for the label, even if the currently approved label already contains another appellation of origin. Please do not submit COLA requests to TTB before the date shown in the
TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.
Selina M. Ferguson of the Regulations and Rulings Division drafted this final rule.
Wine.
For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(a)
(b)
(1) Camp Verde, Ariz., 1969;
(2) Clarkdale, Ariz., 1973;
(3) Cornville, Ariz., 1968;
(4) Cottonwood, Ariz., 1973;
(5) Lake Montezuma, Ariz., 1969;
(6) Middle Verde, Ariz., 1969;
(7) Munds Draw, Ariz., 1973;
(8) Page Springs, Ariz., 1969; and
(9) Sedona, Ariz., 1969.
(c)
(1) The beginning point of the boundary is at the intersection of the 3,800-foot elevation contour and the northern boundary of Section 32, T17N/R3E, on the Clarkdale Quadrangle. From the beginning point, proceed east along the northern boundary of Section 32 until its intersection with the Verde River; then
(2) Proceed north along the Verde River to its intersection with the western boundary of Section 21, T17N/R3E; then
(3) Proceed north along the western boundaries of Sections 21 and 16 to the intersection with the 3,800-foot elevation contour; then
(4) Proceed southerly then easterly along the 3,800-foot elevation contour, crossing onto the Page Springs Quadrangle, to its intersection with Bill Gray Road in Section 18, T16N/R4E; then
(5) Proceed north along Bill Gray Road to its intersection with an unnamed, unimproved road known locally as Forest 761B Road in Section 32, T17N/R4E; then
(6) Proceed east, then northeast, along Forest 761B Road to its intersection with Red Canyon Road in Section 26, T17N/R4E; then
(7) Proceed south along Red Canyon Road to its intersection with U.S. Highway 89 Alt. in Section 35, T17N/R4E; then
(8) Proceed east over U.S. Highway 89 Alt. in a straight line to and unnamed, unimproved road known locally as Angel Valley Road, and proceed southeasterly along Angel Valley Road as it becomes a light-duty road, crossing over Oak Creek, and continuing along the southernmost segment of Angel Valley Road to its terminus at a structure on Deer Pass Ranch in Section 12, T16N/R4E; then
(9) Proceed south in a straight line to the 3,800-foot elevation contour in Section 12, T16/NR4E; then
(10) Proceed south-southeasterly along the 3,800-foot elevation contour, crossing over the southwestern corner of the Sedona Quadrangle and onto the Lake Montezuma Quadrangle, to the intersection of the contour line with an unnamed creek in Section 6, T15N/R5E; then
(11) Proceed southwesterly along the unnamed creek until its intersection with the 3,600-foot elevation contour in Section 1, T15N/R4E; then
(12) Proceed southerly along the 3,600-foor elevation contour, crossing briefly onto the Cornville Quadrangle and then back onto the Lake Montezuma Quadrangle, to the intersection of the elevation contour with an unnamed secondary highway known locally as Cornville Road in Section 7, T15N/R5E; then
(13) Proceed southeast along Cornville Road to its intersection with the 3,600-foot elevation contour in Section 20, T15N/R5 E; then
(14) Proceed easterly, then southerly, along the elevation contour to its intersection with the boundary of the Montezuma Castle National Monument in Section 36, T15N/R5E; then
(15) Proceed west, southeast, southwest, and then east along the boundary of the Montezuma Castle National Monument to its intersection with range line separating R5E and R6E; then
(16) Proceed south along the R5E/R6E range line, crossing onto the Camp Verde Quadrangle, to the intersection of the range line and the southeastern corner of Section 12, T14N/R5E; then
(17) Proceed west along the southern boundaries of Sections 12, 11, 10, and 9 to the intersection of the southern boundary of Section 9 and the Montezuma Castle National Monument; then
(18) Proceed along the boundary of the Montezuma Castle National Monument in a counterclockwise direction to the intersection of the monument boundary and the 3,300-foot elevation contour in Section 16, T14N/R5E; then
(19) Proceed southerly, then southeasterly, along the 3,300-foot elevation contour to its intersection with the eastern boundary of Section 18, T13N/R6E; then
(20) Proceed south along the eastern boundary of Section 18 to its intersection with the southern boundary of Section 18; then
(21) Proceed west along the southern boundaries of Sections 19, 13, 14, 15, 16, 17, and 18, T13N/R53, and Section 13, T13N/R4E, to the intersection with the 3,800-foot elevation contour in Section 13, T13N/R4E; then
(22) Proceed northwesterly along the 3,800-foot elevation contour, crossing over the Middle Verde and Cornville Quadrangles and onto the Cottonwood Quadrangle, to the intersection of the elevation contour with an unnamed creek in Del Monte Gulch in Section 5, T15N/R3E; then
(23) Proceed westerly along the unnamed creek to its intersection with the 5,000-foot elevation contour in Section 26, T16N/R2E; then
(24) Proceed northerly along the 5,000-foot elevation contour, crossing over the Clarkdale Quadrangle and onto the Munds Draw Quadrangle, to the intersection of the elevation contour with a pipeline in Section 4, T16N/R2E; then
(25) Proceed southeasterly along the pipeline, crossing onto the Clarkdale Quadrangle, and continuing northeasterly along the pipeline to its intersection with the 3,800-foot elevation contour in Section 32, T17N/R3E; then
(26) Proceed northerly along the 3,800-foot contour, returning to the beginning point.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) establishes the approximately 25,000-acre “Lower Long Tom” viticultural area in portions of Lane and Benton Counties, Oregon. The
This final rule is effective December 10, 2021.
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated the functions and duties in the administration and enforcement of these provisions to the TTB Administrator through Treasury Order 120-01.
Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission to TTB of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:
• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;
• If the proposed AVA is to be established within, or overlapping, an existing AVA, an explanation that both identifies the attributes of the proposed AVA that are consistent with the existing AVA and explains how the proposed AVA is sufficiently distinct from the existing AVA and therefore appropriate for separate recognition;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.
TTB received a petition from Dieter Boehm, owner of High Pass Vineyard and Winery, proposing the establishment of the “Lower Long Tom” AVA. The proposed AVA is located in portions of Lane and Benton Counties, Oregon, and lies entirely within the established Willamette Valley AVA (27 CFR 9.90) and does not overlap any other existing or proposed AVA. Within the approximately 25,000-acre proposed AVA, there are 22 commercial vineyards which cover a total of approximately 492 acres, as well as 10 wineries. The distinguishing features of the proposed Lower Long Tom AVA are its topography, soils, and climate.
The proposed Lower Long Tom AVA takes its name from the Long Tom River, which runs along the eastern boundary of the proposed AVA. The proposed AVA is located along the “lower,” or downstream, portion of the river, between Fern Ridge Lake and the Willamette River. The topography of the proposed AVA is characterized by chains of rolling hills separated by west-east trending valleys that were cut by the tributaries of the Long Tom River. Elevations range from approximately 1,000 feet along ridgelines on the western edge of the proposed AVA boundary to approximately 550 feet before dropping to the Willamette Valley floor. The steepest slope angles are about 45 percent, with the average slope angle being about 20 percent. To the west of the proposed Lower Long Tom AVA are the high, rugged elevations of the Coast Range, which rise to over 3,000 feet. East of the proposed AVA are the lower, flatter elevations of the Willamette Valley floor. South of the proposed AVA are Fern Ridge Lake, the watershed of the upper Long Tom River, and a series of hills with lower elevations than are found in the proposed AVA. To the north of the proposed AVA, the elevations descend to the floor of the Willamette Valley.
The most common soils in the proposed AVA are Bellpine and Bellpine/Jory complex. Bellpine soil is derived from decomposed sedimentary marine uplift over a sandstone or siltstone substrate. These soils are relatively shallow and well-drained. The Bellpine/Jory complex combines sedimentary and volcanic components and has a slightly greater depth and water-holding capacity than the Bellpine soils. Soils north of the proposed Lower Long Tom River AVA are primarily Jory soils. To the east of the proposed AVA, soils are described as deep alluvial river bottom soils. South of the proposed AVA, the soils are mostly Bellpine, as are found in the proposed AVA, but without the Bellpine/Jory complex. The predominate soils west of the proposed AVA are from the Witzel and Ritner series, which are both derived from decomposed igneous and contain varying amounts of rocks and cobbles.
Prairie Mountain, a tall mountain in the Coast Range due west of the proposed AVA, blocks cool Pacific air from entering the proposed Lower Long Tom AVA. Instead, the marine air flows into the regions to the north and south
TTB published Notice No. 197 in the
In Notice No. 197, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. In addition, given the proposed AVA's location within the Willamette Valley AVA, TTB solicited comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the established AVA. TTB also requested comments on whether the geographic features of the proposed AVA are so distinguishable from the established Willamette Valley AVA that the proposed AVA should no longer be part of the established AVA. The comment period closed December 22, 2020.
In response to Notice No. 197, TTB received one comment. The comment did not specifically support or oppose the proposed AVA. The comment stated that, although many agricultural lands provide necessary food crops for the community, wine grapes are not a necessity. The comment then expressed concern as to “who will bear the cost of preparing this land,” and “how this project will be funded.” Finally, the comment wondered if there were any other uses for the land that would “better serve the community” than growing wine grapes, and how the establishment of the AVA may “impact businesses and projects outside of alcohol producers.”
In response, TTB notes that establishment of an AVA for use on a wine label is simply intended to provide consumers with more information about the wine they purchase, including where the grapes used to make the wine were grown. The establishment of an AVA recognizes the existing natural features of a particular region (such as the climate, soil, topography, or geology) and how they differ from the natural features of the surrounding areas, and that wine grapes grown in that region face a different set of growing conditions than grapes grown elsewhere.
Further, TTB's establishment of an AVA only addresses the use of AVA names on labels, and does not convey any rules regarding land use within an AVA. Establishing an AVA does not require that the land in the AVA be used for any additional grape growing, require the land to be used only for grape growing, or require the land be prepared, modified, or used in any way. Also, TTB's establishment of an AVA does not require or provide funding for any projects within an AVA.
After careful review of the petition and the comment received in response to Notice No. 197, TTB finds that the evidence provided by the petitioner supports the establishment of the Lower Long Tom AVA. Accordingly, TTB establishes the “Lower Long Tom” AVA in portions of Lane and Benton Counties, Oregon, effective 30 days from the publication date of this document.
TTB has also determined that the Lower Long Tom AVA will remain part of the established Willamette Valley AVA. As discussed in Notice No. 197, the Lower Long Tom AVA shares some broad characteristics with the established AVA. For example, the Lower Long Tom AVA and the Willamette Valley AVA are generally under 1,000 feet. Additionally, both areas contain mostly silty and clay loam soils. However, the Lower Long Tom AVA does have some features that differentiate it from the Willamette Valley AVA. For instance, a chain of hills comprises most of the Lower Long Tom AVA, whereas a broad, treeless plain covers most of the Willamette Valley AVA. Additionally, because much of the cool marine air is diverted away from the AVA, growing season temperatures are generally warmer and harvest dates are generally earlier within the Lower Long Tom AVA than within other less-sheltered regions of the Willamette Valley.
See the narrative description of the boundary of the Lower Long Tom AVA in the regulatory text published at the end of this final rule.
The petitioners provided the required maps, and they are listed below in the regulatory text. The Lower Long Tom AVA boundary may also be viewed on the AVA Map Explorer on the TTB website, at
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
With the establishment of the Lower Long Tom AVA, its name, “Lower Long Tom,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulations clarifies this point. Consequently, wine bottlers using the name “Lower Long Tom” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.
The establishment of the Lower Long Tom AVA will not affect the existing Willamette Valley AVA, and any bottlers using “Willamette Valley” as an appellation of origin or in a brand name for wines made from grapes grown within the Willamette Valley will not be affected by the establishment of this
TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.
Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.
Wine.
For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(a)
(b)
(1) Cheshire, Oregon, 1984;
(2) Horton, Oregon, 1984;
(3) Glenbrook, Oregon, 1984; and
(4) Monroe, Oregon, 1991.
(c)
(1) The beginning point is on the Cheshire map at the intersection of Franklin Road and the 360-foot elevation contour in Section 43, T16S/R5W. From the beginning point, proceed west on Franklin Road to its intersection with Territorial Road (known locally as Territorial Highway); then
(2) Proceed southwesterly along Territorial Highway to its intersection with an unnamed, unimproved road north of Butler Road in Section 44, T16S/R5W; then
(3) Proceed west in a straight line to the western boundary of Section 29, T16S/R5W; then
(4) Proceed north along the western boundary of Section 29 to the southern boundary of Section 57, T16S/R5W; then
(5) Proceed northwest in a straight line to the right angle in the western boundary of Section 57, T16S/R5W; then
(6) Proceed west in a straight line, crossing through Sections 58 and 38, to the intersection of Sections 23, 24, 25, and 26, T16S/R6W; then
(7) Proceed north along the western boundary of Section 24 to the first intersection with the 800-foot elevation contour; then
(8) Proceed northerly, then northwesterly along the 800-foot elevation contour, crossing onto the Horton map, to the intersection of the 800-foot elevation contour and an unnamed, unimproved road with a marked 782-foot elevation point in Section 10, T16S/R6W; then
(9) Proceed west in a straight line to the 1,000-foot elevation contour; then
(10) Proceed northerly along the 1,000-foot elevation contour, crossing onto the Glenbrook map, to the elevation contour's third intersection with the Lane-Benton County line in Section 10, T15S/R6W; then
(11) Proceed east along the Lane-Benton County line, crossing onto the Monroe map, to the R6W/R5W range line; then
(12) Proceed north along the R6W/R5W range line to its intersection with Cherry Creek Road; then
(13) Proceed northeasterly along Cherry Creek Road to its intersection with Shafer Creek along the T14S/T15S township line; then
(14) Proceed northeasterly along Shafer Creek to its intersection with the 300-foot elevation contour; then
(15) Proceed easterly along the 300-foot elevation contour, crossing Territorial Highway, to the intersection of the elevation contour with the marked old railroad grade in Section 33/T14S/R5W; then
(16) Proceed south along the old railroad grade to its intersection with the southern boundary of Section 9, T15S/R5W; then
(17) Proceed west along the southern boundary of Section 9 to its intersection with Territorial Highway; then
(18) Proceed south along Territorial Highway to its intersection with the 360-foot elevation contour in Section 16; T15S/R5W; then
(19) Proceed southwesterly along the 360-foot elevation contour, crossing Ferguson Creek, and continuing generally southeasterly along the elevation contour, crossing onto the Cheshire map and crossing over Owens Creek and Jones Creek, to the point where the elevation contour crosses Bear Creek and turns north in Section 52; T16S/R5W; then
(20) Continue northeasterly along the 360-foot elevation contour to the point where it turns south in the town of Cheshire; then
(21) Continue south along the 360-foot elevation contour and return to the beginning point.
Coast Guard, Department of Homeland Security (DHS).
Notification of enforcement of regulation.
The Coast Guard will enforce a temporary safety zone for a fireworks display located on the navigable waters
The regulations in 33 CFR 165.845 will be enforced from 9:00 p.m. to 10:00 p.m. on November 17, 2021.
If you have questions about this notification of enforcement, call or email Lieutenant Commander William Stewart, Sector New Orleans, U.S. Coast Guard; telephone 504-365-2246, email
The Coast Guard will enforce safety zone located in 33 CFR 165.845 for the Four Seasons Hotel Fireworks Display event. The regulations will be enforced from 9:00 p.m. through 10:00 p.m. on November 17, 2021. This action is being taken to provide for the safety of life on navigable waterways during this event, which will be located between MM 94 and MM 95 above Head of Passes, Lower Mississippi River, LA. During the enforcement periods, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
In addition to this notification of enforcement in the
Department of Veterans Affairs
Interim final rule.
The Department of Veterans Affairs (VA) is amending its regulations that govern the Supportive Services for Veteran Families (SSVF) Program. This interim final rule will provide a more effective subsidy to veterans in high-cost rental markets; increase the cap on General Housing Assistance to reflect increased costs; and extend the ability of SSVF grantees to provide emergency housing for the most vulnerable, unsheltered veterans and their families.
Comments may be submitted through
John Kuhn, National Director, Supportive Services for Veteran Families. 810 Vermont Avenue NW, Washington, DC 20420. (202) 632-8596 (this is not a toll-free telephone number).
VA is amending its regulations that govern the Supportive Services for Veteran Families (SSVF) Program under section 2044 of title 38 United States Code (U.S.C.), which requires the Secretary to provide financial assistance to eligible entities, approved under that section, to provide and coordinate the provision of supportive services for very low-income veteran families occupying permanent housing.
VA implements the SSVF Program in 38 CFR part 62. Through the SSVF Program, VA awards supportive services grants to private non-profit organizations or consumer cooperatives to provide or coordinate the provision of supportive services to very low-income veteran families who are residing in permanent housing and are at risk of becoming homeless. We note that, for the purposes of this section, permanent housing means community-based housing without a designated length of stay where an individual or family has a lease in accord with State and Federal law that is renewable and terminable only for cause. Examples of permanent housing include, but are not limited to, a house or apartment with a month-to-month or annual lease term or home ownership. A very low-income veteran family will be considered to be occupying permanent housing if the very low-income veteran family: Is residing in permanent housing and is at risk of becoming homeless but for the grantee's assistance; is lacking a fixed, regular, and adequate nighttime residence, is at risk of remaining in that state if they do not receive the grantee's assistance, and is scheduled to become residents of permanent housing within 90 days; or meets one of the conditions listed above after exiting permanent housing within the previous 90 days to seek other housing that is responsive to their needs and preferences.
Part 62 of 38 CFR details how the program is administered, to include the types of services, the application and scoring process, and other requirements and limitations associated with the program. This rulemaking amends 38 CFR 62.34, which establishes other supportive services that grantees may provide, which are necessary for maintaining independent living in permanent housing and housing stability. Specifically, this rulemaking will provide a more effective subsidy to veterans in high-cost rental markets; increase the cap on General Housing Assistance to reflect increased costs; and extend the ability of SSVF grantees to provide emergency housing for the most vulnerable, unsheltered veterans and their families.
Most critically, this rulemaking amends 38 CFR 62.34(a)(8) to provide a more effective subsidy to veterans in high-cost rental markets. A more effective subsidy is considered urgent and time sensitive as it will significantly improve the level of rental support available to homeless and at-risk Veterans. These Veterans currently face substantial risks of eviction and potential homelessness which constitutes a serious and imminent risk to their health. These risks are now prevalent and, with the end of eviction moratoriums, cannot be forestalled. Delays in issuing this interim rule will delay a potentially life-saving intervention.
A shallow subsidy offered recurring rental assistance at a fixed rate for a longer period in comparison to Rapid Rehousing. The expectation was that this sustained support would expand housing options and increase the Veteran households' ability to meet other costly living expenses. As a result, the SSVF Program Office embarked on an initiative in October 2019 to offer the Shallow Subsidy service in select communities.
The provision of shallow subsidy funds was implemented under 38 CFR 62.34(a)(8). VA is amending the fifth sentence of 38 CFR 62.34(a)(8) to provide a more effective subsidy to veterans in high-cost rental markets. We are also reorganizing current § 62.34(a)(8) for clarity, without changing the meaning of such section.
Paragraph (a) establishes the types of rental assistance that may be provided, such as payment of rent, penalties, or fees, to help the participant remain in permanent housing or obtain permanent housing. Paragraph (a)(8) currently states, in part, that extremely low-income veteran families and very low-income veteran families who meet the criteria of § 62.11 may be eligible to receive a rental subsidy for a 2-year period without recertification. The existing paragraph further states that the maximum amount of rental subsidy is 35 percent of the applicable Fair Market Rent (FMR) published by Housing and Urban Development (HUD).
First, we are increasing the subsidy from 35 percent to 50 percent in § 62.34(a)(8). We have received strong feedback from the community that increasing the Shallow Subsidy rate up to a maximum of 50 percent is necessary to provide meaningful assistance to the very low and extremely low-income Veteran households eligible for SSVF services. The housing affordability gap for these households is too wide to be bridged with a 35 percent subsidy. The National Low Income Housing Coalition (“The Gap: A Shortage of Affordable Rental Homes”,
We are also amending the basis for the rental subsidy for eligible participant families to be a maximum of 50 percent of the reasonable rent as defined in § 62.34(a)(4). VA defines rent reasonableness in § 62.34(a)(4) to mean the total rent charged for a unit must be reasonable in relation to the rents being charged during the same time period for comparable units in the private unassisted market and must not be in excess of rents being charged by the property owner during the same time period for comparable non-luxury unassisted units.
The reasons for this change are several. First, VA has received feedback from SSVF grantees in California stating that using the FMR reduces the amount of subsidies payable to participants because HUD's FMR rental rates consistently lag behind the true rental rates in the market, resulting in a subsidy of less than the intended 35 percent of the rental rates in the market. HUD sets the FMR at the 40th percentile of gross rents for typical, non-substandard rental units occupied by recent movers in a local housing market, meaning 60 percent of units will have rental costs that exceed the FMR. Furthermore, HUD counts households who moved in within the past 15 to 22 months as recent movers for purposes of determining the FMR. This results in rates that do not include the impact of recent rental inflation. Together, these policies set the FMR at below market rates.
In responding to the COVID-19 health emergency, SSVF obtained a modification under section 301 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5141) to employ a reasonable rent standard instead of the FMR. On March 31, 2020, HUD, also responding to the COVID-19 health emergency, issued a waiver of the Continuum of Care (CoC) program regulations at 24 CFR 578.49(b)(2) which prohibit CoC program recipients from using CoC funds to lease units above the FMR. In implementing the waiver of the FMR restriction, CoC program recipients were still required to ensure that units leased with CoC funds meet the CoC program's rent reasonableness standard. HUD explained that its waiver of FMR restriction will “assist recipients in locating additional units to house individuals and families experiencing homelessness and reduce the spread and harm of COVID-19.”
VA agrees with the SSVF grantees and believes that using a reasonable rent would more accurately represent the rental rates by providing a real time measure of rent for comparable units within the same rental market. VA also believes that the reasonable rent standard should continue to apply after the COVID-19 public health emergency. In addition, SSVF already uses rent reasonableness for purposes of determining rental assistance paid by grantees to its participants under § 62.34(a)(4) and proposes to apply that definition to § 62.34(a)(8) to support internal consistency and reduce administrative errors and burdens as this allows grantees to have a single standard for determining allowable rental assistance.
VA is amending 38 CFR 62.34(e)(2) in order to increase the cap on general housing stability assistance. Paragraph (e) establishes the general housing stability assistance. Paragraph (e)(2) currently states that a grantee may pay directly to a third party (and not to a participant), in an amount not to exceed $1,500 per participant during any 2-year period, beginning on the date that the grantee first submits a payment to a third party for certain types of expenses. The current cap of $1,500 was set with the publication of § 62.34(e)(2) on February 24, 2015. See 80 FR 9611. Due to inflation, the value of that cap has eroded with time.
The Consumer Price Index for all Urban Consumers (CPI-U) is a measure of the average change over time in the prices paid by urban consumers for a variety of goods and services. It provides indexes for various geographic areas and price data for food, clothing, shelter, fuels, transportation, medical care, drugs, and other goods and services that people buy for day-to-day living. General housing stability assistance funds can be provided for some of the goods and services measured by the CPI-U such as uniforms, tools, kitchen utensils, and bedding. The CPI-U is a useful indicator of the increasing annual costs of these items. Between 2015 and 2021 the cumulative CPI-U, not corrected for compounding, was 14.4 percent. Assuming an annual CPI of 3 percent for 2022, and including a modest effect for compounding interest, we are increasing the $1,500 cap to $1,800 so that the purchasing power of the $1,500 cap set on February 24, 2015 is restored. Additionally, there will be an automatic adjustment to this cap so that it increases annually based on the CPI-U.
Currently, 38 CFR 62.34(f)(2) states that placement for a veteran and his or her spouse with dependent(s) in emergency housing may not exceed 45 days. We are amending 38 CFR 62.34(f)(2) to provide additional assistance to vulnerable, unsheltered homeless veteran families. We note that, for the purpose of this part, veteran
Through the SSVF program, VA is seeking to engage unsheltered veterans who typically have higher barriers to permanent housing placement. VA finds that in some high rental markets, particularly when working with high barrier households, 45 days was insufficient time to complete a permanent housing placement. To that end, we are increasing the current 45-day limit, stated in § 62.34(f)(2), to 60 days. This increase will provide additional time in emergency housing to the most vulnerable veteran population of unsheltered veterans and their families.
The Administrative Procedure Act (APA), codified at 5 U.S.C. 553, generally requires that agencies publish substantive rules in the
However, pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
In addition, section 553(d) of the APA requires a 30-day delayed effective date following publication of a rule, except for “(1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule.”
In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary has concluded that there is good cause to publish this rule without prior opportunity for public comment and to publish this rule with an immediate effective date to address the needs of service members and veterans who are homeless or at imminent risk of homelessness. Delay in the implementation of this rule would be impracticable and contrary to the public interest. More than 7 million adults currently live in households that are behind on rent payments. As of August 30, 2021, roughly 3.6 million individuals in the U.S. said they are “very likely” or “somewhat likely” to face eviction in the next two months, according to the U.S. Census Bureau's Household Pulse Survey. (
On September 4, 2020, the CDC and the Department of Health and Human Services (HHS) published an Order under Section 361 of the Public Health Service Act to temporarily halt residential evictions to prevent the further spread of COVID-19. 85 FR 55292. This Order was effective from September 4, 2020, through December 31, 2020, and was extended until July 31, 2021. 86 FR 34010. On August 3, 2021, CDC issued a subsequent, more narrowly tailored eviction order to temporarily halt evictions in United States counties experiencing substantial or high rates of community transmission of COVID-19. 86 FR 43244. The order was then challenged in the DC district court, which vacated the order on a nationwide basis, but stayed its judgment pending appeal. The Supreme Court then vacated the district court's stay, effectively ending the moratorium order.
The Secretary's decision to increase the subsidy in § 62.64(a)(8) from 35% to 50% requires immediate effect to ensure rental supports are immediately available to very low-income veterans at-risk of becoming homeless, particularly given that the COVID-19 pandemic, with its sustained adverse economic consequences, may have reduced or limited their personal resources.
The U.S. Department of Treasury's Emergency Rental Assistance Program (EARP) primarily pays rental arrears; financial assistance for prospective rent payments is limited. Unlike the rental subsidy proposed by this regulation, ERAP would not make rent more affordable. The increased subsidy would be provided in addition to the ERAP funds. Other state and local resources to assist veterans with rent, outside those that are federally supported such as ERAP, are very limited and not available or insufficient in most areas of the country. Many veterans and grantees report it has been difficult to access these resources. By making rent affordable, the rental subsidy proposed by this regulation allows veteran families to sustain their housing, giving landlords less cause to proceed with evictions.
Furthermore, widespread reports of soaring rental prices (“Rent Prices Are Soaring as Americans Flock Back to Cities” Washington Post, July 10, 2021) will leave many veteran families at-risk even if rent arrears stemming from the COVID-19 induced economic crisis have been paid by programs such as SSVF or ERAP. The low-income families served by SSVF will need the elevated levels of support to address the growing gap between their income and rental costs. The risk of becoming homeless will become particularly acute for many low-income families now that the CDC eviction moratorium is no longer in effect. Although eviction moratoriums remain in effect in a few states and municipalities, these policy responses are temporary and do not provide a permanent solution for protecting the vast majority of at-risk veterans who continue to face eviction
SSVF has used the modification obtained under 42 U.S.C. 5141 for COVID-19 to increase the resources available through the rental subsidy that is made available in § 62.34(a)(8). This has allowed SSVF to use “rent reasonableness” as the basis for the rental subsidy, rather than the FMR. While this effect only modestly increases the level of rental subsidy, it remains an important change and needs to continue even once the public health emergency ends.
For these reasons, the Secretary has concluded that ordinary notice and comment procedures would be impracticable and contrary to the public interest as delay will have significant negative health consequences to homeless and at-risk veterans and is accordingly issuing this rule as an interim final rule. However, the Secretary will consider and address comments that are received within 60 days after the date that this interim final rule is published in the
This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This interim final rule will only impact those entities that choose to participate in the SSVF Program. Small entity applicants will not be affected to a greater extent than large entity applicants. Small entities must elect to participate, and it is considered a benefit to those who choose to apply. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is an economically significant regulatory action under Executive Order 12866. VA has determined that there are costs and transfers associated with the provisions of this rulemaking. The costs for § 62.34(a)(8) are estimated to be between a lower bound of $204.2M in FY2022 and $895M over a five-year period (FY2022-FY2026) and an upper bound of $291.8M in FY2022 and $1.65B over a five-year period. The costs for 62.34(e)(2) are estimated to be $720,000 in FY2022 and $3.8M over a five-year period.
The full Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are: 64.009, Veterans Medical Care Benefits, and 64.033, VA Supportive Services for Veteran Families Program.
The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined that this regulatory action is a major rule under Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act), 5 U.S.C. 801-808, because it may result in an annual effect on the economy of $100 million or more. 5 U.S.C. 804(2). In accordance with 5 U.S.C. 801(a)(1), VA will submit to the Comptroller General and to Congress a copy of this Regulation and the Regulatory Impact Analysis (RIA) associated with the Regulation. However, for the reasons explained above, VA has found that there is good cause to publish this rule with an immediate effective date, pursuant to 5 U.S.C. 808(2).
Administrative practice and procedure, Day care, Disability benefits, Government contracts, Grant programs—health, Grants—housing and community development, Grant programs—veterans, Health care, Homeless, Housing, Indian—lands, Individuals with disabilities, Low and moderate income housing, Manpower training program, Medicaid, Medicare, Public assistance programs, Public housing, Relocation assistance, Rent subsidies, Reporting and recordkeeping requirements, Rural areas, Social security, Supplemental security income (SSI), Travel and transportation expenses, Unemployment compensation.
Denis McDonough, Secretary of Veterans Affairs, approved this document on August 26, 2021, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
For the reasons set forth in the preamble, we are amending 38 CFR part 62 as follows:
38 U.S.C. 501, 2044, and as noted in specific sections.
(a) * * *
(8) Extremely low-income veteran families and very low-income veteran families who meet the criteria of § 62.11 may be eligible to receive a rental subsidy as follows:
(i) For a 2-year period without recertification.
(ii) The applicable counties will be published annually in the
(iii) The maximum amount of this rental subsidy is 50 percent of reasonable rent as defined by paragraph (a)(4) of this section. Grantees must collaborate with their local Continuum of Care (CoC) as defined at 24 CFR 578.3 to determine the proper subsidy amounts to be used by all grantees in each applicable county.
(iv) Grantees must provide a letter of support from their local CoC to the Supportive Services for Veteran Families (SSVF) Program Office when requesting VA approval of this subsidy. The SSVF Program Office must approve all subsidy requests before the subsidy is used.
(v) Very low-income veteran families may receive this subsidy for a period of two years before recertification minus the number of months in which the recipient received the rental assistance provided under paragraph (a)(1) of this section.
(vi) Extremely low-income veteran families may receive this subsidy for up to a 2-year period before recertification following receipt of rental assistance under paragraph (a)(1) of this section.
(vii) For any month, the total rental payments provided to a family under this paragraph (a)(8) cannot be more than the total amount of rent. Payment of this subsidy by a grantee must conform to the requirements set forth in paragraphs (a)(2) through (7) of this section. The rental subsidy amount will not change for the veteran family in the second year of the two-year period, even if the annual amount published changes.
(viii) A veteran family will not need to be recertified as a very low-income veteran family as provided for by § 62.36(a) during the initial two-year period. After an initial two-year period, a family receiving this subsidy, or a combination of the rental assistance under paragraph (a)(1) of this section and this subsidy, may continue to receive rental payments under this section, but would require recertification at that time and once every two years.
(e) * * *
(2) A grantee may pay directly to a third party (and not to a participant), in an amount not to exceed $1,800, per participant during any 2-year period, beginning on the date that the grantee first submits a payment to a third party. This cap will be adjusted annually based on the Consumer Price Index for all Urban Consumers (CPI-U). This amount is for the following types of expenses:
(f) * * *
(2) Placement for a veteran and his or her spouse with dependent(s) may not exceed 60 days.
Postal Regulatory Commission.
Direct final rule.
The Commission is announcing an update to the competitive product list. This action reflects a publication policy adopted by Commission rules. The referenced policy assumes periodic updates. The updates are identified in the body of this document. The competitive product list, which is re-published in its entirety, includes these updates.
This rule is effective December 27, 2021, without further action, unless adverse comment is received by December 10, 2021. If adverse comment is received, the Commission will publish a timely withdrawal of the rule in the
For additional information, this document can be accessed electronically through the Commission's website at
David A. Trissell, General Counsel, at 202-789-6800.
Pursuant to 39 U.S.C. 3642(d)(2) and 39 CFR 3040.103, the Commission provides a Notice of Update to Competitive Product List by listing all necessary modifications to the competitive product list.
Pursuant to 39 CFR part 3040, the Commission maintains a Mail Classification Schedule (MCS) that includes rates, fees, and product descriptions for each market dominant and competitive product, as well as product lists that categorize Postal Service products as either market dominant or competitive.
Pursuant to 39 CFR 3040.103(d)(1), this Notice of Update to Product Lists identifies any modifications made to the market dominant or competitive product list, including product additions, removals, and transfers.
The following list of products is being added to “Appendix B to Subpart A of Part 3040—Competitive Product List”:
The following list of products is being removed from “Appendix B to Subpart A of Part 3040—Competitive Product List”:
The above-referenced changes to the competitive product list are incorporated into “Appendix B to Subpart A of Part 3040—Competitive Product List.”
1. Part 3040 of title 39, Code of Federal Regulations, is amended as set forth below the signature of this document, effective 45 days after the date of publication of the document in the
2. The Secretary shall arrange for publication of the document in the
3. Interested persons may submit adverse comments no later than 30 days from the date of the publication of this document in the
4. If adverse comments are received, the Secretary will publish a timely withdrawal of the document in the
By the Commission.
Administrative practice and procedure, Postal Service.
For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:
39 U.S.C. 503; 3622; 3631; 3642; 3682.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures (AMs) applicable to the commercial harvest of hogfish in the South Atlantic exclusive economic zone (EEZ) off Georgia, South Carolina, and North Carolina (Georgia-North Carolina) for the 2021 fishing year through this temporary rule. NMFS estimates that commercial landings of the Georgia-North Carolina hogfish stock have reached the sector's annual catch limit (ACL). Therefore, NMFS closes the commercial sector for the Georgia-North Carolina hogfish stock on November 10, 2021. This closure is necessary to protect the hogfish resource.
This rule is effective 12:01 a.m., local time, November 10, 2021, until 12:01 a.m., local time, January 1, 2022.
Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes hogfish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
On August 24, 2017, NMFS implemented management measures for hogfish through a final rule for Amendment 37 to the FMP (82 FR 34584; July 25, 2017). For South Atlantic hogfish, that final rule set management and AMs as two stocks: Georgia, South Carolina, and North Carolina (Georgia-North Carolina), and Florida Keys/East Florida (Florida Keys-East Florida). It also specified fishing levels and AMs for those stocks, according to each sector. The commercial inseason AM for Georgia-North Carolina states that if commercial landings reach or are projected to reach the commercial ACL, then the commercial sector will be closed for the remainder of the fishing year (50 CFR 622.193(u)(1)(i)(A)).
The commercial ACL for the Georgia-North Carolina hogfish stock is 23,456 lb (10,639 kg), round weight (50 CFR 622.193(u)(1)(iii)(A)). The NMFS Southeast Fisheries Science Center indicates that the commercial ACL for the Georgia-North Carolina hogfish stock has been reached. Therefore, this temporary rule implements an AM to close the commercial sector of the Georgia-North Carolina hogfish stock for the remainder of the 2021 fishing year. As a result, the 2021 commercial harvest for the Georgia-North Carolina hogfish stock in Federal waters of the South Atlantic EEZ will be closed effective 12:01 a.m., local time, November 10, 2021. During the closure, the recreational bag and possession limits for the Georgia-North Carolina hogfish stock in or from South Atlantic Federal waters is two fish per person, per day.
All sale or purchase of hogfish in or from Federal waters of the South Atlantic off Georgia, South Carolina, and North Carolina is prohibited, and harvest or possession of this species is limited to the bag and possession limits while the recreational sector is open. These bag and possession limits apply to the Georgia-North Carolina hogfish stock on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested,
Commercial harvest for the 2022 fishing year for the Georgia-North Carolina hogfish stock in South Atlantic Federal waters will open at 12:01 a.m., local time, on January 1, 2022.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 50 CFR 622.193(u)(1)(i)(A), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), the NMFS Assistant Administrator (AA) finds good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule that established the commercial ACL and AMs for hogfish has already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect the Georgia-North Carolina hogfish stock. The commercial ACL for the Georgia-North Carolina hogfish stock in the South Atlantic has been reached and prior notice and opportunity for public comment would require time, resulting in a harvest well in excess of the established commercial ACL.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This action reopens gillnet fishing in the Nantucket Lightship and Closed Area I Closure Areas previously ordered suspended by a Court decision. Gillnet fishing will be allowed in the Nantucket Lightship and Closed Area I Groundfish Closure Areas, as approved in the New England Fishery Management Council's Omnibus Essential Fish Habitat Amendment 2. This action is necessary to end the suspension of measures from a previously approved and implemented Council action and remove temporary prohibitions that were in place to comply with a Federal court order.
Effective on November 10, 2021.
Moira Kelly, Senior Fishery Program Specialist, Greater Atlantic Regional Fisheries Office, 978-281-9218
On January 3, 2018, NMFS partially approved the New England Fishery Management Council's Omnibus Essential Fish Habitat Amendment 2. The Omnibus Amendment updated essential fish habitat designations for all Council-managed species and implemented changes to the spatial management of Council-managed fisheries throughout the Gulf of Maine, Georges Bank, and Southern New England. On April 9, 2018, a final rule implemented the approved measures (83 FR 15240). The final rule opened, modified, and maintained various previously closed areas, as well as established new closures to implement approved measures of the Amendment. The Nantucket Lightship and Closed Area I Groundfish Closure Areas were opened to fishing by gears capable of catching groundfish, including gillnets and bottom-trawls, throughout the areas in this final rule. (Note, scallop fishing was prohibited for a brief time, pending a follow-on scallop action that incorporated the newly opened areas into the Scallop Fishery Management Plan's rotational management program. See: 83 FR 17300; April 19, 2018.) Directed groundfish fishing had been prohibited in these general areas consistently since the 1980s and early 1990s.
The Conservation Law Foundation filed suit against NMFS arguing that the rulemaking process that allowed the opening of the Nantucket Lightship and Closed Area I Groundfish Closure Areas to gears capable of catching groundfish, including gillnet gear, was not done in compliance with the Endangered Species Act consultation requirements as it pertains to North Atlantic right whales.
On October 28, 2019, First District Court Judge James E. Boasberg (see
Recently, NMFS completed the Endangered Species Act Section 7 Consultation on 10 fisheries and the New England Fishery Management Council's Omnibus Essential Fish Habitat Amendment. The consultation concluded that the implementation of the approved portions of the Amendment, including removing the prohibition on gillnet fishing in the Nantucket Lightship and Closed Area I Groundfish Closure Areas, would not result in large shifts of fishing effort across or within the region. As a result, these shifts are not expected to increase the risk to protected species in the region. The completion of this consultation satisfied the requirements of the court order.
Therefore, this action re-opens the Nantucket Lightship and Closed Area I Closure Area to gillnet fishing, as approved in the Omnibus Habitat Amendment.
The Atlantic Large Whale Take Reduction Team is considering broader impacts of gillnet fishing on North Atlantic right whales. These considerations may include area-based closures (seasonal or year-round) or other measures that may restrict gillnet fishing in the areas of the Nantucket Lightship and Groundfish Closure Areas in the future. Interested parties should continue to follow the Take Reduction Team process and provide comments, concerns, and suggestions as described. More information is available on our website (
Pursuant to section 304(a) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the regulations as implemented in this final rule are necessary to discharge the Secretary's responsibilities under the Magnuson-Stevens Act and to comply with the Order issued from the First District Court on October 28, 2019.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The NMFS Assistant Administrator finds good cause that prior notice and an opportunity for public comment is unnecessary or contrary to public interest pursuant to 5 U.S.C. 553(b)(B). Notice and opportunity for public comment prior to reopening the Nantucket Lightship and Closed Area 1 Groundfish Closure Areas to gillnet fishing is contrary to public interest because the Omnibus Habitat Amendment and its suspended measures fully comply with the Endangered Species Act and Magnuson-Stevens Act, and the prohibitions against fishing with gillnets are no longer necessary to comply with the Court's order enjoining fishing with gillnets in the Nantucket Lightship and Closed Area I Groundfish Closure Areas. Because the Amendment is now in full compliance with the Endangered Species Act and Magnuson-Stevens Act, the Secretary has no basis on which to keep the areas closed or modify the gillnet provisions that the Secretary approved in the Amendment. Further delaying reopening the areas for public comment would be inconsistent with the Secretary's responsibility to carry out fishery management amendments the Secretary has approved and are in full compliance with all applicable laws.
Additional opportunity for public comment on the open areas is unnecessary because notice and opportunity for comment on the Omnibus Habitat Amendment measures and its implementing regulations were provided already. The development of the Omnibus Habitat Amendment was a public process led by the New England Fishery Management Council, during which there were over 200 public meetings. The public had an opportunity to comment on the Amendment's measures and regulations involved in this action when they were implemented through publication in the
For the same reasons as above and additional reasons stated below, pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator finds good cause for these provisions to be effective immediately upon publication of this final rule. A delay in implementation is unnecessary because affected members of the public do not need time to prepare and the rule relieves a restriction implemented by the Court. The suspended measures were implemented on April 9, 2018. From that day until December 17, 2019, approximately 11 gillnet vessels took 39 trips into these areas. These vessel owners and operators along with others are familiar with the suspended measures. Access to these areas once these measures are restored and the prohibitions removed in this action is expected to provide an economic benefit to gillnet vessels fishing in these areas. Delaying the effective date for reopening these areas will unnecessarily delay and reduce this economic benefit to these vessels that could be gained during this fishing year.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to establish the approximately 98,000-acre “Gabilan Mountains” viticultural area in Monterey and San Benito Counties, California. The proposed viticultural area lies entirely within the established Central Coast viticultural area and would entirely encompass the established Mt. Harlan and Chalone viticultural areas. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. TTB invites comments on this proposed addition to its regulations.
TTB must receive comments on or before January 10, 2022.
You may electronically submit comments to TTB on this proposal, and view copies of this document, its supporting materials, and any comments TTB receives on it within Docket No. TTB-2021-0009 as posted on
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated the functions and duties in the administration and enforcement of these provisions to the TTB Administrator through Treasury Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003).
Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes the standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:
• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA;
• If the proposed AVA is to be established within, or overlapping, an existing AVA, an explanation that both identifies the attributes of the proposed AVA that are consistent with the existing AVA and explains how the proposed AVA is sufficiently distinct from the existing AVA and therefore appropriate for separate recognition;
• If the petition proposes the establishment of a new AVA that is larger than, and encompasses, all of one or more existing AVAs, the evidence submitted under paragraph (a) of § 9.12 must include information addressing whether, and to what extent, the attributes of the proposed AVA are consistent with those of the existing AVA(s);
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.
TTB received a petition from Parker Allen of Coastview Vineyards, proposing the establishment of the “Gabilan Mountains” AVA. The proposed Gabilan Mountains AVA is located within Monterey and San Benito Counties, California, and lies entirely within the established Central Coast AVA (27 CFR 9.75). The proposed AVA also entirely encompasses the established Mt. Harlan (27 CFR 9.131) and Chalone (27 CFR 9.24) AVAs. The proposed Gabilan Mountains AVA contains approximately 98,000 acres and has 6 commercially-producing vineyards covering a total of approximately 436 acres, as well as 4 wineries.
According to the petition, the distinguishing features of the proposed Gabilan Mountains AVA include its elevation, climate, and soils. Unless otherwise noted, all information and data pertaining to the proposed AVA contained in this document are from the petition for the proposed Gabilan Mountains AVA and its supporting exhibits.
The proposed Gabilan Mountains AVA takes its name from the Gabilan Mountains range in which the proposed AVA is located. According to the petition, the name is derived from the Spanish word meaning “sparrow hawk,” a reference to the large number of red-tailed hawks that can be found in the region.
The petition notes that the region of the proposed AVA is the setting for John Steinbeck's book
The proposed Gabilan Mountains AVA is comprised primarily of elevations above 1,500 feet. The northern boundary follows the 1,520-foot elevation contour and separates the proposed AVA from the lower elevations of the San Juan and Hollister Valleys, as well as from the Hollister Hills State Vehicular Recreational Area, which is not available for commercial viticulture. The eastern boundary follows a combination of the 1,520-foot elevation contour and the 1,600-foot elevation contour to separate the proposed AVA from the lower elevations of the adjacent, established San Benito (27 CFR 9.110) and Cienega Valley (27 CFR 9.38) AVAs. The southern boundary follows the boundary of the Pinnacles National Park boundary, to exclude that region of Federally-owned land that is not available for commercial viticulture. The western boundary generally follows the 1,520-foot elevation contour to separate the proposed AVA from the lower elevations of the Salinas Valley.
The distinguishing features of the proposed Gabilan Mountains AVA are its elevation, climate, and soils.
The proposed Gabilan Mountains AVA is located in a mountainous region with high elevations. According to the petition, the average elevation within the proposed AVA is 2,370 feet. By contrast, the surrounding regions all have lower average elevations, as demonstrated in the following table.
According
The petition states that the climate of the proposed Gabilan Mountains AVA distinguishes it from the surrounding regions, particularly with respect to fog and rainfall. According to a 2016 study cited in the petition, the proposed AVA averages fewer than 2.5 hours of fog and low clouds per day each year during the months of June through September.
According to the petition, the lack of fog within the proposed Gabilan Mountains AVA has an effect on viticulture. Vines exposed to humid conditions, such as heavy fog or low cloud cover, have a high degree of
Annual rainfall amounts within the proposed Gabilan Mountains are higher than in each of the surrounding regions.
According to the petition, rains during the fall and winter act to clear the soil and send nutrients and carbohydrates to the dormant roots. Extremely dry summers reduce the risk of moisture-associated diseases damaging the fruit and keeps the sugars and acids in balance closer to harvest.
The soils of the proposed Gabilan Mountains AVA are described in the petition as moderately coarse textured soils over a bedrock of granite. The soils are primarily from the Sheridan-Cieneba-Auberry association and are located on strongly sloping to very steep slope angles. The soils are also described as well-drained to excessively drained. Additionally, the soils are rich in calcium due to the high limestone content.
By contrast, the petition describes the soils in the valleys to the east and west of the proposed AVA as medium-textured soils on floodplains and alluvial plains. The petition included a San Benito County soil associations map, which includes the region to the east of the proposed AVA. The map shows that the soils in the eastern valleys outside of the proposed AVA are primarily of the San Benito-Gazos-Linne association. The petition did not include a soil association map of the valleys to the west of the proposed AVA in Monterey County, so TTB is unable to determine the primary soil association for that region. The petition also did not describe the soils to the north and south of the proposed AVA.
According to the petition, the quick-draining soils of the proposed AVA stress the vines during the growing season, resulting in more intense flavors and rich, hardy skins that are less associated with vines grown in less well-drained soils. Additionally, well-drained soils are at less of a risk for root decay than waterlogged soils. Finally, the high calcium content of the soil causes grapes to carry acid later into the growing season, allowing growers to let the grapes remain on the vines longer so that they reach physiological ripeness. As a result, vineyards in the proposed AVA are typically harvested two to three weeks later than the vineyards in the valleys of the surrounding regions.
In summary, the elevation, climate, and soils of the proposed Gabilan Mountains AVA distinguish it from the surrounding regions. The following table compares and contrast the features of the proposed AVA to each of the surrounding regions.
T.D.-ATF-216, which published in the
The proposed Gabilan Mountains AVA shares some of the general viticultural features of the Central Coast AVA. For example, like the Central Coast AVA, the proposed AVA has higher average annual rainfall amounts than the more inland valleys. However, due to its higher elevations, the proposed AVA experiences less marine fog incursion than many of the lower elevation and coastal regions of the Central Coast AVA. Additionally, due to its smaller size, the soils and elevations of the proposed AVA are less varied than those of the Central Coast AVA.
The Mt. Harlan AVA is located in the northern portion of the proposed Gabilan Mountains AVA and was established by T.D. ATF-304, which was published in the
Like the Mt. Harlan AVA, the proposed Gabilan Mountains AVA is a region of high, mountainous elevations surrounded by lower valleys. The proposed AVA also contains soils from the Sheridan, Cieneba, and Auberry series, and it also experiences less marine fog than most of the surrounding regions. However, due to its larger size, the proposed AVA has a broader range of elevations and a higher average elevation than the Mt. Harlan AVA. Additionally, the proposed AVA as a whole receives less rainfall annually than the Mt. Harlan AVA, due to the Mt. Harlan AVA's closer proximity to the Hollister and Cienega Valleys that funnel storms in from the Pacific Ocean.
The Chalone AVA is located in the southern end of the proposed Gabilan Mountains AVA and was established by T.D. ATF-107, which was published in the
The proposed Gabilan Mountains AVA shares some of the major characteristics of the Chalone AVA. For example, both the established AVA and the proposed AVA have higher elevations than the surrounding valleys, and both have soils characterized by high limestone content. However, due to its larger size, the proposed Gabilan Mountains AVA has a wider range of elevations and a higher average elevation. Additionally, the proposed AVA as a whole receives more rainfall annually than the Chalone AVA, which is sheltered from the Pacific storms by the Santa Lucia Mountains.
TTB concludes that the petition to establish the 98,000-acre Gabilan Mountains AVA merits consideration and public comment, as invited in this notice of proposed rulemaking.
See the narrative description of the boundary of the petitioned-for AVA in the proposed regulatory text published at the end of this proposed rule.
The petitioner provided the required maps, and they are listed below in the proposed regulatory text. You may also view the proposed Gabilan Mountains AVA boundary on the AVA Map Explorer on the TTB website, at
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or other term identified as being viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in § 4.25(e)(3) of the TTB regulations (27 CFR 4.25(e)(3)). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See § 4.39(i)(2) of the TTB regulations (27 CFR 4.39(i)(2)) for details.
If TTB establishes this proposed AVA, its name, “Gabilan Mountains,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the proposed regulation clarifies this point. Consequently, wine bottlers using the name “Gabilan Mountains” in a brand name, including a trademark, or in another label reference as to the origin of the wine, would have to ensure that the product is eligible to use the AVA name as an appellation of origin if this proposed rule is adopted as a final rule.
The approval of the proposed Gabilan Mountain AVA would not affect any existing AVA, and any bottlers using “Central Coast”, “Mt. Harlan,” or “Chalone” as an appellation of origin or in a brand name for wines made from grapes grown within those AVAs would not be affected by the establishment of this new AVA. The establishment of the proposed Gabilan Mountains AVA would allow vintners to use “Gabilan Mountains” and “Central Coast” as appellations of origin for wines made from grapes grown within the proposed Gabilan Mountains AVA if the wines meet the eligibility requirements for the appellation. Vintners whose wines meet the eligibility requirements for the Mt. Harlan AVA appellation would also be able to use “Gabilan Mountains,” along with or in place of “Mt. Harlan” or “Central Coast,” as an appellation of origin. Additionally, vintners whose wines meet the eligibility requirements for the Chalone AVA appellation would be able to use “Gabilan Mountains,” along with or in place of “Chalone” or “Central Coast,” as an appellation of origin.
TTB invites comments from interested members of the public on whether it should establish the proposed AVA. TTB is also interested in receiving comments on the sufficiency and accuracy of the name, boundary, soils, and other required information submitted in support of the petition. In addition, given the proposed Gabilan Mountain AVA's location within the existing Central Coast AVA, TTB is interested in comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the existing established AVA. TTB is also interested in comments on whether the geographic features of the proposed AVA are so distinguishable from the surrounding Central Coast AVA that the proposed Gabilan Mountains AVA should no longer be part of that AVA. Finally, TTB is interested in comments on whether the evidence sufficiently distinguishes the proposed AVA from the Mt. Harlan and Chalone AVAs located within it, and if either or both of those established AVAs are so distinct that they should not be a part of the larger proposed Gabilan Mountains AVA. Please provide any available specific information in support of your comments.
Because of the potential impact of the establishment of the proposed Gabilan Mountains AVA on wine labels that include the term “Gabilan Mountains” as discussed above under Impact on Current Wine Labels, TTB is particularly interested in comments regarding whether there will be a conflict between the proposed AVA name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed AVA will
You may submit comments on this notice by using one of the following methods:
•
•
Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 206 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.
In your comment, please clearly state if you are commenting for yourself or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity, your comment must include the entity's name, as well as your name and position title. If you comment via
You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.
All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.
TTB will post, and you may view, copies of this notice, selected supporting materials, and any online or mailed comments received about this proposal within Docket No. TTB-2021-0009 on the Federal e-rulemaking portal,
All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that the Bureau considers unsuitable for posting.
You may also obtain copies of this proposed rule, all related petitions, maps and other supporting materials, and any electronic or mailed comments that TTB receives about this proposal at 20 cents per 8.5- × 11-inch page. Please note that TTB is unable to provide copies of USGS maps or any similarly-sized documents that may be included as part of the AVA petition. Contact TTB's Regulations and Rulings Division by email using the web form at
TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
It has been determined that this proposed rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.
Karen A. Thornton of the Regulations and Rulings Division drafted this notice of proposed rulemaking.
Wine.
For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(a)
(b)
(1) Hollister, CA, 2015;
(2) Mount Harlan, CA, 2015;
(3) Paicines, CA, 2015;
(4) Bickmore Canyon, CA, 2015;
(5) North Chalone Peak, CA, 2015;
(6) Soledad, CA, 2015;
(7) Mount Johnson, CA, 2015;
(8) Gonzales, CA, 2015;
(9) Natividad, CA, 2015; and
(10) San Juan Bautista, CA, 2015.
(c)
(1) The beginning point is on the Hollister map at the intersection of the 1,520-foot elevation contour and an unnamed local road known locally as San Juan Canyon Road, southeast of the southernmost intersection of San Juan Canyon Road and Hillside Road. From the beginning point, proceed south, then southeasterly along the meandering 1,520-foot elevation contour to its intersection with a west-east flowing tributary of Bird Creek in Azalea Canyon; then
(2) Proceed southeast in a straight line, crossing Azalea Canyon and the
(3) Proceed generally southeasterly along the 1,520-foot elevation contour to its intersection with the eastern fork of an unnamed stream; then
(4) Proceed southeast in a straight line, crossing onto the Mount Harlan map, to the intersection of the 1,600-ft elevation contour and the northernmost unnamed creek; then
(5) Proceed generally south, then north along the 1,600-foot elevation contour to its intersection with a north-south trending tributary of Pescadero Creek; then
(6) Proceed south in a straight line, crossing Pescadero Creek, to the 1,520-foot elevation contour; then
(7) Proceed easterly along the meandering 1,520-foot elevation contour, crossing onto the Paicines map, and continuing along the 1,520-foot elevation contour as it meanders back and forth between the Mount Harlan map and the Paicines map, crossing Thompson Creek and continuing along the 1,520-foot elevation contour to its intersection with the eastern fork of an unnamed intermittent stream on the Paicines map north of Three Troughs Canyon; then
(8) Proceed southeast in a straight line to a fork in a tributary of Stone Creek east of Three Troughs Canyon; then
(9) Proceed east-southeast in a straight line, crossing onto the Bickmore Canyon map, to the intersection of an unnamed tributary of the San Benito River and the 1,520-foot elevation contour; then
(10) Proceed southeasterly along the 1,520-foot elevation contour to a point north of the confluence of Willow Creek and the South Fork of Willow Creek; then
(11) Proceed south in a straight line to the confluence of Willow Creek and the South Fork of Willow Creek; then
(12) Proceed east in a straight line to State Route 25; then
(13) Proceed southeasterly along State Route 25 to its intersection with the boundary of Pinnacles National Park; then
(14) Proceed south, then east, then generally south along the boundary of Pinnacles National Park, crossing onto the North Chalone Peak map, to the intersection of the National Park boundary and the 1,520-foot elevation contour northeast of Mann Canyon; then
(15) Proceed westerly along the 1,520-foot elevation contour to its intersection with CA-146; then
(16) Proceed southwest in a straight line, crossing onto the Soledad map, to the fork in an unnamed intermittent creek running parallel to Fabry Road; then
(17) Proceed northwest in a straight line, crossing over Stonewall Creek, the unnamed intermittent creek and its tributaries in Bryant Canyon, and a second unnamed intermittent creek, to the intersection of the 1,480-foot elevation contour and the northern terminus of a third unnamed intermittent stream; then
(18) Proceed north in a straight line to the 1,520-foot elevation contour; then
(19) Proceed southwest, then generally northwest along the meandering 1,520-foot elevation contour, crossing over the Mount Johnson map and back and forth between the Gonzales map and the Mount Johnson map to the intersection of the 1,520-foot elevation contour and an unnamed tributary of Chular Creek southeast of Espinosa Canyon on the Gonzales map; then
(20) Proceed northwest in a straight line, crossing Chular Creek and Espinosa Canyon, to the 1,520-foot elevation contour; then
(21) Proceed generally northwesterly, then northeasterly along the 1,520-foot elevation contour, crossing over the Mount Harlan, Natividad, San Juan Bautista, and Hollister maps, returning to the beginning point on the Hollister map.
This document was received for publication by the Office of the Federal Register on October 29, 2021.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone for a fireworks display on December 4, 2021 from 9 p.m. through 10 p.m. The safety zone is needed to protect people and the environment on these navigable waters of the Tchefuncte River, LA. This proposed rulemaking would prohibit persons and vessels from entering the safety zone unless authorized by the Captain of the Port (COTP) Sector New Orleans or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before December 10, 2021.
You may submit comments identified by docket number USCG-2021-0808 using the Federal Decision Making Portal at
If you have questions about this proposed rulemaking, call or email Lieutenant Commander William A. Stewart, Waterways Management Division Chief, U.S. Coast Guard; telephone 504-365-2246, email
On October 19, 2021, the Coast Guard received a Marine Event Permit Application for a fireworks display on December 4, 2021 from 9 p.m. through 10 p.m. The fireworks will be launched from a deck barge anchored in the Tchefuncte River at 30 23-52.4 N, 90 09-14.48 W. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The COTP New Orleans has determined that potential hazards associated with the fireworks would be a safety concern for anyone within proximity of the deck barge. The COTP would establish a temporary safety zone with a 200-yard radius around the deck barge.
The purpose of this rulemaking is to protect people and environment on these navigable waters of the Tchefuncte
The Coast Guard is proposing to establish a temporary safety zone for fireworks display on December 4, 2021 from 9 p.m. through 10 p.m. The safety zone is needed to protect people, and environment on these navigable waters of the Tchefuncte River, LA. This proposed rulemaking would prohibit persons and vessels from entering the safety zone unless authorized by the COTP New Orleans or a designated representative. As used in this section,
The regulatory text we are proposing appears at the end of this document.
We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on establishing a temporary safety zone within a 200-yard radius of the deck barge on the Tchefuncte River on December 4, 2021 from 9 p.m. to 10 p.m. Moreover, 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 fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule. If the proposed 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
This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would 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. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting one hour that would prohibit entry within a 200 yard radius around the deck barge. Normally such actions are categorically excluded from further review under paragraph L60a of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary 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
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. 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.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 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, Revision No. 01.2.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative by VHF-FM radio, Channel 16 or 67. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
(e)
Office of Child Support Enforcement (OCSE), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).
Notice of proposed rulemaking; withdrawal.
OCSE is withdrawing a previously published notice of proposed rulemaking (NPRM) that solicited public comment on two optional exceptions to the prohibition against treating incarceration as voluntary unemployment in child support cases.
The NPRM published at 85 FR 58029, September 17, 2020, is withdrawn, effective immediately.
Yvette Riddick, Division of Policy and Training, Office of Child Support Enforcement, (202) 401-4885. Email inquiries to
On September 17, 2020, HHS published an NPRM (85 FR 58029) to the regulations at 45 CFR part 302 on two optional exceptions to the prohibition against treating incarceration as voluntary unemployment in child support cases. The NPRM included a comment period closing on November 16, 2020.
In response to the proposed rule, HHS received comments from 9 state child support agencies, 5 child support associations, 1 elected official, 1 nonprofit organization, and 33 private individuals. Most states are in compliance with the existing prohibition against treating
Other collateral consequences associated with orders set beyond a noncustodial parent's ability to pay may also decline, such as increased underground employment activity and reduced contact with their children.
HHS is therefore withdrawing the NPRM published on September 17, 2020 (85 FR 58029).
Fish and Wildlife Service, Interior.
Notification of 90-day petition rulings.
We, the U.S. Fish and Wildlife Service (Service), announce 90-day rulings on two petitions to add species to the approved list for captive-bred exotic bird species under the Wild Bird Conservation Act (WBCA) of 1992. Based on our review, we find that the petitions to add cactus conure (
These rulings were made on November 10, 2021.
Copies of the petition and information submitted are available online in Docket No. FWS-HQ-IA-2021-0116 at
Eleanora Babij, Chief, Branch of Consultation and Monitoring, 703-358-2488 (phone); 703-358-2276 (fax); or
The Wild Bird Conservation Act (WBCA; 16 U.S.C. 4901-4916) was enacted on October 23, 1992, to promote the conservation of exotic birds listed in the appendices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) by: Ensuring that all imports of exotic bird species into the United States are biologically sustainable and not detrimental to the species; ensuring that wild bird populations are not harmed by removal of birds from the wild for importation into the United States; ensuring that imported birds are not subject to inhumane treatment during capture and transport; and assisting wild bird conservation and management programs in countries of origin.
The approved list for captive-bred exotic bird species under the WBCA is authorized under the WBCA (16 U.S.C. 4905). It is a list of bird species that are regularly bred in captivity and no wild-caught birds of the species are in trade, and for which importation into the United States of captive-bred specimens is not prohibited by the WBCA. A WBCA import permit is not required if an exotic bird species is on the approved list for captive-bred exotic bird species. CITES requirements and any other applicable requirements for trade continue to apply.
The criteria for a species to be included in the approved list for captive-bred exotic bird species (“approved list”) are set forth in our regulations in title 50 of the Code of Federal Regulations (CFR) at § 15.31 (50 CFR 15.31), and the approved list is provided at 50 CFR 15.33(a).
We periodically review and update the approved list. Under 50 CFR 15.31, to be included in the approved list, an exotic bird species must meet all of the following criteria:
(a) All specimens of the species known to be in trade (legal or illegal) are captive-bred;
(b) No specimens of the species are known to be removed from the wild for commercial purposes;
(c) Any importation of specimens of the species would not be detrimental to the survival of the species in the wild; and
(d) Adequate enforcement controls are in place to ensure compliance with paragraphs (a) through (c), above.
Additional information relating to these criteria is available in our December 2, 1994, final rule that promulgated our regulations for the WBCA list of approved species (59 FR 62255).
Further, section 110 of the WBCA (16 U.S.C. 4909) and its implementing regulations at 50 CFR part 15 set forth the procedures for petitions to add a species of exotic bird to, or remove such a species from, the approved list at 50 CFR 15.33(a). Section 110(b) of the WBCA requires that for each petition submitted in accordance with section 110(a) of the WBCA, we make a preliminary ruling on whether a petition to add a species of exotic bird to, or remove such a species from, the approved list presents sufficient information indicating that the action requested in the petition might be warranted. We are to make this preliminary ruling within 90 days of our receipt of the petition and publish the ruling in the
The WBCA does not expressly define what constitutes “sufficient information indicating that the action requested in the petition might be warranted” with regard to a 90-day preliminary ruling. Given the purposes of the WBCA, including ensuring that all imports of exotic bird species into the United States are biologically sustainable and not detrimental to the species, we interpret this language to refer to the presentation of credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition might be warranted.
As described in our implementing regulations at 50 CFR 15.31, a species of exotic bird may be added to the approved list if the species meets all of the criteria (a) through (d) set forth in that section. However, the mere assertion that the species meets all of the criteria is not enough to support a preliminary ruling that the information in the petition is sufficient information indicating that the petitioned action might be warranted. The information presented in the petition must include sufficient information indicating that each of the criteria set forth at 50 CFR 15.31 might be met.
If we find that a petition presents such sufficient information, we will then provide an opportunity for the submission of public comments on the petition, and issue and publish in the
The WBCA places the obligation squarely on the petitioner to present the requisite level of information to meet the “sufficient information” test to demonstrate that the petitioned action might be warranted. Therefore, in determining whether the petition presents sufficient information, we are not required to seek out any supporting source materials beyond what is included with a given petition. As a result, we will not base our 90-day rulings on any claims for which supporting source materials have not been provided in the petition. We need not resort to supplemental information to bolster, plug gaps in, or otherwise supplement a petition that is inadequate on its face.
We note, however, in determining whether a petition presents sufficient information or not, we must determine whether the claims are credible. Therefore, it is appropriate for the Service to consider readily available information that provides context in which to evaluate whether or not the information that a petition presents is timely and up-to-date, and whether it is reliable or representative of the available information on the species, in making its determination as to whether the petition presents sufficient information. It is reasonable for the Service to be able to examine the information and claims included in a petition in light of readily available scientific information prior to committing limited Federal resources to the significant expense of a review pursuant to 16 U.S.C. 4909(b)(2). We note further that because, as discussed below, the petitions at issue here were on their face inadequate to meet the applicable standards, our 90-day rulings are based solely on the information provided in the petition—we did not consider any readily available scientific information regarding these two species.
Cactus conure (
On July 30, 2021, we received a petition dated July 30, 2021, from the Organization of Professional Aviculturists (OPA) requesting to add captive-bred cactus conures (
Criterion (a) is that all specimens of the species known to be in trade (legal or illegal) are captive-bred. The petition states: “This species is regularly bred in captivity in Europe. Attached to this petition are several publications relating to the captive breeding of Cactus Conure in Europe. Also attached are ads from the European website, Parrots 4 Sale, which includes several ads of Cactus Conures for sale. Also provided with this petition is a print out of the CITES trade database which shows that the last trade in wild specimens occurred in 1997. Since then, for over twenty-years, no wild caught trade has occurred. As such, this petition demonstrates that the Cactus Conure is regularly bred in European aviculture and there are no wild-caught birds of the species [are] in world trade.”
The petition includes a two-part interview published in 2016 by Parrots Daily News with Czech aviculturist Zdenek Vandelik, who keeps and breeds cactus conures and other South American parrots. With regard to cactus conure, in the first part of the interview, the breeder mentions only that he keeps and breeds a “colony of Cactus Conure,” and in the second part of the interview he states that he “still keep[s] Cactus Conures in a colony system. But I am going to split the group next year because the dominant pair is the only one which breeds. Other pairs lay eggs but they do not incubate them or do not feed chicks. Therefore I need to make a change.” Altogether, the 2016 two-part interview provides only one brief anecdote about cactus conure breeding by a single cactus conure breeder. The interview provides no information on the origin of the breeding stock or on the source of cactus conures in trade to or from the breeder. The petition also includes a section on conures from the book “Psittaculture: A Manual for the Care and Breeding of Parrots” by Tony Silva. The book excerpt does note that “Cactus Conures
The output from the CITES Trade Database submitted with the petition shows the international trade in the species reported since 1975, with the most recently reported entry being a 2018 export of bred-in-captivity specimens from Brazil to Portugal. The petitioner notes that the last international trade in wild cactus conure reported in the CITES Trade Database was in 1997. Although the CITES Trade Database and its data contained within can be extremely valuable in examining international trade in a particular species, there are limitations of the database, including some discrepancies in reporting. However, the limited data presented show a serious discrepancy in two reported instances of trade in 2013 and in 2014 that indicate a likelihood of non-compliant trade (illegal trade). In each instance an export quantity of only 2 live specimens was reported exported from the Netherlands, but an import quantity of 4 live specimens was
Therefore, based on the limited information provided in the petition regarding trade (legal or illegal) in this species, and the indication from the limited information provided that the species is rare in aviculture, we find that the petition does not present sufficient information indicating this species might meet criterion (a) at 50 CFR 15.31.
Criterion (b) is that no specimens of the species are known to be removed from the wild for commercial purposes. While the petition mentions information and advertisements concerning the captive-breeding of cactus conures in Europe and CITES Trade Database output, as quoted above under “Criterion (a),” the petition does not explicitly discuss or address this criterion. No citations or supporting materials are included in the petition to indicate that no specimens of the species are known to be removed from the wild for commercial purposes. The information provided in the petition indicates that some captive breeding of this species is occurring, that a small number of birds are being offered for sale commercially, and that there are few records of international trade in the species. However, no information was provided in the petition to confirm that birds are not being removed from the wild to serve as parental stock for captive-bred specimens for commercial purposes. In addition, the petition does not provide any information on collection in the range country of this species, Brazil, indicating that no wild specimens of cactus conures are being collected for commercial purposes. As noted above, the book excerpt presented notes only that cactus conures “are very popular in Brazil, where they are regarded as fairly quiet, intelligent and active pets.” This reference indicates there is a popular pet trade in the species in the range country, Brazil, and may indicate demand for the species from the wild, but the book gives no information as to whether the source of the pet trade or its breeding stock is wild or captive-bred, legal or illegal, or whether adequate enforcement controls are in place in Brazil to ensure that wild specimens are not entering international trade through this pet trade. Therefore, based on the lack of information provided in the petition regarding removal of specimens from the wild for commercial purposes, we find that the petition does not present sufficient information indicating that this species might meet criterion (b) at 50 CFR 15.31.
Criterion (c) is that any importation of specimens of the species would not be detrimental to the survival of the species in the wild. Given the purposes of the WBCA, we find the factors in our CITES regulations for non-detriment findings at 50 CFR 23.61 relevant to this criterion. The petition does not discuss or provide information to address this criterion. For example, the petition provides no information relating to the status or management of the species in the wild or the effect of trade in live cactus conures on cactus conures in the wild. As noted above, with regard to the range country, Brazil, the information presented notes only that cactus conures “are very popular in Brazil, where they are regarded as fairly quiet, intelligent and active pets.” This reference indicates there is a popular pet trade in the species in the range country, and may indicate demand for the species from the wild, but the petition provides no information as to whether the source of the pet trade or its breeding stock is wild or captive-bred, legal or illegal, or whether adequate enforcement controls are in place in Brazil to ensure that wild specimens are not being used unsustainably as breeding stock or otherwise entering international trade through this pet trade. Therefore, based on the lack of information provided in the petition regarding whether or not the importation of specimens of this species would be detrimental to the survival of the species in the wild, we find that the petition does not present sufficient information indicating that this species might meet criterion (c) at 50 CFR 15.31.
Criterion (d) is that adequate enforcement controls are in place to ensure compliance with criteria (a) through (c). The petition does not discuss or provide information to address this criterion. As explained in our 1994 final rulemaking (59 FR 62258), it is critical that enforcement be in place and adequate in range countries and in countries of export of captive-bred birds. The Service notes that adequate enforcement in exporting countries is critical to ensure that wild-caught birds will not be misrepresented and laundered as captive-bred birds. Adequate enforcement is critical to implementation of CITES, a specified purpose of the WBCA. With regard to the range country, Brazil, the information presented notes only that cactus conures “are very popular in Brazil, where they are regarded as fairly quiet, intelligent and active pets” and the output from the CITES Trade Database records Brazil as an exporting country. As previously noted, the petition provides no information as to
Our regulations at 50 CFR 15.31 state that for a species to be included in the approved list, an exotic bird species must meet all of the criteria set forth at 50 CFR 15.31. Given that the petition does not present sufficient information indicating that this species might meet any of the criteria set forth at 50 CFR 15.31, based on our review of the petition and the information submitted in the petition, we find that the petition does not present sufficient information indicating that adding the cactus conure (
Lineolated parakeet (green form) (
On August 3, 2021, we received a petition dated August 3, 2021, from the OPA and the Lineolated Parakeet Society (LPS) requesting to add captive-bred lineolated parakeet (green form) (
In the December 2, 1994, final rule that promulgated our regulations for the WBCA list of approved species (59 FR 62259), we noted that the lineolated or barred parakeet (
Criterion (a) is that all specimens of the species known to be in trade (legal or illegal) are captive-bred. The petition states: “This species is regularly bred in captivity in Europe. Attached to this petition are several publications relating to the captive breeding of Lineolated Parakeet in Europe. Also attached are ads from several European websites listing ads of captive-bred Lineolated Parakeets for sale. Also provided with this petition is a printout of the CITES trade database which shows that the last wild trade in the species occurred in 2012 when two wild-caught Lineolated Parakeet[s] specimens were re-exported from the U.S. to Canada for scientific purposes. The data also demonstrates that the species is commonly bred in captivity. As such, this petition demonstrates that the Lineolated Parakeets are regularly bred in aviculture,
The petition includes an article titled, “It's Not Easy Being Green” Project—The Importance of Wild Type Birds: The Disappearance of Green Lineolated Parakeet” by the Lineolated Parakeet Society (LPS), which discusses care and breeding of the species, as well as the goal of the LPS to propagate breeding of the wild, normal green color form and support a healthy stock of normal green color forms for strong breeding programs in U.S. aviculture. The petition also provided a section on South American Parakeets from the book “Psittaculture: A Manual for the Care and Breeding of Parrots” by Tony Silva and a 2020 account of
For the Service to list a species as exclusively captive-bred, the statute requires the Service to determine that the species is regularly bred in captivity and that no wild-caught birds of the species are in trade, legally or illegally. Simply noting that a species is bred in captivity is not sufficient to indicate that it is regularly bred in captivity. As explained in our 1994 final rulemaking (59 FR 62259-60), with so few records presented pertaining to the green form, we are not be able to make the determination required by the statute that the green form of the species is regularly bred in captivity. We noted that a purpose of the approved list for captive-bred exotic bird species is to facilitate commercial importation of captive-bred species, whose trade in no way can be detrimental to populations of these species in the wild. The fundamental purpose of the WBCA is conservation of exotic bird species in the wild.
Therefore, based on the lack of information provided in the petition regarding trade (legal or illegal) in this color form of the species, we find that the petition does not present sufficient information indicating that this color form of the species might meet criterion (a) set forth at 50 CFR 15.31.
Criterion (b) is that no specimens of the species are known to be removed from the wild for commercial purposes. While the petition mentions information and provides publications and advertisements concerning the captive-breeding of lineolated parakeets in Europe and CITES Trade Database output, as quoted above under “Criterion (a),” the petition does not explicitly discuss or address this criterion. No citations or supporting materials are included in the petition to indicate that no specimens of the green form of the species are known to be removed from the wild for commercial purposes. The information provided in the petition indicates that captive breeding of lineolated parakeets is occurring and that captive-bred birds are being offered for sale commercially, though as noted above little of the information presented clearly relates to the petitioned color form. However, no information was provided in the petition to confirm that birds of the petitioned color form are not being removed from the wild to serve as parental stock for captive-bred specimens for commercial purposes. In addition, the petition does not provide any information on collection in the range countries of this species indicating that no wild specimens of the green form of lineolated parakeets are being collected for commercial purposes. Therefore, based on the lack of information provided in the petition regarding removal of specimens from the wild for commercial purposes, we find that the petition does not present sufficient information indicating that this color form of the species might meet criterion (b) set forth at 50 CFR 15.31.
Criterion (c) is that any importation of specimens of the species would not be detrimental to the survival of the species in the wild. Given the purposes of the WBCA, we find the factors in our CITES regulations for non-detriment findings at 50 CFR 23.61 relevant to this criterion. The petition does not discuss or provide information to address this criterion. For example, the petition provides no information relating to the status or management of the species in the wild in any of its range countries or the effect of trade in live green form lineolated parakeets on lineolated parakeets in the wild. Therefore, based on the lack of information provided in the petition regarding whether the importation of specimens of this color form of the species would be detrimental to the survival of the species in the wild, we find that the petition does not present sufficient information indicating this color form of the species might meet criterion (c) set forth at 50 CFR 15.31.
Criterion (d) is that adequate enforcement controls are in place to ensure compliance with criteria (a) through (c). The petition does not discuss or provide information to address this criterion. As explained in our 1994 final rulemaking (59 FR 62258), it is critical that enforcement be in place and adequate in range countries and in countries of export of captive-bred birds. The Service notes that adequate enforcement in exporting countries is critical to ensure that wild-caught birds will not be misrepresented and laundered as captive-bred birds. Adequate enforcement is critical to implementation of CITES, a specified purpose of the WBCA. The petition does not provide information as to whether adequate enforcement controls are in place in any of the range countries or exporting countries for the green form of lineolated parakeet. Therefore, based on the lack of information provided in the petition regarding whether or not adequate enforcement controls are in place to ensure compliance with criteria (a) through (c), we find that the petition does not present sufficient information indicating that this color form of the species might meet criterion (d) set forth at 50 CFR 15.31.
Our regulations at 50 CFR 15.31 state that for a species to be included in the approved list, an exotic bird species must meet all of the criteria set forth at 50 CFR 15.31. Given that the petition does not present sufficient information indicating that this color form of the species might meet any of the criteria set forth at 50 CFR 15.31 based on our review of the petition and the information submitted in the petition, we find that the petition does not present sufficient information indicating that adding the lineolated parakeet (green form) (
Based on our evaluation of the information presented in the petitions under our implementing regulations at 50 CFR 15.31, we have determined that the petitions summarized above for cactus conure (
The primary author of this document is a staff member of the Division of Scientific Authority, U.S. Fish and Wildlife Service (see
The authority for this action is the Wild Bird Conservation Act (16 U.S.C. 4901-4916
Office of the Under Secretary for Economic Affairs, U.S. Department of Commerce.
Notice of public meetings.
The Office of the Under Secretary for Economic Affairs is providing notice of two upcoming meetings of the Advisory Committee on Data for Evidence Building (ACDEB or Committee). These will constitute the fourteenth and fifteenth meetings of the Committee in support of its charge to review, analyze, and make recommendations on how to promote the use of Federal data for evidence building purposes. At the conclusion of the Committee's first and second year, it will submit to the Director of the Office of Management and Budget, Executive Office of the President, an annual report on the activities and findings of the Committee. This report will also be made available to the public.
November 19, 2021; January 21, 2022. The meetings will begin at approximately 9:00 a.m. and adjourn at approximately 12:00 p.m. (ET). Each meeting will be held virtually.
Those interested in attending the Committee's public meetings are requested to RSVP to
Members of the public who wish to submit written input for the Committee's consideration are welcomed to do so via email to
Gianna Marrone, Program Analyst, U.S. Department of Commerce, 4600 Silver Hill Road (BE-64), Suitland, MD 20746; phone (301) 278-9282; email
The Foundations for Evidence-Based Policymaking Act (Pub. L. 115-435, Evidence Act 101(a)(2) (5 U.S.C. 315 (a)), establishes the Committee and its charge. It specifies that the Chief Statistician of the United States shall serve as the Chair and other members shall be appointed by the Director of the Office of Management and Budget (OMB). The Act prescribes a membership balance plan that includes: One agency Chief Information Officer; one agency Chief Privacy Officer; one agency Chief Performance Officer; three members who are agency Chief Data Officers; three members who are agency Evaluation Officers; and three members who are agency Statistical Officials who are members of the Interagency Council for Statistical Policy established under section 3504(e)(8) of title 44. Additionally, at least 10 members are to be representative of state and local governments and nongovernmental stakeholders with expertise in government data policy, privacy, technology, transparency policy, evaluation and research methodologies, and other relevant subjects. Committee members serve for a term of two years. Following a public solicitation and review of nominations, the Director of OMB appointed members per this balance plan and information on the membership can be found at
The ACDEB is interested in the public's input on the issues it will consider, and requests that interested parties submit statements to the ACDEB via email to
ACDEB Committee meetings are open, and the public is invited to attend and observe. Those planning to attend are asked to RSVP to
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that producers or exporters subject to this administrative review made sales of subject merchandise below normal value during the period of review October 31, 2018, through May 31, 2020.
Applicable November 10, 2021.
Preston Cox or Yang Jin Chun, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5041 or (202) 482-5760, respectively.
On July 7, 2021, Commerce published the
The merchandise subject to the order is glycine. For a complete description of the scope of this administrative review,
All issues raised in the case and rebuttal briefs filed by interested parties in this review are discussed in the Issues and Decision Memorandum. The Issues and Decision Memorandum is a public document and is made available to the public via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on a review of the record and our analysis of the comments received from interested parties regarding our
The statute and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance when calculating the rate for companies which were not selected for individual examination in an administrative review. For the respondents that were not selected for individual examination in this administrative review, we have assigned to them the simple average of the margins for Avid Organics Private Limited and Kumar Industries/Rudraa International,
We determine that the following estimated weighted-average dumping margins exist for the period October 31, 2018, through May 31, 2020.
Normally, Commerce discloses the calculations performed in connection with the final results of an administrative review to parties in the proceeding within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of final results in the
Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b)(1), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. For any individually-examined respondent whose weighted-average dumping margin is above
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
The following cash deposit requirements will be effective upon publication 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 duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a 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 the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On October 27, 2021, the U.S. Court of International Trade (CIT) issued its final judgment in
Applicable November 6, 2021.
Thomas Schauer, 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) 482-0410.
On June 12, 2017, Commerce published its
The Diamond Sawblades Manufacturers' Coalition (the petitioner) appealed Commerce's
In its first remand redetermination, issued in April 2019, Commerce concluded that Bosun failed to cooperate to the best of its ability and applied a rate based entirely on adverse facts available (AFA) to Bosun; Commerce also assigned that rate to the non-selected respondents that received a separate rate.
In its second remand redetermination, issued in July 2021, Commerce found that AFA was appropriate to apply to only certain of Bosun's sales to U.S. customers. Accordingly, Commerce recalculated Bosun's margin and assigned Bosun's rate to the non-selected respondents that received a separate rate.
Because there is now a final court judgment, Commerce is amending its
Because all the exporters listed above have a superseding cash deposit rate,
At this time, Commerce remains enjoined by CIT order from issuing instructions to liquidate entries that were exported by Bosun Tools Co., Ltd., and imported by or sold to (as indicated on the commercial invoice or Customs documentation) Bosun Tools, Inc. or Bosun Tools Inc., or exported by the non-selected respondents that received a separate rate, and were entered, or withdrawn from warehouse, for consumption during the period November 1, 2014, through October 31, 2015. These entries will remain enjoined pursuant to the terms of the injunction during the pendency of any appeals process.
In the event the CIT's ruling is not appealed, or, if appealed, is upheld by a final and conclusive court decision, Commerce intends to instruct CBP to assess antidumping duties on unliquidated entries of subject merchandise exported by Bosun Tools Co., Ltd., and imported by or sold to (as indicated on the commercial invoice or Customs documentation) Bosun Tools, Inc. or Bosun Tools Inc., or exported by the non-selected respondents that received a separate rate in accordance with 19 CFR 351.212(b). We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
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 January 10, 2022.
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 Cathy Ross, PRA Coordinator, NOAA Ocean Service, 1305 East-West Hwy,
NOAA's Office for Coastal Management requests the extension of a currently approved information collection NOAA has, or is given, authority under the Coastal Zone Management Act (CZMA), annual appropriations or other authorities, to issue funds to coastal states, localities or other recipients for planning, conservation, acquisition, protection, restoration, or construction projects. The required information enables NOAA to implement the Coastal and Estuarine Land Conservation Program (CZMA Section 307A), under its current or future authorization, and facilitate the review of similar projects under different, but related, authorities, including the National Estuarine Research Reserve System (CZMA Section 315) Land Acquisition and Construction program, the Coastal Zone Management Program's low-cost acquisition and construction program (CZMA Section 306A), or the Fish and Wildlife Coordination Act.
This collection covers the development of state coastal land conservation plans, and collection of information specifically needed for applying for and carrying out land acquisition, restoration, and construction projects, such as: Appraisals, property surveys and site plans, legal documentation such as deeds, easements and/or plats, and information needed for environmental compliance reviews. Such information is collected from project applicants or sub-recipients, which are typically state or local government agencies, but may also include nongovernmental or tribal organizations.
The information will be used in evaluating project proposals, reviewing the location and impact of proposed activities, documenting compliance with the National Environmental Policy Act and other applicable statutes, and conducting due diligence on market value, title encumbrances, property boundaries, proper recording of legal instruments. No changes are proposed to the collection.
Electronic formats are the preferred method for submitting CELCP plans, project applications, performance reports and other required materials. However, respondents may submit materials in electronic or paper formats. Project applications are normally submitted electronically via
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.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of intent to prepare a draft environmental impact statement and hold public scoping meetings; request for comments.
In accordance with the National Marine Sanctuaries Act (NMSA), the National Oceanic and Atmospheric Administration (NOAA) is initiating a process to consider designating a portion of waters along and offshore of the central coast of California as a national marine sanctuary. NOAA is initiating this process based on the area's qualities and boundaries as described in the community-based nomination
Comments are due by January 10, 2022. NOAA will host virtual public scoping meetings at the following dates and times:
NOAA may end a meeting before the time noted above if all those participating have completed their oral comments.
You may submit comments on this document by any of the following methods:
•
•
•
Paul Michel, (831) 241-4217,
The National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431
In July 2015, Fred Collins, on behalf of the Northern Chumash Tribal Council, submitted a nomination to NOAA through the Sanctuary Nomination Process (79 FR 33851), asking NOAA to consider designating an area on the central California coast as a national marine sanctuary. The nomination has been endorsed by a diverse coalition of organizations and individuals at tribal, local, state, regional, and national levels including elected officials, businesses, recreational users, conservation groups, fishing associations, tourism companies, museums, historical societies, and education groups. The submitted nomination package is available at:
NOAA added the area to the inventory of nominations that are eligible for designation in October 2015 and extended it on the inventory in September 2020 at the five-year interval after a review of the nomination (85 FR 61935). NOAA is now initiating the process to potentially designate the nominated area, excluding any geographical overlap of the boundaries proposed for the Morro Bay 399 Area in the July 29, 2021
The proposed national marine sanctuary would run along the mean high tide line from approximately Cambria at the terminal boundary of Monterey Bay National Marine Sanctuary (MBNMS), south along the San Luis Obispo County coast, excluding Morro Bay harbor and Port San Luis, and then further south to include the coast of Santa Barbara County to approximately Gaviota Creek, then offshore in a southwest direction along the western end of Channel Islands National Marine Sanctuary (CINMS), southward to include Rodriguez Seamount and shifting to the northwest to include the Santa Lucia Bank, to reconnect with the boundary for MBNMS offshore Cambria, and following that boundary eastward to the point of origin at the shoreline. As stated above, the proposed sanctuary designation excludes the area that geographically overlaps the proposed Morro Bay 399 Area. NOAA estimates the area encompassed in the proposed designation is approximately 7,000 square miles. A map of the proposed area can be found at
The area contains unique and diverse ecosystems essential to the heritage of the Chumash, one of the few ocean-going bands among the First Peoples of the Pacific Coast. The marine
The area being considered for sanctuary designation also contains more than 200 known shipwrecks. The area off Point Conception is a significant feature in California's long maritime history, with vessels regularly traversing the coast and, on occasion, sinking in this region. This collection of shipwrecks and overall maritime landscape are nationally significant because of the representativeness of the shipwrecks, their location on one of the nation's most historically important transportation corridors, and the potential for the discovery of other shipwrecks and submerged pre-contact cultural sites.
Proponents of the national marine sanctuary have also highlighted the maritime history and cultural heritage of the Chumash Tribal nation with the sanctuary proposal. Some of the earliest documented human habitation of North America is in this region and various bands of Chumash and other indigenous Tribes have deep cultural connections to this area of central California. While much of the coast of San Luis Obispo and Santa Barbara counties has been surveyed for Native American artifacts and settlements, the continental shelf may well hold yet undiscovered paleoshorelines and archaeological resources worthy of study and conservation.
Coastal communities are spread along the coastline of San Luis Obispo County. There are two primary entry points for vessels—Morro Bay and Port San Luis. Further south in Santa Barbara County, the coast is remote with more limited access, such as in and around Vandenberg Space Force Base or Hollister Ranch. Current human uses include commercial and recreational fishing, kayaking, surfing, diving, wildlife watching, research and general recreation such as beach walking or boating.
The purpose and need for the designation is to fulfill the purposes and policies outlined in Section 301(b) of the NMSA, 16 U.S.C. 1431(b), including to identify and designate as national marine sanctuaries areas of the marine environment which are of special national significance, provide authority for comprehensive and coordinated conservation and management of these marine areas, and to protect the resources of these areas. In particular, the proposed designation would:
• Develop coordinated and collaborative marine science, education and outreach, cultural heritage programs to assist in managing the area's nationally significant resources;
• Highlight the many diverse human activities, cultural connections and maritime heritage of the area, from the various First Nations to existing activities in the area;
• Respond to community interest in conserving the natural environments, wildlife and cultural resources of this area; and
• Provide additional conservation and comprehensive ecosystem-based management to address threats to the nationally significant resources of the proposed sanctuary.
NOAA's proposed action is to consider designating Chumash Heritage National Marine Sanctuary, as described in, Background on Sanctuary Nomination, via the sanctuary designation process detailed in section 304 of the NMSA (16 U.S.C. 1434). As part of the sanctuary designation process, NOAA will develop draft designation documents including a draft sanctuary management plan, proposed sanctuary regulations, and proposed terms of designation. Each national marine sanctuary has management programs developed with public input and crafted to meet the specific issues and resources found in that sanctuary. The NEPA process for sanctuary designation will include preparation of a draft environmental impact statement (DEIS) to consider alternatives and describe potential effects of the sanctuary designation on the human environment. The DEIS will evaluate a reasonable range of action alternatives that could include different options for sanctuary regulations, potential boundaries, and management plan goals. The DEIS will also consider a No Action Alternative, wherein NOAA would not designate the proposed sanctuary. The results of this scoping process will assist NOAA in formulating alternatives for the DEIS, including options for sanctuary boundaries, regulations, and a management plan. Reasonable alternatives that are identified during the scoping period will be evaluated in the DEIS.
The DEIS will identify and describe the potential effects of the Proposed Action, and reasonable alternatives, on the human environment. Potential impacts may include, but are not limited to, impacts on the area's: Natural marine resources, including habitats, plants, birds, sea turtles, marine mammals, and special status species; maritime, cultural and historic resources, including Traditional Cultural Properties and archaeological sites; human uses and socioeconomics of the area, such as research, recreation, education, energy development, cultural practices, fishing. Based on a preliminary evaluation of the resources listed above, NOAA expects potential impacts of enhanced protection of the area's natural, cultural and historic resources; improved planning and coordination of research, monitoring, and management actions; reducing harmful human activities and disturbance of special status species; restoration of native habitat and species populations; reducing threats and stressors to resources; and minimal disturbance during research or restoration actions.
The designation process includes the following well-established and highly participatory stages:
1. Public Scoping Process—Information collection and characterization, including the consideration of public comments received during scoping;
2. Preparation of Draft Documents—Preparation and release of draft designation documents, including: A DEIS, prepared pursuant to NEPA, that identifies boundary and/or regulatory alternatives; a draft management plan; and a notice of proposed rulemaking to define proposed sanctuary regulations. Draft documents would be used to
3. Public Comment—Through public meetings and in writing, allow for public review and comment on the DEIS, draft management plan, and notice of proposed rulemaking;
4. Preparation of Final Documents—Preparation and release of a final environmental impact statement (FEIS), final management plan, including a response to public comments, and a final rule and regulations.
5. The sanctuary designation and regulations would take effect after the end of a review period of forty-five days of a continuous session of Congress. During this same period, should the designation include state waters, the Governor of the state has the opportunity to concurrently review the terms of designation including boundaries within state waters.
NOAA expects to make the DEIS and other draft documents available to the public by late 2022. NOAA expects to make the FEIS available to the public in Fall 2023. A Record of Decision and the final management plan and final rule will be completed no sooner than 30 days after the FEIS is made available to the public, in accordance with 40 CFR 1506.11.
NOAA is the lead federal agency for the NEPA process for the Proposed Action. NOAA may invite other federal, Tribal, or State and local government agencies to become cooperating agencies in the preparation of this EIS. NEPA regulations specify that a cooperating agency means any Federal agency (and a State, Tribal, or local agency with agreement of the lead agency) that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal (or a reasonable alternative) (40 CFR 1508.1(e)).
With this notice, NOAA is initiating a public scoping process to gather input from individuals, organizations, federal agencies, and state, tribal, and local governments on the proposed designation of Chumash Heritage National Marine Sanctuary. NOAA intends to use this process to determine the scope and significant issues to be analyzed in depth in the DEIS, with consideration of the scoping factors and responsibilities provided in 40 CFR 1501.9. NOAA specifically requests comments on the following topics, including the identification of potential alternatives, information, and analyses relevant to the proposed action:
• The spatial extent of the proposed sanctuary and boundary alternatives NOAA should consider, starting with the boundary as described in Section. Background on Sanctuary Nomination;
• the location, nature, and value of the resources, including natural and submerged cultural resources as well as the indigenous heritage of the area, that would be protected by a sanctuary;
• potential positive and negative impacts to those resources;
• the management plan and regulatory framework most appropriate to the resources in the area, including compatible and incompatible uses;
• the potential socioeconomic, cultural, and biological impacts of designation;
• the potential to highlight the indigenous history and culture of the area;
• the potential to support research and advance scientific understanding;
• information regarding historic properties in the area and the potential effects to those historic properties to support National Historic Preservation Act compliance under Section 106;
• opportunities to benefit the “blue economy” of the region, including promoting sustainable tourism and recreation;
• potential name for the new sanctuary;
• the potential to advance multiple, complementary priorities of the Federal administration, the Department of Commerce, and NOAA, including conserving and restoring ocean and coastal habitats, supporting Tribally and locally led stewardship, and advancing offshore wind and other clean energy projects;
• the potential location of an administrative office as well as coastal education facilities including possibly a visitor center; and
• other information relevant to the designation and management of a new sanctuary in this proposed area.
Comments may be submitted to NOAA by January 10, 2022 using the methods described in
Federal, state, and local permits, authorizations, or consultations may be required for the Proposed Action, including consultation or review under the Endangered Species Act, 16 U.S.C. 1531
This notice confirms that NOAA will coordinate its responsibilities under section 106 of the National Historic Preservation Act during the sanctuary designation process and is soliciting public and stakeholder input to meet section 106 compliance requirements. The section 106 consultation process specifically applies to any agency undertaking that may affect historic properties. Pursuant to 36 CFR 800.16(1)(1), historic properties include: “Any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. The term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian Tribe or Native Hawaiian organization and that meet the National Register criteria.”
This notice also confirms that, with respect to the proposed sanctuary designation process, NOAA will fulfill its responsibilities under Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” and NOAA implementing policy and procedures. Executive Order 13175 requires federal agencies to establish procedures for meaningful consultation and coordination with Tribal officials in the development of federal policies that have Tribal implications. NOAA implements Executive Order 13175 through the NOAA Administrative Order 218-8 (Policy on Government-to-Government Consultation with Federally Recognized Indian Tribes and Alaska Native Corporations), and the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permits and permit amendments.
Notice is hereby given that permits and permit amendments have been issued to the following entities under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), as applicable.
The permits and related documents are available for review upon written request via email to
Shasta McClenahan, Ph.D. (Permit Nos. 20532-01 and 25740) and Sara Young (Permit No. 25786); at (301) 427-8401.
Notices were published in the
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, as applicable, issuance of these permit was based on a finding that such permits: (1) Were applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) are consistent with the purposes and policies set forth in Section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; proposed evaluation and pending determinations for five resource management plans in the Hood Canal Basin.
Notice is hereby given that NMFS has drafted Proposed Evaluation and Pending Determinations (PEPD) for five resource management plans (RMPs) for the rearing and releasing Chinook salmon, coho salmon, and chum salmon, and for research of Puget Sound Steelhead in the Hood Canal Basin of Washington State. The RMPs are in the form of hatchery and genetic management plans (HGMPs) for hatchery programs operated by Long Live the Kings (LLTK), the Port Gamble S'Klallam Tribe (PGST), the Skokomish Tribe (ST), and Washington Department of Fish and Wildlife (WDFW). In 2016 NMFS certified that the five HGMPs satisfied limit 6 of the 4(d) rule. The revised HGMPs will replace the versions of the same plans now in place. NMFS is notifying the public of the availability and opportunity to comment on PEPDs for the new programs. The hatchery programs are intended to contribute to fulfilling Federal tribal trust responsibilities and treaty rights guaranteed through treaties and affirmed in
Comments must be received at the appropriate address (see
Written comments should be addressed to the NMFS Sustainable Fisheries Division, 1201 NE Lloyd Blvd., Portland, OR 97232. Comments may be submitted by email. The mailbox address for providing email comments is:
Scott Sebring at (360) 819-7873 or by email at
• Puget Sound Chinook salmon (
• Puget Sound Steelhead (
• Hood Canal summer chum salmon (
Section 9 of the ESA and Federal regulations prohibit the “taking” of a species listed as endangered or threatened. The term “take” is defined under the ESA to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. NMFS may make exceptions to the take prohibitions in section 9 of the ESA for programs that are approved by NMFS under the 4(d) rule for salmon and steelhead (50 CFR 223.203(b)).
The operators and funding agencies, including the LLTK, PGST, ST, and WDFW, have submitted revised HGMPs to NMFS pursuant to NMFS' 4(d) rule of the ESA for hatchery activities. The operators propose to provide additional forage to southern resident killer whales, a species listed as endangered under the ESA that relies on adult salmon as a food resource. The operators of the Hood Canal steelhead supplementation program propose to investigate genetic effects of natural-origin steelhead dispersal throughout the Hood Canal Basin. The operators of the Hoodsport fall Chinook salmon program propose to investigate the effects of release timing on survival of adult fall Chinook salmon, a non-ESA-listed stock.
Department of the Army, DoD.
Notice.
Notice is given of the names of members of a Performance Review Board for the Department of the Army.
October 29, 2021.
Barbara Smith, Civilian Senior Leader Management Office, 111 Army Pentagon, Washington, DC 20310-0111, email:
Section 4314(c)(1) through (5) of Title 5, U.S.C., requires each agency to establish, in accordance with regulations, one or more Senior Executive Service performance review boards. The boards shall review and evaluate the initial appraisal of senior executives' performance by supervisors and make recommendations to the appointing authority or rating official relative to the performance of these executives.
The Department of the Army Performance Review Board will be composed of a subset of the following individuals:
Office of Energy Efficiency and Renewable Energy, Department of Energy (DOE).
Notice and request for OMB review and comment.
The Department of Energy (DOE) has submitted to the Office of Management and Budget (OMB) for clearance, pursuant to the Paperwork Reduction Act of 1995, a three-year extension to its collection of information titled:
Comments regarding this continued information collection must be received on or before December 10, 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, please advise the DOE Desk Officer at OMB of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at (202) 395-4650.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Requests for additional information or copies of the information collection instrument and instructions should be directed to James Cash, U.S. Department of Energy, Golden Field Office, 15013 Denver West Parkway, Golden, CO 80401-3111, or by phone (240) 562-1456, or by email at
This information collection request contains:
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This document of the Department of Energy was signed on November 5, 2021, by Derek G. Passarelli, Head of Contracting Activity and Director, Golden Field Office, Office of 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
Department of Energy.
Notice of meetings.
The Industry Advisory Board (IAB) to the International Energy Agency (IEA) will meet on November 15-16, 18, 2021, through a webinar, in connection with a joint meeting of the IEA's Standing Group on Emergency Questions (SEQ) and the IEA's Standing Group on the Oil Market (SOM) which is scheduled at the same time.
November 15-16, 18, 2021.
The location details of the SEQ and SOM webinar meeting are under the control of the IEA Secretariat, located at 9 rue de la Fédération, 75015 Paris, France.
Mr. Thomas Reilly, Assistant General Counsel for International and National Security Programs, Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, (202) 586-5000.
In accordance with section 252(c)(1)(A)(i) of the Energy Policy and Conservation Act (42 U.S.C. 6272(c)(1)(A)(i)) (EPCA), the following notice of meetings is provided:
A meeting of the Industry Advisory Board (IAB) to the International Energy Agency (IEA) will be held as a webinar, commencing at 12 noon, Central European Time (CET), on November 16, 2021. The purpose of this notice is to permit attendance by representatives of U.S. company members of the IAB at a meeting of the IEA's Standing Group on Emergency Questions (SEQ) and the IEA's Standing Group on the Oil Market (SOM), which is scheduled to be held via webinar at the same time. The IAB will also hold a preparatory meeting via webinar among company representatives at 15:00 CET on November 15, 2021. The agenda for this preparatory webinar meeting is to review the agenda for the SEQ meeting.
The location details of the SEQ webinar meeting are under the control of the IEA Secretariat, located at 9 rue de la Fédération, 75015 Paris, France. The agenda of the SEQ meeting is under the control of the SEQ and the SOM. It is expected that the SEQ and the SOM will adopt the following agenda:
A meeting of the Industry Advisory Board (IAB) to the International Energy Agency (IEA) will be held as a webinar, commencing at 12 noon, Central European Time (CET), on November 18, 2021. The purpose of this notice is to permit attendance by representatives of U.S. company members of the IAB at a joint meeting of the IEA's Standing Group on Emergency Questions (SEQ) which is scheduled to be held via webinar at the same time. The IAB will also hold a preparatory meeting via webinar among company representatives at 15:00 CET on November 15, 2021. The agenda for this preparatory webinar meeting is to review the agenda for the SEQ meeting. The location details of the SEQ webinar meeting are under the control of the IEA Secretariat, located at 9 rue de la Fédération, 75015 Paris, France. The agenda of the meeting is under the control of the SEQ. It is expected that the SEQ will adopt the following agenda:
As provided in section 252(c)(1)(A)(ii) of the Energy Policy and Conservation Act (42 U.S.C. 6272(c)(1)(A)(ii)), the meetings of the IAB are open to representatives of members of the IAB and their counsel; representatives of members of the IEA's Standing Group on Emergency Questions and the IEA's Standing Group on the Oil Markets; representatives of the Departments of Energy, Justice, and State, the Federal Trade Commission, the General Accounting Office, Committees of Congress, the IEA, and the European Commission; and invitees of the IAB, the SEQ, the SOM, or the IEA.
Take notice that during the month of October 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).
On October 20, 2021, Mad River Power Associates submitted to the Federal Energy Regulatory Commission a copy of its application for a Clean Water Act section 401(a)(1) water quality certification filed with the New Hampshire Department of Environmental Services (New Hampshire DES), in conjunction with the above captioned project. Pursuant to 40 CFR 121.6, we hereby notify the New Hampshire DES of the following:
If New Hampshire DES fails or refuses to act on the water quality certification request on or before the above 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 following hydroelectric application has been filed with the Commission and is available for public inspection:
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The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor 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.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene: 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, .214, respectively. 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.
o. Filing and Service of Documents: Any filing must (1) bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE” as applicable; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on October 29, 2021, Golden Triangle Storage, Inc. (GTS) requested that the Federal Energy Regulatory Commission (Commission) grant an extension of time, until December 31, 2024, in order to development of Storage Caverns 1 and 2 up to their maximum certificated storage capacities in Jefferson and Orange Counties, Texas. In a December 31, 2007 Order Issuing Certificates the Commission Approved the construction and operation of the GTS project (2007 Order)
In its October 29, 2021 request GTS had stated the 2007 Order recognized that after the caverns are placed in service, they will undergo additional solution mining to increase the working gas capacity of each cavern to its total certificated capacity. On October 15, 2013, GTS filed a request for an extension of time for an additional four years, until December 31, 2017, to complete the project.
Now on October 29, 2021 GTS requested an additional four-year extension of time to require additional rewatering cycles to reach its maximum certificated storage capacity cycle and recover any capacity lost to gradual creep since the most recent prior rewatering.
This notice establishes a 15-calendar day intervention and comment period deadline. Any person wishing to comment on Golden Triangle Storage, Inc request for an extension of time may do so. No reply comments or answers will be considered. If you wish to obtain legal status by becoming a party to the proceedings for this request, you should, on or before the comment date stated below, file a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the Natural Gas Act (18 CFR 157.10).
As a matter of practice, the Commission itself generally acts on requests for extensions of time to complete construction for Natural Gas Act facilities when such requests are contested before order issuance. For those extension requests that are contested,
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 “eFile” link at
Take notice that the Commission received the following electric rate 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:
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b.
c.
d.
e.
f.
g.
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The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor 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.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), Land Disposal Restrictions (Renewal), (EPA ICR No. 1442.24, OMB Control No. 2050-0085) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described in
Comments must be submitted on or before January 10, 2022.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0198, at
Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are open to the public by appointment only to reduce the risk of transmitting COVID-19. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at
The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.
Peggy Vyas, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0453; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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 regulations implementing these requirements are codified in the Code of Federal Regulations (CFR) title 40, part 268. EPA requires that facilities maintain the data outlined in this ICR so that the Agency can ensure that land disposed waste meets the treatment standards. EPA strongly believes that the recordkeeping requirements are necessary for the agency to fulfill its congressional mandate to protect human health and the environment.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces four public meetings of the SAB per- and polyfluoroalkyl substances (PFAS) Review Panel (PFAS Review Panel) to review EPA's Proposed Approaches to the Derivation of a Draft Maximum Contaminant Level Goal for Perfluorooctanoic Acid (PFOA) in Drinking Water; EPA's Proposed Approaches to the Derivation of a Draft Maximum Contaminant Level Goal for Perfluorooctanesulfonic Acid (PFOS) in Drinking Water; EPA's Analysis of Cardiovascular Disease Risk Reduction as a Result of Reduced PFOA and PFOS Exposure in Drinking Water; and EPA's Draft Framework for Estimating Noncancer Health Risks Associated with Mixtures of PFAS.
The public meetings of the Science Advisory Board PFAS Review Panel will be held on Thursday, December 16, 2021, from 12:00 noon to 5:00 p.m. (Eastern Time), Tuesday, January 4, 2022, from 12:00 noon to 5:00 p.m. (Eastern Time), Thursday, January 6, 2022, from 12:00 noon to 5:00 p.m. (Eastern Time), and Friday, January 7, 2022, from 11:00 a.m. to 4:00 p.m. (Eastern Time).
The meetings will be conducted virtually. Please refer to the SAB website at
Any member of the public who wants further information concerning the public meetings may contact Dr. Suhair Shallal, Designated Federal Officer (DFO), via telephone/voice mail (202) 564-2059, or email at
Federal advisory committees and panels, including scientific advisory committees, provide independent advice to the EPA. Members of the public can submit relevant comments pertaining to the committee's charge or meeting materials. Input from the public to the SAB PFAS Review Panel will have the most impact if it provides specific scientific or technical information or analysis for the SAB PFAS Review Panel to consider or if it relates to the clarity or accuracy of the technical information. Members of the public wishing to provide comment should contact the DFO directly.
Office of Mission Support, Environmental Protection Agency (EPA)
Amendment to EPA's existing Privacy Act general routine uses.
The U.S. Environmental Protection Agency's (EPA) Office of Mission Support is giving notice that it proposes to amend its current list of general routine uses for EPA systems of records in accordance with the provisions of the Privacy Act of 1974, as amended. The amended list of routine uses is consistent with requirements in a memorandum issued by the Office of Management and Budget (OMB) on January 3, 2017 (Memorandum M-17-12 “Preparing for and Responding to a Breach of Personally Identifiable Information”). OMB's memorandum requires that all Federal agencies publish two routine uses for their systems allowing for the disclosure of personally identifiable information to the appropriate parties in the course of responding to a breach or suspected breach of the agency's PII or to assist another agency in its response to a confirmed or suspected breach.
Persons wishing to comment on this routine use notice must do so by December 10, 2021.
Submit your comments, identified by Docket ID No. EPA-HQ-OEI-2007-1144, by one of the following methods:
Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are closed to the public, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via
Agency Privacy Officer, MC 2831T, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460;
The Privacy Act of 1974, as amended, 5 U.S.C. 552a, governs the means by which the United States Government collects, maintains, and uses personally identifiable information (PII) in a system of records. A “system of records” is a group of any records under the control of a federal agency from which information about individuals is retrieved by name or other personal identifier. The Privacy Act requires each agency to publish in the
EPA has previously published twelve general routine uses (
The amended general routine uses are compatible with the purposes for which the information to be disclosed under these general routine uses was originally collected. Individuals whose personally identifiable information is in EPA systems expect their information to be secured. Sharing their information with appropriate parties in the course of responding to a confirmed or suspected breach of an EPA system, or another agency's system, will help EPA and all Federal agencies protect them against potential misuse of their information by unauthorized persons. For the reasons above, the existing general routine use L is amended to reflect the guidance provided in OMB Memorandum M-17-12, reflected in new general routine uses L and M. Accordingly, the Agency's general routine uses are as follows:
1. The Agency, or any component thereof;
2. Any employee of the Agency in his or her official capacity;
3. Any employee of the Agency in his or her individual capacity where the Department of Justice or the Agency have agreed to represent the employee; or
4. The United States, if the Agency determines that litigation is likely to affect the Agency or any of its components,
Is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice or the Agency is deemed by the Agency to be relevant and necessary to the litigation provided, however, that in each case it has been determined that the disclosure is compatible with the purpose for which the records were collected.
HISTORY: 73 FR 2245 (January 14, 2008).
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), Oil Pollution Act Facility Response Plans (Renewal) (EPA ICR No. 1630.13, OMB Control No. 2050-0135) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described in
Comments must be submitted on or before January 10, 2022.
Submit your comments, referencing Docket ID No. EPA-HQ-OLEM-2018-0105, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Proprietary Business Information (PBI) or other information whose disclosure is restricted by statute.
J. Troy Swackhammer, Office of Emergency Management, Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-1966; email address:
Supporting documents, which explain in detail the information that EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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 purpose of an FRP is to help an owner or operator identify the necessary resources to respond to an oil discharge in a timely manner. If implemented effectively, the FRP will reduce the impact and severity of oil discharges and may prevent discharges because of the identification of risks at the facility. Although the owner or operator is the primary data user, EPA also uses the data in certain situations to ensure that facilities comply with the regulation and to help allocate response resources. State and local governments may use the data, which are not generally available elsewhere, and can greatly assist local emergency preparedness planning efforts. The EPA reviews all submitted FRPs and must approve FRPs for those facilities whose discharges may cause significant and substantial harm to the environment to ensure that facilities believed to pose the highest risk have planned for adequate resources and procedures to respond to oil discharges (See 40 CFR 112.20(f)(3) for further information about the criteria for significant and substantial harm.). No information collected under the FRP rule is expected to be confidential. One of the criteria necessary for information to be classified as “proprietary business information” (40 CFR 2.208) is that a business must show that it has previously taken reasonable measures to protect the confidentiality of the information and that it intends to continue to take such measures. EPA provides no assurances of confidentiality to facility owners or operators when they file their FRPs.
The burden estimates, numbers and types of respondents, wage rates and unit and total costs for this ICR renewal will be revised and updated, if needed, during the 60-day comment period while the ICR Supporting Statement is undergoing review at OMB.
Farm Credit Administration Board, Farm Credit Administration.
Notice, regular meeting.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. Sec. 552b(e) (1)), of the forthcoming regular meeting of the Farm Credit Administration Board.
The regular meeting of the Board will be held November 18, 2021, from 9:00 a.m. until such time as the Board may conclude its business.
To observe the open portion of the virtual meeting, go to
Ashley Waldron, Secretary to the Farm Credit Administration Board (703) 883-4009. TTY is (703) 883-4056.
Instructions for attending the virtual meeting: This meeting of the Board will be open to the public, and parts will be closed. If you wish to observe, at least 24 hours before the meeting, go to
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, 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 renewal of the existing information collection described below (OMB Control No. 3064-0072).
Comments must be submitted on or before January 10, 2022.
Interested parties are invited to submit written comments to
•
•
•
•
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,
1.
The Federal Deposit Insurance Act (12 U.S.C. Section 1819) empowers the FDIC to enter into contracts using private sector contractors to provide goods or services. The Act also provides that the FDIC may promulgate policies and procedures to administer the powers granted to it, including the power to enter into contracts. Pursuant to such policies, the Acquisition and Corporate Services Branch of the FDIC's Division of Administration has developed forms and clauses to facilitate the procurement of goods and services from private sector contractors. The information collected through these forms and clauses fall under the definition of collection of information under the Paperwork Reduction Act of 1995 (PRA).
During the review of the renewal of this Acquisition Services Information Requirements information collection, FDIC determined that portions of the PRA burdens that are currently under the information collection entitled
As described above, this ICR adds to OMB No. 3064-0072 the burdens involved with the preparation and submission of applications to participate in FDIC-sponsored or co-sponsored prize competitions if the outcomes of those prize competitions include the possibility of entering into a contract with the FDIC. The information associated with this burden are collected from potential and actual participants (including technologists, coders, engineers and developers; consumers of financial services; consumer advocates; academics; members of trade groups and other associations; individuals connected to financial institutions, community banks, and financial and bank service and technology providers; software, data, and technology firms; and other members of the public) of those prize competitions. The FDIC collects information from respondents during both an application phase and during a proposal phase.
1.
In order for the FDIC to determine which applicants will be eligible and selected to participate in FDIC prize competitions, the FDIC will request that potential participants provide their name, contact information, address, and such other information that may be necessary to evaluate applicants' qualifications and ability to participate in the event as well as to match the applicants' anticipated role to the needs of the competition. Applicants will also be asked to acknowledge the terms and conditions of participating in the prize competition. Based on their experience with previous prize competitions, FDIC estimates that respondents will spend, on average, one hour to prepare and submit an application.
2.
Based on experience with previous prize competitions, FDIC expects that respondents will spend, on average, 60 hours to prepare and submit a proposal. Thus, for the line item Prize Competition—Proposal, FDIC estimates a time burden of 60 hours per response.
As described above, this ICR transfers the burdens that contain the possibility of entering into a contract with the FDIC from OMB No. 3064-0212 to OMB No. 3064-0072. The information associated with this burden are collected from innovators who are invited to voluntarily propose time-limited pilot programs. The program is typically conducted in four phases, with a declining number of companies advancing at each phase. The FDIC provides fixed monetary awards for the successful completion of some of these phases. In order to evaluate potential contractors, the FDIC collects information from respondents twice: During an application phase and during a proposal phase.
FDIC believes that the hourly burden for preparing concept papers to be similar to that of RFPs. However, the applications for pilot programs are usually more extensive than the average RFP. Based on the hourly burden estimated for RFPs, FDIC estimates that each application will take 20 hours to prepare and submit. Thus, for the line item Innovation Pilot Program—Application, FDIC estimates a time burden of 20 hours per response.
FDIC believes that, given the iterative nature of the RPP process, it is likely
86 FR 60816.
Wednesday, November 10, 2021 at 10:00 a.m., virtual meeting.
The Open Meeting will begin at 1:00 p.m.
Judith Ingram, Press Officer; Telephone: (202) 694-1220.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments, relevant information, or documents regarding the agreement to the Secretary by email at
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 Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington DC 20551-0001, not later than November 26, 2021.
1.
Federal Trade Commission.
Proposed consent agreement; request for comment.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis of Proposed Consent Orders to Aid Public Comment describes both the allegations in the complaint and the terms of the consent orders—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before December 10, 2021.
Interested parties may file comments online or on paper, by following the instructions in the Request for Comment part of the
Stuart Hirschfeld (206-220-4484) and Danica Noble (206-220-5006), Northwest Regional Office, Federal Trade Commission, 915 2nd Avenue, Seattle, WA 98104.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis of Agreement Containing Consent Orders to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC website at this web address:
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before December 10, 2021. Write “In the Matter of DaVita, Inc. and Total Renal Care, Inc.; File No. 211 0013” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the
Due to protective actions in response to the COVID-19 pandemic and the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the
If you prefer to file your comment on paper, write “In the Matter of DaVita, Inc. and Total Renal Care, Inc.; File No. 211 0013” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580; or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will be placed on the publicly accessible website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC website at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Order (“Consent Agreement”) with DaVita, Inc., through its wholly-owned subsidiary, Total Renal Care, Inc. (“DaVita”). The proposed Consent Agreement is intended to remedy the anticompetitive effects that would likely result from DaVita's proposed acquisition (“Proposed Acquisition”) of all dialysis clinics owed by the University of Utah (“University”).
Pursuant to an Asset Purchase Agreement dated September 22, 2021, DaVita proposes to acquire all 18 dialysis clinics from the University in a non-HSR-reportable transaction. DaVita is the largest provider of dialysis services in the United States and the University is an academic and public research institution in the State of Utah. The 18 dialysis clinics extend from the southeast corner of Nevada to the southern part of Idaho. The Commission alleges in its Complaint that the Proposed Acquisition if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the FTC Act, as amended, 15 U.S.C. 45, by reducing competition and increasing concentration in outpatient dialysis services provided in the Provo, Utah market.
The proposed Consent Agreement will remedy the alleged violations by preserving competition that would otherwise be eliminated by the Proposed Acquisition. Under the terms of the Consent Agreement, DaVita is
The Commission's Complaint alleges the relevant line of commerce is the provision of outpatient dialysis services. Patients receiving dialysis services have end stage renal disease (“ESRD”), a chronic disease characterized by a near total loss of function of the kidneys and fatal if not treated. Many ESRD patients have no alternative to outpatient dialysis treatment because they are not viable home dialysis or transplant candidates (or they are waiting for a transplant for multiple years, during which time they must still receive dialysis treatment). Treatments are usually performed three times per week for sessions lasting between three and four hours. According to the United States Renal Data System, there were over 555,000 ESRD dialysis patients in the United States in 2018.
The Commission's Complaint also alleges the relevant geographic market in which to assess the competitive effects of the Proposed Acquisition is the greater Provo, Utah area. Specifically, the market is centered on Provo, Utah and extends north to Orem, Utah and south to Payson, Utah. The market is defined by the distance ESRD patients will travel to receive reoccurring treatments. Because ESRD patients are often suffering from multiple health problems and may require assistance traveling to and from the dialysis clinic, patients cannot travel long distances to receive treatment. Accordingly, most patients are unwilling or unable to travel more than 30 minutes or 30 miles for treatment, although travel times and distances may vary by location.
Dialysis providers seek to attract patients by competing on quality of services. To some extent, the providers also compete on price. Although Medicare eventually will cover all ESRD patients' dialysis costs, there is a 30-month transition period where commercially insured patients' costs are covered by their insurers, which compensate the providers at competitively negotiated rates.
In the greater Provo market, there are only three providers: The University (which has three clinics), DaVita (four clinics) and Fresenius Medical Care (one clinic). Therefore, the University and DaVita directly and substantially compete in the relevant market as the two largest providers, and DaVita would own seven of the eight clinics in the region. The Proposed Acquisition would eliminate competition between DaVita and The University in the relevant market for outpatient dialysis services, increasing the ability to unilaterally raise prices to third-party payers and decreasing the incentive to improve the quality of services provided to patients.
Entry into the outpatient dialysis services market in the greater Provo, Utah area would not be likely, timely, or sufficient in magnitude, character, and scope to deter or counteract the anticompetitive effects of the Proposed Acquisition. The most significant barrier to entry is contracting a nephrologist with an established referral base to serve as the clinic's medical director. The Department of Health and Human Services requires each dialysis clinic have a nephrologist as a medical director. Locating a nephrologist is difficult because clinics typically enter into exclusive contractual arrangements with a nephrologist who is paid a medical director fee. Finding patients may also be difficult if the nephrologist does not have local ties, as most nephrologists typically refer their patients to the clinic where they serve as medical director. Moreover, the area itself must have a low penetration of dialysis clinics and a high ratio of commercial to Medicare patients to attract entry.
Section II of the Proposed Order requires that DaVita divest the three University clinics in the greater Provo market to SRS, including all of the assets necessary for SRS to independently and successfully operate the clinics, which include, among other things, all leases for real property, all medical director contracts, and a license for each clinics' policies and procedures.
Section IV of the Proposed Order requires that DaVita provide transition services to SRS for up to one year, and Section V requires DaVita to provide assistance to SRS in hiring the employees at the divested clinics and to refrain from soliciting those employees for 180 days. In addition, Section V prohibits DaVita from entering into or enforcing non-compete agreements with any University nephrologist, except to prevent a medical director under a contract with DaVita from simultaneously serving as a medical director at a clinic operated by a competitor. Section V also prohibits DaVita from entering into any non-solicitation agreement with SRS that would prevent SRS from soliciting DaVita's employees for hire.
Section VI of the Proposed Order, along with the Order to Maintain Assets, requires that DaVita take such actions as are necessary to maintain the full economic viability, marketability, and competitiveness of the divested clinics and their assets. Section VIII provides for the appointment of a Monitor to oversee the divestiture.
Section X of the Proposed Order requires DaVita to obtain prior approval from the Commission for any future acquisition of any ownership interests in any dialysis clinic in Utah. With regard to transactions involving clinics in multiple states, such prior approval only applies to the clinics in Utah.
The Commission does not intend this analysis to constitute an official interpretation of the proposed Order or to modify its terms in any way.
By direction of the Commission.
Today, the Commission announces a consent order to settle allegations that the proposed acquisition of the dialysis business of the University of Utah Health (“University”) by Total Renal Care, Inc., a wholly-owned subsidiary of DaVita Inc. (“DaVita”), may substantially lessen competition in the market for outpatient dialysis services in the greater Provo, Utah area. I support the outcome but believe two aspects of the consent order warrant discussion so that my support is not misconstrued. Those two sets of provisions relate to prior approval and non-compete agreements. I then highlight a third provision—a ban on no-poach agreements—in light of the ongoing dialogue regarding whether antitrust
First, DaVita is required to receive prior approval from the Commission before acquiring any new ownership interest in a dialysis clinic in Utah. The Commission rescinded the 1995 Policy Statement Concerning Prior Approval and Prior Notice (“1995 Policy”) on July 21, 2021. I dissented from this rescission for three reasons: The 1995 Policy was put in place to prevent resource-intensive and vindictive litigation; it preserved the use of prior approval provisions in appropriate circumstances; and the majority did not provide new guidance explaining how these provisions would be used following rescission of the 1995 Policy.
Because I believe the 1995 Policy provided sound guidance on the appropriate use of prior approval provisions, I will assess the propriety of the prior approval provision in this matter against that touchstone. The 1995 Policy noted prior approval is most likely appropriate where there is a credible risk a company engaged in an anticompetitive merger would attempt the same or approximately the same merger in the future.
Against this backdrop, a prior approval provision is appropriate here. Specifically, there is a credible risk DaVita will attempt to acquire additional dialysis facilities in the same general area in which divestiture has been ordered. But to be clear, my vote in favor of this consent should not be construed as support for the liberal use of prior approval provisions foreshadowed by the Commission's majority when it rescinded the 1995 Policy.
Second, the order contains provisions that prohibit DaVita from enforcing non-compete agreements in the University of Utah nephrologists' medical director contracts.
While I disagree with that perspective,
The order contains an anti-no-poach provision that prevents DaVita from entering into any agreement that would restrict the divestiture buyer from soliciting DaVita's employees. I highlight this provision because some critics have asserted antitrust enforcement ignores competition for labor as an input.
With respect to the instant matter, DaVita and its former CEO were recently indicted for agreeing with competitors to refrain from recruiting one another's employees.
Office of Government Ethics (OGE).
Notice of Modification of Four Internal Systems of Records and Rescindment of One Internal System of Records.
The US. Office of Government Ethics (OGE) proposes to revise four and rescind one of its existing internal systems of records under the Privacy Act.
The system of records to be rescinded is OGE/INTERNAL-2, which covers telephone call detail records that were used to verify employee telephone usage and to resolve billing discrepancies.
The four systems of records to be revised are the following:
• OGE/INTERNAL-1 Pay, Leave and Travel Records, which contains records related to OGE employees' pay, leave, and travel, including information regarding leave accrual rate, usage, and balances, salary withholdings, travel expenses, and usage of the transit fare subsidy program;
• OGE/INTERNAL-3 Grievance Records, which contains records relating to grievances filed by OGE employees;
• OGE/INTERNAL-4 Computer Systems Activity and Access Records, which contains information on the use of official email systems, user access to OGE's computer networks, and records related to the verification or authorization of an individual's access to systems, files, or applications; and
• OGE/INTERNAL-5 Employee Locator and Emergency Notification Records, which contains information regarding the organizational location, telephone extension, and hours of duty of OGE employees, as well as their personal contact information and the name, relationship, and telephone number of employees' emergency contacts.
The revisions and rescindment will be effective on November 10, 2021, subject to a 30-day period in which to comment on the new routine uses, described below. Please submit any comments by December 10, 2021. The new routine uses will be effective on that date.
Comments may be submitted to OGE by any of the following methods:
Jennifer Matis at the U.S. Office of Government Ethics; telephone: 202-482-9216; TTY: 800-877-8339; FAX: 202-482-9237; Email:
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, this document provides public notice that OGE is proposing to revise and update the OGE/INTERNAL-1,-3,-4, and -5 systems of records in several respects, and rescind OGE/INTERNAL-2, Telephone Call Detail Records.
First, OGE proposes to rescind one system of records that is no longer in use by OGE, OGE/INTERNAL-2, Telephone Call Detail Records. OGE no longer maintains these records and has
Second, OGE proposes to amend OGE/INTERNAL-1 Pay, Leave, and Travel Records, OGE/INTERNAL-3 Grievance Records, OGE/INTERNAL-4 Computer Systems Activity and Access Records, and OGE/INTERNAL-5 Employee Locator and Emergency Notification Records by updating the system locations, system managers, records access procedures, and notification procedures, in accordance with OGE's current organizational structure.
Third, OGE proposes to add two additional routine uses to OGE/INTERNAL-1 Pay, Leave, and Travel Records, OGE/INTERNAL-3 Grievance Records, OGE/INTERNAL-4, Computer Systems Activity and Access Records, and OGE/INTERNAL-5 Employee Locator and Emergency Notification Records in accordance with Office of Management and Budget guidance.
OMB Memorandum M-17-12 Preparing for and Responding to a Breach of Personally Identifiable Information (January 3, 2017) requires Federal agencies to publish routine uses to authorize disclosure of records that may reasonably be needed by a Federal agency or Federal entity in connection with breach response efforts. To satisfy the routine use requirements in OMB M-17-12, OGE proposes to add the two following routine uses to each of the four systems of records described above:
To appropriate agencies, entities, and persons when: (1) OGE suspects or has confirmed that there has been a breach of the system of records; (2) OGE has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the agency (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 OGE's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
To another Federal agency or Federal entity, when OGE 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.
Fourth, OGE proposes to update its standard routine uses for all four revised SORNS. It proposes to combine and update the routine uses pertaining to litigation in OGE/INTERNAL-1 Pay, Leave, and Travel Records, OGE/INTERNAL-3 Grievance Records, OGE/INTERNAL-4, Computer Systems Activity and Access Records, and OGE/INTERNAL-5 Employee Locator and Emergency Notification Records in accordance with OMB and Department of Justice guidance and applicable case law. The remaining routine uses have been redesignated accordingly. It also proposes adding a routine use for reporting violations or potential violations of civil or criminal law or regulation to the SORNs that do not currently have such a routine use and making the wording consistent among the SORNs that do currently have it. Finally, OGE proposes to modify in accordance with OMB guidance the routine uses pertaining to congressional requests for assistance in the three systems that have such a routine use.
Fifth, OGE proposes to modify OGE/INTERNAL-1 Pay, Leave, and Travel Records to include records relating to requests for reasonable accommodations pursuant to the Rehabilitation Act of 1973 and Title VII of the Civil Rights Act. These records are similar in nature to those currently covered by the system and are collected and maintained according to similar procedures. OGE further proposes to change the system name to OGE/INTERNAL-1 Pay, Leave, Travel, and Reasonable Accommodation Records.
Accordingly, OGE publishes the following notice of rescindment and revisions:
OGE/INTERNAL-2, Telephone Call Detail Records
68 FR 3097.
OGE/INTERNAL-1, Pay, Leave, Travel, and Reasonable Accommodation Records.
Unclassified.
Office of Government Ethics, Suite 500, 1201 New York Avenue NW, Washington, DC 20005-3917.
Deputy Director for Compliance, Office of Government Ethics, Suite 500, 1201 New York Avenue NW, Washington, DC 20005-3917, email:
5 U.S.C. 5525; 5 U.S.C. app. (Ethics in Government Act of 1978); 44 U.S.C. 3101, 3102; 29 U.S.C. 701
These records are used to administer the pay, leave, and travel requirements of the Office of Government Ethics, including the administration of the transit fare subsidy program. The records are also used to collect and maintain records on employees who request or receive reasonable accommodation as required by the Rehabilitation Act of 1973 and Title VII of the Civil Rights Act.
Current employees of the Office of Government Ethics. The records may be retained after an employee leaves the Office of Government Ethics.
This system contains various records relating to pay, leave, travel and requests for reasonable accommodations pursuant to the Rehabilitation Act of 1973 and Title VII of the Civil Rights Act. This includes information such as: Name; date of birth; social security number; home address; grade; employing organization; disability status, religious affiliation, accommodation requested and/or granted, timekeeper number; salary; pay plan; number of hours worked; leave accrual rate, usage, and balances; Civil Service Retirement and Federal Employees Retirement System contributions; FICA withholdings; Federal, state, and local tax withholdings; Federal Employee's Group Life Insurance withholdings; Federal Employee's Health Benefits withholdings; charitable deductions; allotments; garnishment documents; travel expenses; and information on the leave transfer program and fare subsidy program.
Information in this system of records is obtained from:
a. The individual to whom the record pertains.
b. Office of Government Ethics officials responsible for pay, leave, and travel requirements.
c. Other official personnel documents of the Office of Government Ethics.
a. To disclose pertinent information to the appropriate Federal, State, or local agency responsible (hereinafter “responsible agency”) for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, when the record either alone or in conjunction with other information indicates a violation or potential violation of civil or criminal law or regulation.
b. To disclose information when OGE determines that that the records are arguably relevant to a proceeding before a court, grand jury, or administrative or adjudicative body; or in a proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
c. To disclose information to the National Archives and Records Administration or the General Services Administration in records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
d. To disclose information to the Office of Management and Budget at any stage in the legislative coordination and clearance process in connection with private relief legislation as set forth in OMB Circular No. A-19.
e. To disclose information to a Member of Congress or a congressional office in response to an inquiry made on behalf of, and at the request of, an individual who is the subject of the record.
f. To disclose information to contractors, grantees, experts, consultants, detailees, and other non-OGE employees performing or working on a contract, service, or other assignment for the Federal Government, when necessary to accomplish an agency function related to this system of records.
g. To disclose information to the Department of Labor in connection with a claim filed by an employee for compensation due to a job-connected injury or illness.
h. To disclose information to the Social Security Administration (SSA) and the Department of the Treasury as required in accordance with their authorized functions, including Federal Insurance Collections Act withholding and benefits for the SSA and the issuance of paychecks and savings bonds for the Treasury.
i. To disclose information to State offices of unemployment compensation.
j. To disclose information to Federal Employees Group Life Insurance or Health Benefits carriers in connection with survivor annuity or health benefits claims or records reconciliations.
k. To disclose information to the Internal Revenue Service and State and local tax authorities.
l. To disclose information to any source from which additional information is requested relevant to an OGE determination concerning an individual's pay, leave, or travel expenses, to the extent necessary to identify the individual, inform the source of the purpose(s) of the request, and to identify the type of information requested.
m. To disclose information to a Federal agency, in response to its request in connection with the hiring or retention of an employee, the issuance of a security clearance, the conducting of a suitability or security investigation of an individual, 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.
n. To disclose information to the authorized employees of another Federal agency that provides the Office of Government Ethics with manual and automated assistance in processing pay, leave, and travel.
o. To disclose information to officials of the Office of Special Counsel, Office of Personnel Management, Federal Labor Relations Authority, Merit Systems Protection Board or the Equal Employment Opportunity Commission when requested in the performance of their authorized duties, including respectively in connection with cases and appeals, special studies of the civil service and other merit systems, review of personnel matters and practices, investigations of alleged or possible prohibited personnel and discrimination practices, Hatch Act matters, whistleblower protections, compliance with employee selection procedures and investigations of allegations of unfair labor practices or matters before the Federal Service Impasses Panel.
p. To disclose information in compliance with orders, interrogatories, and other information requests relevant to garnishment orders that OGE is required to comply with in accordance with 42 U.S.C. 659 (support garnishment) and 5 U.S.C. 5520a (commercial garnishment) to a court of competent jurisdiction, an authorized official, or to an authorized State agency as defined in 5 CFR parts 581 and 582.
q. To provide information to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
r. To disclose the names, social security numbers, home addresses, date of birth, date of hire, quarterly earnings, employer identifying information, and State of hire of employees to the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services for the purposes of locating individuals to establish paternity, establishing and modifying orders of child support, identifying sources of income, and for other child support enforcement actions as required by the Personal Responsibility and Work Opportunity Reconciliation Act, Public Law 104-193, as amended.
s. To disclose information to appropriate agencies, entities, and persons when: (1) OGE suspects or has confirmed that there has been a breach of the system of records; (2) OGE has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the agency (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 OGE's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
t. To disclose information to another Federal agency or Federal entity, when OGE 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.
These records are maintained in paper and/or electronic form.
These records are retrieved by the name, social security number, or other identifier assigned to the individual on whom they are maintained.
These records are retained in accordance with the National Archives and Records Administration General Records Schedule (GRS) as follows:
a. GRS 2.3: Employee Relations Records;
b. GRS 2.4: Employee Compensation and Benefits Records; and
c. GRS 1.1: Financial Management and Reporting Records.
Disposal of paper records is by shredding, and disposal of electronic records is by deletion.
Paper records are maintained in locked file storage areas or in specified areas to which only authorized personnel have access. Electronic records are protected from unauthorized access through password identification procedures, limited access, firewalls, and other system-based protection methods.
Individuals requesting access to this system of records must follow the procedures set forth in OGE's Privacy Act regulations at 5 CFR part 2606.
Individuals wishing to request amendment of records about themselves should contact the System Manager. Individuals must furnish the following information for their records to be located and identified:
a. Full name.
b. Social Security Number.
c. Dates of employment.
Individuals requesting amendment must also follow OGE's Privacy Act regulations regarding verification of identity and amendment of records (5 CFR part 2606).
Individuals wishing to inquire whether this system of records contains information about themselves must follow the procedures set forth in OGE's Privacy Act regulations at 5 CFR part 2606.
None.
68 FR 3097.
OGE/INTERNAL-3, Grievance Records.
Unclassified.
Office of Government Ethics, Suite 500, 1201 New York Avenue NW, Washington, DC 20005-3917.
Deputy Director for Compliance, Office of Government Ethics, Suite 500, 1201 New York Avenue NW, Washington, DC 20005-3917, email:
5 U.S.C. app. (Ethics in Government Act of 1978); 5 U.S.C. 7121; 5 CFR part 771.
These records are used to process grievances submitted by OGE employees for personal relief in a matter of concern or dissatisfaction.
Current or former OGE employees who have filed grievances under OGE's administrative grievance procedures or under a negotiated grievance procedure.
The system contains records relating to grievances filed by OGE employees under administrative procedures authorized by 5 CFR part 771, and records of negotiated grievance and arbitration systems that OGE has or may establish through negotiations with recognized labor organizations in accordance with 5 U.S.C. 7121. These files contain all documents related to the grievance, which may include statements of witnesses, reports of interviews and hearings, examiner's findings and recommendations, a copy of the original decision, and related correspondence and exhibits, employment history, arbitrator's decision or report, record of appeal to the Federal Labor Relations Authority, and a variety of employment and personnel records associated with the grievance.
Information in this system of records is obtained from:
a. The individual on whom the record is maintained.
b. Testimony of witnesses.
c. OGE officials.
d. Related correspondence from organizations or persons.
e. Union officials (if information deals with a negotiated grievance matter).
f. Department of Labor, Federal Labor Relations Authority, or arbitrators involved in the grievance (if information deals with a negotiated grievance matter).
a. To disclose pertinent information to the appropriate Federal, State, or local agency responsible (hereinafter “responsible agency”) for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, when the record either alone or in conjunction with other information indicates a violation or potential violation of civil or criminal law or regulation.
b. To disclose information when OGE determines that that the records are arguably relevant to a proceeding before a court, grand jury, or administrative or adjudicative body; or in a proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
c. To disclose information to the National Archives and Records Administration or the General Services Administration in records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
d. To disclose information to the Office of Management and Budget at any stage in the legislative coordination and clearance process in connection with private relief legislation as set forth in OMB Circular No. A-19.
e. To disclose information to a Member of Congress or a congressional office in response to an inquiry made on behalf of, and at the request of, an individual who is the subject of the record.
f. To disclose information to contractors, grantees, experts, consultants, detailees, and other non-OGE employees performing or working on a contract, service, or other assignment for the Federal Government, when necessary to accomplish an agency function related to this system of records.
g. To disclose information to any source from which additional information is required in the course of processing a grievance, to the extent necessary to identify the individual, inform the source of the purpose(s) of the request, and identify the type of information requested.
h. To disclose information to a Federal agency in response to its request in connection with the hiring or retention of an employee, the issuance of a security clearance, the conducting of a security or suitability investigation of an individual, 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 requesting the agency's decision on the matter.
i. To disclose information to officials of the Merit Systems Protection Board; the Office of Special Counsel; the Federal Labor Relations Authority; or the Equal Employment Opportunity Commission when requested in performance of their authorized duties, including respectively in connection with cases and appeals, special studies of the civil service and other merit systems, review of personnel matters and practices, investigations of alleged or possible prohibited personnel and discrimination practices, Hatch Act matters, whistleblower protections, compliance with employee selection procedures and investigations of allegations of unfair labor practices or matters before the Federal Service Impasses Panel.
j. To provide information to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
k. To provide information the Department of Labor in carrying out its functions regarding labor-management relations in the Federal service.
l. To disclose information to appropriate agencies, entities, and persons when: (1) OGE suspects or has confirmed that there has been a breach of the system of records; (2) OGE has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the agency (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 OGE's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
m. To disclose information to another Federal agency or Federal entity, when OGE 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.
These records are maintained in paper and/or electronic form.
These records are retrieved by the names of the individuals on whom they are maintained.
These records are retained in accordance with the National Archives and Records Administration General Records Schedule (GRS) 2.3 Employee Relations Records. Disposal of paper records is by shredding, and disposal of electronic records is by deletion.
Paper records are maintained in locked file storage areas or in specified areas to which only authorized personnel have access. Electronic records are protected from unauthorized access through password identification procedures, limited access, firewalls, and other system-based protection methods.
Individuals requesting access to this system of records must follow the procedures set forth in OGE's Privacy Act regulations at 5 CFR part 2606.
Review of requests from individuals seeking amendment of their records which have been the subject of an administrative, judicial, or quasi-judicial action will be limited in scope. Review of amendment requests of these records will be restricted to determining if the record accurately documents the ruling on the case, and will not include a review of the merits of the action, determination, or finding. Individuals wishing to request amendment of their records to correct factual errors should contact the OGE Office of Administration and Information Management. Individuals must furnish the following information for their records to be located and identified:
a. Name.
b. Approximate date of closing of the case and kind of action taken.
c. Organizational component involved.
Individuals requesting amendment must also follow OGE's Privacy Act regulations regarding verification of identity and amendment of records (5 CFR part 2606).
Individuals wishing to inquire whether this system of records contains information about them must follow the procedures set forth in OGE's Privacy Act regulations at 5 CFR part 2606.
None.
68 FR 3097.
OGE/INTERNAL-4, Computer Systems Activity and Access Records.
Unclassified.
Office of Government Ethics, Suite 500, 1201 New York Avenue NW, Washington, DC 20005-3917.
Chief Information Officer, Office of Government Ethics, Suite 500, 1201 New York Avenue NW, Washington, DC 20005-3917, email:
5 U.S.C. app. (Ethics in Government Act of 1978); 40 U.S.C. 1441 note.
The data in this system of records is used by OGE systems and security personnel, or persons authorized to assist these personnel, to plan and manage system services, to monitor for improper use, and to otherwise perform their official duties.
Individuals who access OGE network computers or servers, including individuals who send and receive electronic communications, access internet sites, or access system databases, files, or applications from OGE computers or who send electronic communications to OGE computers; and individuals attempting to access OGE computers or systems without authorization.
Records in this system of records may include: records on the use of OGE email systems, including the email address of the sender and receiver of the email message, subject, date, and time; records on user access to OGE's office networks; records relating to verification or authorization of an individual's access to systems, files, or applications, such as user IDs, user names, title, and agency.
Information in this system of records is obtained from:
a. Individuals who access the systems.
b. Office of Government Ethics employees and contractors responsible for managing the systems.
c. Computer activity logs and tracking systems.
a. To disclose pertinent information to the appropriate Federal, State, or local agency responsible (hereinafter “responsible agency”) for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, when the record either alone or in conjunction with other information indicates a violation or potential violation of civil or criminal law or regulation.
b. To disclose information when OGE determines that that the records are arguably relevant to a proceeding before a court, grand jury, or administrative or adjudicative body; or in a proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
c. To disclose information to the National Archives and Records Administration or the General Services Administration in records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
d. To disclose information to the Office of Management and Budget at any stage in the legislative coordination and clearance process in connection with private relief legislation as set forth in OMB Circular No. A-19.
e. To disclose information to contractors, grantees, experts, consultants, detailees, and other non-OGE employees performing or working on a contract, service, or other assignment for the Federal Government, when necessary to accomplish an agency function related to this system of records.
f. To disclose information to a Member of Congress or a congressional office in response to an inquiry made on behalf of, and at the request of, an individual who is the subject of the record.
g. To disclose information to a Federal, State, local, tribal or foreign agency, or a private contractor, in response to its request in connection with the hiring or retention of any employee, the issuance of a security clearance, the conduct of a security or suitability investigation, the reporting of an investigation on an employee, the letting of a contract, or the issuance of a grant, license, or other benefit to an employee by the agency, but only to the extent that the information disclosed is relevant and necessary to the agency's decision on the matter.
i. To disclose information to appropriate agencies, entities, and persons when: (1) OGE suspects or has confirmed that there has been a breach of the system of records; (2) OGE has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the agency (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 OGE's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
j. To disclose information to another Federal agency or Federal entity, when OGE 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.
These records are maintained in paper and/or electronic form.
These records may be retrieved by user name, user ID, email address, or other identifying search term employed, depending on the record category.
These records are retained in accordance with General Records Schedule (GRS) 3.2 Information Systems Security Records. Disposal of paper records is by shredding, and disposal of electronic records is by deletion.
These records are located in locked storage areas with controlled entry, or automated systems to which only authorized personnel have access. The use of password protection identification features and other automated data processing system protection methods also restrict access.
Individuals requesting access to this system of records must follow the procedures set forth in OGE's Privacy Act regulations at 5 CFR part 2606.
Individuals wishing to request amendment of records about themselves should contact the System Manager. Individuals must furnish the following information for their records to be located and identified:
a. Full name.
b. Assigned computer location.
c. Description of information being sought (including the time frame during which the record(s) may have been generated).
Individuals requesting amendment must also follow OGE's Privacy Act regulations regarding verification of identity and amendment of records (5 CFR part 2606).
Individuals wishing to inquire whether this system of records contains information about themselves must follow the procedures set forth in OGE's Privacy Act regulations at 5 CFR part 2606.
None.
68 FR 3097.
OGE/INTERNAL-5, Employee Locator and Emergency Notification Records.
Unclassified.
Office of Government Ethics, Suite 500, 1201 New York Avenue NW, Washington, DC 20005-3917.
Deputy Director for Compliance, Office of Government Ethics, Suite 500, 1201 New York Avenue NW, Washington, DC 20005-3917, email:
5 U.S.C. app. (Ethics in Government Act of 1978); 44 U.S.C. 3101.
Information is collected for this system in order to identify an individual for OGE officials to contact, should an emergency of a medical or other nature involving the employee occur while the employee is on the job. Also, these records may be used by authorized OGE personnel to contact individuals working from home or at an authorized alternative worksite or, on infrequent occasions, to contact individuals absent from work about work-related issues.
Current employees of the Office of Government Ethics.
This system contains information regarding the organizational location, telephone extension, and hours of duty of individual OGE employees. The system also contains the home address and telephone number of the employee and the name, relationship, and telephone number of an individual or individuals to contact in the event of a medical or other emergency involving the employee. The system contains an additional freeform “note” field for personal medical information for employees who choose to voluntarily complete it.
Information in this system of records is obtained from:
a. The individual on whom the record is maintained.
a. To disclose information when OGE that that the records are arguably relevant to a proceeding before a court, grand jury, or administrative or adjudicative body; or in a proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
c. To disclose information to appropriate agencies, entities, and persons when: (1) OGE suspects or has confirmed that there has been a breach of the system of records; (2) OGE has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the agency (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 OGE's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
d. To disclose information to another Federal agency or Federal entity, when OGE 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.
e. To disclose pertinent information to the appropriate Federal, State, or local agency responsible (hereinafter “responsible agency”) for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, when the record either alone or in conjunction with other information indicates a violation or potential violation of civil or criminal law or regulation.
Records are maintained in paper and/or electronic form.
These records are retrieved by the name of the individual on whom they are maintained.
These records are retained in accordance with the National Archives and Records Administration General Records Schedule (GRS) 5.3: Continuity and Emergency Planning Records. Disposal of paper records is by shredding, and disposal of electronic records is by deletion.
Paper records are maintained in locked file storage areas or in specified areas to which only authorized personnel have access. Electronic records are maintained in a secured electronic system accessible only to on-site OGE employees. An individual OGE employee has access only to his or her own record. In addition, individual records in the system are available to authorized OGE personnel whose duties require access.
Individuals requesting access to this system of records must follow the procedures set forth in OGE's Privacy Act regulations at 5 CFR part 2606.
OGE employees have full access to and complete control over their individual record and may amend information at any time, or they may contact the System Manager. Individuals must furnish the following information for their records to be located and identified:
a. Full name.
Individuals requesting amendment must also follow OGE's Privacy Act regulations regarding verification of identity and amendment of records (5 CFR part 2606).
Individuals wishing to inquire whether this system of records contains information about themselves must follow the procedures set forth in OGE's Privacy Act regulations at 5 CFR part 2606.
None.
68 FR 3097.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by January 10, 2022.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
While there are no changes to the CMS-R-144 form, we propose non-substantive verbiage updates to the corresponding CMR-R-144 File Format and corresponding Data Definitions. Form CMS-368 has been revised to include a signature/date line for the submitter to confirm that the information provided is accurate. We have also updated the entire CMS-368 form to a fillable format. We also propose to remove the one-time system update burden that was added in the last iteration of this collection of information request.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by December 10, 2021.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at:
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Office of Child Support Enforcement, Administration for Children and Families, HHS.
Request for public comment.
The Office of Child Support Enforcement (OCSE), Administration for Children and Families (ACF) requests a 3-year extension of the State Self-Assessment Review and Report with minor revisions. The information collected in the report assists state child support agencies and OCSE in determining whether the agencies meet federal child support performance requirements. The current Office of Management and Budget (OMB) approval expires on April 30, 2022.
Copies of the proposed collection of information can be obtained and comments may be forwarded by emailing
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice of supplemental award.
HRSA provided supplemental funding to the Association of Clinicians for the Underserved (ACU), a currently funded National Training and Technical Assistance Partner award recipient. ACU leverages data tools and learning collaboratives to enhance current national training and technical
Tracey Orloff, Strategic Partnerships Division Director in the Office of Quality Improvement, at
ACU has unique experience developing learning collaboratives and can leverage their Solutions, Training, and Assistance for Recruitment and Retention Center and the Health Center Recruitment & Retention Data Profile Dashboard to advance in-scope training and technical assistance activities focused on enhancing health centers' ability to recruit, retain, and upskill their workforce. Supplemental funding is critical to ensure the timely expansion of the Solutions, Training, and Assistance for Recruitment and Retention Center and dashboard activities that enable health centers to conduct workforce data analysis, develop strategic plans, and enhance recruitment processes to attract and retain providers. ACU has the organizational capacity, expertise, and partnerships with Primary Care Associations, Health Center Controlled Networks, and other National Training and Technical Assistance Partners in place to immediately disseminate resources, tools, and strategies to improve workforce shortages at health centers.
The Indian Health Service (IHS) is accepting applications for grants for the 4-in-1 Grant Program. This program is authorized under the Snyder Act, 25 U.S.C. 13; the Transfer Act, 42 U.S.C. 2001(a); and Title V of the Indian Health Care Improvement Act (IHCIA), at 25 U.S.C. 1653(c)-(e) (authorizing grants for Health Promotion and Disease Prevention (HP/DP) services, Immunization services, and Mental Health services), and 1660a (authorizing grants for Alcohol and Substance Abuse related services). This program is described in the Assistance Listings located at
In the late 1960s, Urban Indian community leaders began advocating at the local, state, and Federal levels to address the unmet health care needs of Urban Indians, and requested health care services and programs. These efforts resulted in an increase of preventative, medical, and behavioral health services, but there was growing recognition of challenges preventing Urban Indians in seeking health care services. To address these barriers, advocacy focused on the development of culturally-appropriate activities that were unique to the social, cultural, and spiritual needs of American Indians and Alaska Natives residing in urban settings. Programs developed at that time were staffed by volunteers in storefront settings, with limited budgets, offering primary care and outreach and referral services.
In response to efforts of the Urban Indian community leaders, Congress appropriated funds in 1966 through the IHS for a pilot urban clinic in Rapid City, South Dakota. In 1973, Congress appropriated funds to study unmet Urban Indian health needs in Minneapolis, Minnesota. The findings of this study documented cultural, economic, and access barriers to health care and led to congressional appropriations to support emerging Urban Indian clinics in several Bureau of Indian Affairs relocation cities,
The purpose of this program is to ensure the highest possible health status for Urban Indians. Funding will be used to support the 4-in-1 health program objectives. These programs are integral components of the IHS health care delivery system. Funds from this effort will ensure that comprehensive, culturally acceptable personal and public health services are available and accessible to Urban Indians.
Each grantee shall provide health care services under this award only to eligible Urban Indians living within the urban center in which the Urban Indian Organization (UIO) is situated. An “Urban Indian” eligible for services, as codified at 25 U.S.C. 1603(13), (27), and (28), includes any individual who:
1. Resides in an urban center, which is any community that has a sufficient Urban Indian population with unmet health needs to warrant assistance under the IHCIA, as determined by the Secretary, Health and Human Services (HHS), and who meets one or more of the following criteria:
a. Irrespective of whether he or she lives on or near a reservation, is a member of a Tribe, band, or other organized group of Indians, including:
i. Those Tribes, bands, or groups terminated since 1940, and
ii. those recognized now or in the future by the state in which they reside, or
b. Is a descendant, in the first or second degree, of any such member described in 1.a.; or
c. Is an Eskimo, or Aleut, or other Alaska Native; or
d. Is a California Indian;
1. Is a descendant of an Indian who was residing in the State of California on June 1, 1852;
2. Holds trust interests in public domain, national forest, or Indian reservation allotments; or
3. Is listed on the plans for distribution of assets of California Rancherias and reservations under the Act of August 18, 1958 (72 Stat. 619), or is the descendant of such an individual.
e. Is considered by the Secretary of the Department of the Interior to be an Indian for any purpose; or
f. Is determined to be an Indian under regulations pertaining to Urban Indian health that are promulgated by the Secretary, HHS.
Each grantee is responsible for taking reasonable steps to confirm that the individual is eligible for IHS services as an Urban Indian.
The total funding identified for fiscal year (FY) 2022 is approximately $8.5 million. Individual award amounts for the first budget year are anticipated to be between $160,000 and $650,000. New applicants may apply for funding up to $200,000; current 4-in-1 grantees may apply for funding up to the amount approved in the last noncompeting award and must demonstrate that they have complied with previous terms and conditions of their award. The funding available for competing and subsequent continuation awards issued under this announcement is subject to the availability of appropriations and budgetary priorities of the Agency. The IHS is under no obligation to make awards that are selected for funding under this announcement.
Approximately 33 awards will be issued under this program announcement.
The period of performance is for 5 years.
• To be eligible for this FY 2022 funding opportunity, an applicant must be an Urban Indian organization, as defined by 25 U.S.C. 1603(29), that is currently administering a contract or receiving a grant pursuant to 25 U.S.C. 1653. The term “Urban Indian organization” means a nonprofit corporate body situated in an urban center, governed by an Urban Indian controlled board of directors, and providing for the maximum participation of all interested Indian groups and individuals, which body is capable of legally cooperating with other public and private entities for the purpose of performing the activities described in 25 U.S.C. 1653(a). Applicants must provide proof of nonprofit status with the application,
The program office will notify any applicants deemed ineligible.
Please refer to Section IV.2 (Application and Submission Information/Subsection 2, Content and Form of Application Submission) for additional proof of applicant status documents required, such as proof of nonprofit status.
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
Applications with budget requests that exceed the highest dollar amount outlined under Section II Award Information, Estimated Funds Available, or exceed the period of performance outlined under Section II Award Information, Period of Performance, are considered not responsive and will not be reviewed. The Division of Grants Management (DGM) will notify the applicant.
The UIO must submit a letter of support from their organization's board of directors.
Organizations claiming nonprofit status must submit a current copy of the 501(c)(3) Certificate with the application.
The application package and detailed instructions for this announcement are available at
Please direct questions regarding the application process to Mr. Paul Gettys at (301) 443-2114 or (301) 443-5204.
Mandatory documents for all applicants include:
• Abstract (one page) summarizing the project.
• Application forms:
1. SF-424, Application for Federal Assistance.
2. SF-424A, Budget Information—Non-Construction Programs. Each of the 4-in-1 health program areas (HP/DP, immunization, alcohol and substance abuse, and mental health), should be addressed in a separate Grant Program Function or Activity row/column of the SF-424A.
3. SF-424B, Assurances—Non-Construction Programs.
• Project Narrative (not to exceed 20 pages). See Section IV.2.A, Project Narrative for instructions.
1. Background information on the organization.
2. Statement of need, proposed scope of work, required objectives, and activities that provide a description of what the applicant plans to accomplish and evaluation and performance measurement plan.
• Budget Justification and Narrative (not to exceed five pages). See Section IV.2.B, Budget Narrative for instructions.
• Letter of Support from the UIO's Board of Directors.
• 501(c)(3) Certificate.
• Biographical sketches for all Key Personnel (not to exceed one page each).
• Contractor/Consultant proposed scope of work and letter of commitment (not to exceed one page each, if applicable).
• Disclosure of Lobbying Activities (SF-LLL), if applicant conducts reportable lobbying.
• Certification Regarding Lobbying (GG-Lobbying Form).
• Copy of current Negotiated Indirect Cost rate (IDC) agreement (required in order to receive IDC).
• Organizational Chart or written information that shows where the 4-in-1 health program areas fit into the larger organization.
• Documentation of current Office of Management and Budget (OMB) Financial Audit (if applicable).
Acceptable forms of documentation include:
1. Email confirmation from Federal Audit Clearinghouse (FAC) that audits were submitted; or
2. Face sheets from audit reports. Applicants can find these on the FAC website at
All Federal public policies apply to IHS grants and cooperative agreements. Pursuant to 45 CFR 80.3(d), an individual shall not be deemed subjected to discrimination by reason of their exclusion from benefits limited by
This narrative should be a separate document that is no more than 20 pages and must: (1) Have consecutively numbered pages; (2) use black font 12 points or larger; (3) be single-spaced; and (4) be formatted to fit standard letter paper (8
Be sure to succinctly answer all questions listed under the evaluation criteria (refer to Section V.1, Evaluation Criteria) and place all responses and required information in the correct section noted below or they will not be considered or scored. If the narrative exceeds the page limit, the application will be considered not responsive and will not be reviewed. The 20-page limit for the narrative does not include the standard forms, budget, budget justification, narrative, and/or other items.
There are three parts to the narrative: Part 1—Program Information; Part 2—Program Planning and Evaluation; and Part 3—Organizational Capacity. See below for additional details about what must be included in the narrative.
The statement of need describes the history and urban center currently served by the applicant. The statement of need also provides the facts and evidence that support the need for each of the 4-in-1 health program areas and establishes that the UIO understands the problems and can reasonably address them.
• Describe the current service gaps, including disconnection between available services and unmet needs of Urban Indians. This should include services at the UIO and in communities where Urban Indians reside.
• Describe the need for an enhanced infrastructure to increase the capacity to implement, sustain, and improve effective health care services offered to Urban Indians and any other service gaps and problems related to the need for infrastructure development within the UIO.
State the purpose, goals, and objectives of your proposed projects. Clearly state how proposed activities address the needs detailed in the statement of need. Describe fully and clearly plans to meet each of the 4-in-1 health program areas of this funding announcement. Each objective should be addressed with a corresponding time frame. Provide a work plan for year 1 budget period that details expected key activities, accomplishments, and includes responsible staff for each of the 4-in-1 health program areas.
This section of the narrative should describe efforts to collect and report project data that will support and demonstrate grant activities for each of the 4-in-1 health program areas. Grantees will be required to participate in a national evaluation of the 4-in-1 grant program. Grantees will also be required to collect and report data pertaining to activities, processes, and outcomes. Data collection activities should capture and document actions conducted throughout awarded years, including activities that will contribute to relevant project impact. This section should also describe the applicant's plan to evaluate program activities, including any practice-based and evidence-based prevention or treatment programs implemented. The evaluation plan should describe expected results and any identified metrics to support program effectiveness. Evaluation plans should incorporate questions related to outcomes and processes, including documentation of lessons learned.
• Describe in a brief narrative a plan to monitor activities under each of the 4-in-1 health program areas to demonstrate progress towards program outcomes and inform future program decisions over the 5-year project period.
• Describe proposed evaluation methods, including performance measures and other data relevant to evaluation outcomes, including intended results (
• Identify qualified professionals who will implement and administer the proposed grant activities, including progress and financial reports.
• Identify a contact person to maintain open and consistent communication with the IHS program official on any programmatic barriers to meeting the requirements of the award.
• Describe the organization's current system and ability to develop partnerships with service providers and community programs, including families and support systems of Urban Indians.
• Describe potential project partners and community resources in the urban center.
Provide a budget narrative that explains the amounts requested for each line item of the budget from the SF-424A (Budget Information for Non-Construction Programs). The budget narrative document can include a more detailed spreadsheet than is provided by the SF-424A. Each 4-in-1 health program area should have a separate budget. The budget narrative should specifically describe how each item will support the achievement of proposed objectives. Be very careful about showing how each item in the “Other” category is justified. For subsequent budget years (see Multi-Year Project Requirements in Section V.1, Application Review Information, Evaluation Criteria), the narrative should highlight the changes from the first year or clearly indicate that there are no substantive budget changes during the period of performance. Do NOT use the budget narrative to expand the project narrative.
Applications must be submitted through
If technical challenges arise and assistance is required with the application process, contact
The IHS will not acknowledge receipt of applications.
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are not allowable.
• The available funds are inclusive of direct and indirect costs.
• Only one grant may be awarded per applicant.
All applications must be submitted via
If the applicant cannot submit an application through
Once the waiver request has been approved, the applicant will receive a confirmation of approval email containing submission instructions. A copy of the written approval must be included with the application that is submitted to the DGM. Applications that are submitted without a copy of the signed waiver from the Acting Director of the DGM will not be reviewed. The Grants Management Officer of the DGM will notify the applicant via email of this decision. Applications submitted under waiver must be received by the DGM no later than 5:00 p.m. Eastern Time on the Application Deadline Date. Late applications will not be accepted for processing. Applicants that do not register for both the System for Award Management (SAM) and
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application, please contact
• Upon contacting
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through
• Please follow the instructions on
• Applicants must comply with any page limits described in this funding announcement.
• After submitting the application, the applicant will receive an automatic acknowledgment from
Applicants and grantee organizations are required to obtain a DUNS number and maintain an active registration in the SAM database. The DUNS number is a unique 9-digit identification number provided by D&B that uniquely identifies each entity. The DUNS number is site specific; therefore, each distinct performance site may be assigned a DUNS number. Obtaining a DUNS number is easy, and there is no charge. To obtain a DUNS number, please access the request service through
The Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), requires all HHS recipients to report information on sub-awards. Accordingly, all IHS grantees must notify potential first-tier sub-recipients that no entity may receive a first-tier sub-award unless the entity has provided its DUNS number to the prime grantee organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Organizations that are not registered with SAM must have a DUNS number first, then access the SAM online registration through the SAM home page at
Additional information on implementing the Transparency Act, including the specific requirements for DUNS and SAM, are available on the DGM Grants Management, Policy Topics web page at
Possible points assigned to each section are noted in parentheses. The project narrative and budget narrative should include only the first year of activities; information for multi-year projects should be included as a separate document. See “Multi-year Project Requirements” at the end of this section for more information. The project narrative should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to fully understand the project. Attachments requested in the criteria do not count toward the page limit for the project narrative. Points will be assigned to each evaluation criteria adding up to a total of 100 possible points. Points are assigned as follows:
Applications will be reviewed and scored according to the quality of responses to the required application components in Sections A-E outlined below. In developing the required sections of this application, use the instructions provided for each section, which have been tailored to this program. The application must use the five sections (Sections A-E) listed below in developing the narratives. The applicant must place the required information in the correct section or it will not be considered for review. The application will be scored according to how well the applicant addresses the requirements for each section listed below. The number of points after each section heading is the maximum number of points the Objective Review Committee (ORC) may assign to that section. Although scoring weights are not assigned to individual bullets, each bullet is assessed deriving the overall section score.
1. Identify the proposed urban center and provide demographic information
2. Based on the information and/or data currently available, document the need to implement, sustain, and improve health care services offered to Urban Indians.
3. Based on available data, describe the service gaps and other problems related to the needs of Urban Indians. Identify the source of the data. Documentation of need may come from a variety of qualitative and quantitative sources. Examples of data sources for the quantitative data that could be used are local epidemiologic data such as Tribal Epidemiology Centers or IHS Area Offices, state data from state needs assessments, and/or national data from the Substance Abuse and Mental Health Services Administration's (SAMHSA) National Survey on Drug Use and Health, or from the National Center for Health Statistics/Centers for Disease Control, and U.S. Census data (American Community Survey, etc.). This list is not exhaustive. Applicants may submit other valid data, as appropriate, for the applicant's programs.
1. Describe the purpose of the proposed project, including a clear statement of goals and objectives. The project narrative is required to address each of the 4-in-1 health program areas.
a.
b.
c.
d.
2. Describe how project activities will increase the capacity of the UIO to improve access to and quality of care for Urban Indians.
3. Describe anticipated barriers and how these barriers will be addressed.
4. Describe how the proposed project will address issues of diversity for Urban Indians, including race/ethnicity, gender, culture/cultural identity, language, sexual orientation, disability, and literacy.
5. Describe how Urban Indians may receive services for the 4-in-1 health program areas and how they will be involved in the planning and implementation of the grant.
6. Describe how the efforts of the proposed project will be coordinated with any other related Federal grants, including the IHS, Centers for Disease Control and Prevention, SAMHSA, or Health Resources and Services Administration, etc. (if applicable).
7. Provide a work plan for the first year budget period that details expected key activities, accomplishments, and includes responsible staff for each of the 4-in-1 health program areas.
Describe plans to monitor activities under each of the 4-in-1 health program areas, demonstrate progress towards program outcomes, and inform future program decisions over the 5 year project period. Applications should address the following points:
1. Describe proposed data collection efforts (performance measures and associated data) and how you will use the data to answer evaluation questions. This should include data collection method, data source, data measurement tool, identified staff for data management, and data collection timeline.
2. Identify key program partners and describe how they will participate in the implementation of the evaluation plan (
3. Describe data collection and evaluation of any proposed practice-based and/or evidence-based care programs implemented throughout awarded years.
4. Describe how evaluation findings will be used at the applicant level. Discuss how data collected (
5. Discuss any barriers or challenges expected for implementing the plan, collecting data (
1. Describe the management capability of the UIO and other participating organizations in administering similar projects.
2. Identify staff to maintain open and consistent communication with the IHS program official on any financial or programmatic barriers to meeting the requirements of the award.
3. Identify the department(s) and/or division(s) that will administer each of the 4-in-1 health program areas. Include a description of these department(s) and/or division(s), their functions, and their placement within the UIO and their direct link to management.
4. Discuss the UIO's experience and capacity to provide culturally appropriate and competent services to the community and specific populations of focus.
5. Describe the resources available for the proposed project (
6. Identify other organization(s) that will participate in the proposed project. Describe their roles and responsibilities and demonstrate their commitment to each of the 4-in-1 health program areas.
7. Describe how project continuity will be maintained if there is a change in the operational environment (
8. Provide a list of staff positions for the project and other key personnel, showing the role of each and their level of effort and qualifications for each of the 4-in-1 health program areas. Key personnel include the Chief Executive Officer or Executive Director, Chief Financial Officer, Medical Director, and Chief Information Officer.
9. Demonstrate successful project implementation for the level of effort budgeted for the project staff and other key staff.
10. Include position descriptions (upload as Other Attachments) for all key personnel. Position descriptions should not exceed one page each. Reviewers will not consider information past one page.
11. For individuals who are currently on staff, include a biographical sketch with their name (do not include personally identifiable information such as social security number or date and place of birth) for each individual that will be listed as the project staff and other key positions. Describe the experience of identified staff in each of the 4-in-1 health program areas. Upload each biographical sketch in the Other Attachments form in your
a. Personally Identifiable Information (social security number and date and place of birth);
b. Resumes; or
c. Curriculum Vitae.
1. Include a line item budget for each of the 4-in-1 health program areas for all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative for the first budget year only.
2. Provide a categorized budget for each of the 4-in-1 health program areas.
3. Applicants should ensure that the budget and budget narrative are aligned with the project narrative. The budget and budget narrative the applicant provides will be considered by reviewers in assessing the applicant's submission, along with the material in the project narrative. Questions to address include: What resources are needed to successfully carry out and manage the project? What other resources are available from the organization? Will new staff be recruited? Will outside consultants be required?
4. For any outside consultants, include the total cost broken down by activity.
5. If indirect costs are claimed, indicate and apply the current negotiated rate to the budget. Include a copy of the current negotiated IDC rate agreement in the Other Attachments form in the application workspace.
Applications must include a brief project narrative and budget (1 additional page per year) addressing the developmental plans for each additional year of the project. This attachment will not count as part of the project narrative or the budget narrative.
Additional documents can be uploaded as Other Attachments in
• Work plan, logic model, and/or timeline for proposed objectives.
• Position descriptions for key staff (not to exceed one page each).
• Biographical sketch of key staff that reflect current duties (not to exceed one page each).
• Consultant or contractor proposed scope of work and letter of commitment (not to exceed one page each) (if applicable).
• Current Indirect Cost Rate Agreement.
• Organizational chart.
• Map of area identifying project location(s).
• Additional documents to support narrative (
Each application will be prescreened for eligibility and completeness as outlined in the funding announcement. Applications that meet the eligibility criteria shall be reviewed for merit by the ORC based on evaluation criteria. Incomplete applications and applications that are not responsive to the administrative thresholds (budget limit, project period limit) will not be referred to the ORC and will not be funded. The applicant will be notified of this determination. Applicants must address all program requirements and provide all required documentation.
All applicants will receive an Executive Summary Statement from the IHS Office of Urban Indian Health Programs within 30 days of the conclusion of the ORC outlining the strengths and weaknesses of their application. The summary statement will be sent to the Authorizing Official identified on the face page (SF-424) of the application.
The Notice of Award (NoA) is the authorizing document for which funds are dispersed to the approved entities and reflects the amount of Federal funds awarded, the purpose of the grant, the terms and conditions of the award, the effective date of the award, and the budget/project period. Each entity approved for funding must have a user account in GrantSolutions in order to retrieve the NoA. Please see the Agency Contacts list in Section VII for the systems contact information.
Approved applications not funded due to lack of available funds will be held for 1 year. If funding becomes available during the course of the year, the application may be reconsidered.
Any correspondence, other than the official NoA executed by an IHS grants management official announcing to the project director that an award has been made to their organization, is not an authorization to implement their program on behalf of the IHS.
Awards issued under this announcement are subject to, and are administered in accordance with, the following regulations and policies:
A. The criteria as outlined in this program announcement.
B. Administrative Regulations for Grants:
• Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards currently in effect or implemented during the period of award, other Department regulations and policies in effect at the time of award, and applicable statutory provisions. At the time of publication, this includes 45 CFR part 75, at
• Please review all HHS regulatory provisions for Termination at 45 CFR 75.372, at
C. Grants Policy:
• HHS Grants Policy Statement, Revised January 2007, at
D. Cost Principles:
• Uniform Administrative Requirements for HHS Awards, “Cost Principles,” located at 45 CFR part 75 subpart E.
E. Audit Requirements:
• Uniform Administrative Requirements for HHS Awards, “Audit Requirements,” located at 45 CFR part 75 subpart F.
F. As of August 13, 2020, 2 CFR 200 was updated to include a prohibition on certain telecommunications and video surveillance services or equipment. This prohibition is described in 2 CFR 200.216. This will also be described in the terms and conditions of every IHS grant and cooperative agreement awarded on or after August 13, 2020.
This section applies to all recipients that request reimbursement of indirect costs (IDC) in their application budget. In accordance with HHS Grants Policy Statement, Part II-27, the IHS requires applicants to obtain a current IDC rate agreement and submit it to the DGM prior to the DGM issuing an award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate agreement is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate agreement is provided to the DGM.
Per 45 CFR 75.414(f) Indirect (F&A) costs, “any non-Federal entity (NFE) [
Electing to charge a de minimis rate of 10 percent only applies to applicants that have never received an approved negotiated indirect cost rate from HHS or another cognizant federal agency. Applicants awaiting approval of their indirect cost proposal may request the 10 percent de minimis rate. When the applicant chooses this method, costs included in the indirect cost pool must not be charged as direct costs to the grant.
Available funds are inclusive of direct and appropriate indirect costs. Approved indirect funds are awarded as part of the award amount, and no additional funds will be provided.
Generally, IDC rates for IHS grantees are negotiated with the Division of Cost Allocation at
The grantee must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in the imposition of special award provisions and/or the non-funding or non-award of other eligible projects or activities. This requirement applies whether the delinquency is attributable to the failure of the awardee organization or the individual responsible for preparation of the reports. Per DGM policy, all reports must be submitted electronically by attaching them as a “Grant Note” in GrantSolutions. Personnel responsible for submitting reports will be required to obtain a login and password for GrantSolutions. Please see the Agency Contacts list in Section VII for the systems contact information.
The reporting requirements for this program are noted below.
Program progress reports are required quarterly. The progress reports are due within 30 days after the reporting period ends (specific dates will be listed in the NoA Terms and Conditions). Grantees have the option to use the 4-in-1 Grant Reporting Template instead of developing their own format. The template is available at the 4-in-1 Grant web page at
The quarterly Progress Report shall demonstrate actual goals and objectives were met against established target measures, a summation of the program approach, and report on integrated cultural interventions and implementation of practice-based and/or evidence-based approaches, including a concise summary narrative of the program's impact on the Urban Indian service population. If applicable, program changes for the next reporting period may be included.
To comply with statutory requirements consistent with 25 U.S.C. 1653(a), 1655, and 1657(a), the Progress Reporting Template includes a section for the grantee to report their unmet needs or the grantee may use their own format to report their unmet needs. This includes information gathered by the grantee to: (1) Identify gaps between unmet health needs of Urban Indians and the resources available to meet such needs; and (2) make recommendations to the Secretary and Federal, state, local, and other resource agencies on methods of improving health services to meet the needs of Urban Indians.
The final end of year and 4th quarter report must be submitted within 90 days of expiration of the period of performance.
Federal Cash Transaction Reports are due 30 days after the close of every calendar quarter to the Payment Management Services at
Federal Financial Reports are due 30 days after the end of each budget period, and a final report is due 90 days after the end of the Period of Performance. Grantees are responsible and accountable for reporting accurate information on all required reports: The Progress Reports, the Federal Cash Transaction Report, and the Federal Financial Report.
The GPRA data period shall be the Federal fiscal year of October 1 through September 30. GPRA data shall be submitted electronically to the National Data Warehouse (NDW). All GPRA data submitted shall be verifiable and based upon criteria set forth for each GPRA
UDS reporting period shall be by calendar year. The UDS reports shall be due in January for the previous calendar year.
Quarterly Immunization Reports are required and submitted to the online National Immunization Reporting System (NIRS) (
This award may be subject to the Transparency Act sub-award and executive compensation reporting requirements of 2 CFR part 170.
The Transparency Act requires the OMB to establish a single searchable database, accessible to the public, with information on financial assistance awards made by Federal agencies. The Transparency Act also includes a requirement for recipients of Federal grants to report information about first-tier sub-awards and executive compensation under Federal assistance awards.The IHS has implemented a Term of Award into all IHS Standard Terms and Conditions, NoAs, and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 sub-award obligation threshold met for any specific reporting period.
For the full IHS award term implementing this requirement and additional award applicability information, visit the DGM Grants Management website at
Should you successfully compete for an award, recipients of Federal financial assistance (FFA) from HHS must administer their programs in compliance with Federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, disability, age and, in some circumstances, religion, conscience, and sex (including gender identity, sexual orientation, and pregnancy). This includes ensuring programs are accessible to persons with limited English proficiency and persons with disabilities. The HHS Office for Civil Rights provides guidance on complying with civil rights laws enforced by HHS. Please see
• Recipients of FFA must ensure that their programs are accessible to persons with limited English proficiency. For guidance on meeting your legal obligation to take reasonable steps to ensure meaningful access to your programs or activities by limited English proficiency individuals, see
• For information on your specific legal obligations for serving qualified individuals with disabilities, including reasonable modifications and making services accessible to them, see
• HHS funded health and education programs must be administered in an environment free of sexual harassment, see
• For guidance on administering your program in compliance with applicable Federal religious nondiscrimination laws and applicable Federal conscience protection and associated anti-discrimination laws, see
The IHS is required to review and consider any information about the applicant that is in the FAPIIS at
As required by 45 CFR part 75 Appendix XII of the Uniform Guidance, NFEs are required to disclose in FAPIIS any information about criminal, civil, and administrative proceedings, and/or affirm that there is no new information to provide. This applies to NFEs that receive Federal awards (currently active grants, cooperative agreements, and procurement contracts) greater than $10,000,000 for any period of time during the period of performance of an award/project.
As required by 2 CFR part 200 of the Uniform Guidance, and the HHS implementing regulations at 45 CFR part 75, the IHS must require an NFE or an applicant for a Federal award to disclose, in a timely manner, in writing to the IHS or pass-through entity all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award.
All applicants and recipients must disclose in writing, in a timely manner, to the IHS and to the HHS Office of Inspector General all information related to violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award. 45 CFR 75.113.
Disclosures must be sent in writing to: U.S. Department of Health and Human Services, Indian Health Service, Division of Grants Management, ATTN: Paul Gettys, Acting Director, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, (Include “Mandatory Grant Disclosures” in subject line), Office: (301) 443-5204, Fax: (301) 594-0899, Email:
U.S. Department of Health and Human Services, Office of Inspector General, ATTN: Mandatory Grant Disclosures, Intake Coordinator, 330 Independence Avenue SW, Cohen Building, Room 5527, Washington, DC 20201, URL:
Failure to make required disclosures can result in any of the remedies described in 45 CFR 75.371 Remedies for noncompliance, including suspension or debarment (see 2 CFR part 180 and 2 CFR part 376).
1. Questions on the programmatic issues may be directed to: Debi Nalwood, Health System Specialist, Indian Health Service, Office of Urban Indian Health Programs, 5600 Fishers Lane, Mail Stop: 08E65D, Rockville, MD 20857, Phone: (240) 701-0882, Email:
2. Questions on grants management and fiscal matters may be directed to: Pallop Chareonvootitam, Grants Management Specialist, Indian Health Service, Division of Grants Management, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, Phone: (301) 443-2195, Email:
3. Questions on systems matters may be directed to: Paul Gettys, Acting Director, Division of Grants Management, Indian Health Service, Division of Grants Management, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, Phone: (301) 443-2114; or the DGM main line (301) 443-5204, Email:
The Public Health Service strongly encourages all grant, cooperative agreement, and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103-227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
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.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0094, Ships Carrying Bulk Hazardous Liquids; without change.
Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before December 10, 2021.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2021-0626], and must be received by December 10, 2021.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (86 FR 45743, August 16, 2021) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
Forms:
• CG-4602B, Cargo Record Book.
• CG-5148, International Certificate of Fitness for the Carriage of Liquefied Gases in Bulk.
• CG-5148A, Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk.
• CG-5148B, Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk.
• CG-5148C, Certificate of Fitness.
• CG-5461, International Pollution Prevention Certificate for the Carriage of Noxious Liquid Substances in Bulk.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0060, Vapor Control Systems for Facilities and Tank Vessels; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before December 10, 2021.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management,
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2021-0625], and must be received by December 10, 2021.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (86 FR 45744, August 16, 2021) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0045, Adequacy Certification for Reception Facilities and Advance Notice; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before December 10, 2021.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2021-0624], and must be received by December 10, 2021.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (86 FR 45745, August 16, 2021) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
• CG-5401, Certificate of Adequacy for Reception Facility.
• CG-5401A, Application for a Reception Facility Certificate of Adequacy (COA) for Oil, Form A.
• CG-5401B, Application for a Reception Facility Certificate of Adequacy (COA) for Noxious Liquid Substance (NLS) Residues and Mixtures Containing NLS Residues, Form B.
• CG-5401C, Application for a Reception Facility Certificate of Adequacy for Garbage, Form C.
• CG-5401D, Application for a Reception Facility Certificate of Adequacy for Ozone Depletion Substances and Exhaust Gas Cleaning System Residue, Form D.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0013, Plan Approval and Records for Load Lines; without change.
Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before December 10, 2021.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2021-0410], and must be received by December 10, 2021.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (86 FR 46863, August 20, 2021) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
Federal Emergency Management Agency, Department of Homeland Security.
60-day notice and request for comments.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on an existing information collection in use without an OMB control number. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning FEMA's compilation and information sharing leveraging the National Business Emergency Operation Center (NBEOC) stakeholder listing. FEMA seeks to voluntarily continue the standing practice of collecting entity specific information for dissemination during an event to assist in response/recovery operations.
Comments must be submitted on or before January 10, 2022.
Submit comments at
All submissions received must include the agency name and Docket ID, and will be posted, without change, to the Federal eRulemaking Portal at
Mr. Donald J. Odell, Operations and Insight Management Branch Chief, Office of Business Industry, and Infrastructure Integration (OB3I), (202) 258-2076 or
The Federal Emergency Management Agency (FEMA) is requesting the information written on this form to establish your identity and your consent to disclose the information provided on the National Business Emergency Operations Center Membership Agreement form under the form's “NBEOC contact information” section, to all NBEOC members and participants of NBEOC meetings or events. Written consent is requested pursuant to the Privacy Act of 1974, 5 U.S.C. 552a(b). The program for which this form may be used is authorized by the Robert T. Stafford Disaster Relief and Emergency Assistance Act as amended, 42 U.S.C. 5121 -5207; The Homeland Security Act of 2002, 6 U.S.C. 311-321j; 44 CFR 206.2(a)(27); the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193); and Exec. Order No. 13411, Improving Assistance for Disaster Victims.
Information collected is as follows: Entity Name, Entity Representative, Duty Title, Work Phone, Work Email, Your full name, Current Address, Place of Birth, Date of Birth, and Signature.
FEMA may externally share the information you provide as generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, the “routine uses” published in DHS/ALL-002 Department of Homeland Security Mailing and Other Lists System 73 FR 71659 (November 25, 2008), and as authorized by your written consent. The information provided to FEMA regarding you and your entity may be subject to release under the Freedom of Information Act (5 U.S.C. 552). A complete list of the routine uses can be found in the system of records notice DHS/ALL-002 Department of Homeland Security Mailing and Other Lists System 73 FR 71659 (November 25, 2008). The Department's full list of systems of record notices can be found on the Department's website at
Comments may be submitted as indicated in the
Office of the Secretary, DHS.
Notice.
Under Department of Homeland Security (DHS) regulations, U.S. Citizenship and Immigration Services (USCIS) may generally only approve petitions for H-2A and H-2B nonimmigrant status for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated by notice published in the
The designations in this notice are effective from November 10, 2021 and shall be without effect on November 10, 2022.
Ihsan Gunduz, Office of Strategy, Policy, and Plans, Department of Homeland Security, Washington, DC 20528, (202) 282-9708.
Generally, USCIS may approve H-2A and H-2B petitions for nationals of only those countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated as participating
As previously indicated,
Similarly, DHS recognizes that countries designated under long-standing practice by U.S. Immigration and Customs Enforcement (ICE) as “At Risk of Non-Compliance” or “Uncooperative” with removals based on ICE data put the integrity of the immigration system and the American people at risk. Therefore, unless other favorable factors in the U.S. interest outweigh such designations by ICE, the Secretary of Homeland Security, with the concurrence of the Secretary of State, generally will terminate designation of such countries from the H-2A and H-2B nonimmigrant visa programs. Because there are separate lists for the H-2A and H-2B categories, it is possible that, in applying the above-described regulatory criteria for listing countries, a country may appear on one list but not on the other.
Even where the Secretary of Homeland Security has determined to terminate or decided not to designate a country, DHS, through USCIS, may allow, on a case-by-case basis, a national from a country that is not on the list to be named as a beneficiary of an H-2A or H-2B petition based on a determination that it is in the U.S. interest for that individual noncitizen to be a beneficiary of an H-2 petition. Determination of such U.S. interest will take into account factors, including but not limited to: (1) Evidence from the petitioner demonstrating that a worker with the required skills is not available either from among U.S. workers or from among foreign workers from a country currently on the list described in 8 CFR 214.2(h)(5)(i)(F)(1)(i) (H-2A nonimmigrants) or 214.2(h)(6)(1)(E)(1) (H-2B nonimmigrants), as applicable; (2) evidence that the beneficiary has been admitted to the United States previously in H-2A or H-2B status; (3) the potential for abuse, fraud, or other harm to the integrity of the H-2A or H-2B visa program through the potential admission of a beneficiary from a country not currently on the list; and (4) such other factors as may serve the U.S. interest.
In December 2008, DHS published the first lists of eligible countries for the H-2A and H-2B Visa Programs in the
The Secretary of Homeland Security has determined, with the concurrence of the Secretary of State, that 80 countries previously designated to participate in the H-2A program in the January 13,
The Secretary of Homeland Security has determined, with the concurrence of the Secretary of State, that Moldova should no longer be designated as an H-2A eligible country because it no longer meets the regulatory standards identified above. Specifically, The Department of State (DOS) has evidence of agents recruiting applicants for H and J visas in Moldova collecting recruitment fees prohibited under U.S. law for certain visas including H-2A. The United States Government has also documented increasingly sophisticated levels of fraud by Moldovan nationals seeking to obtain H-2A visas with a photocopy of a bona fide unnamed petition and fraudulent work contracts. Considering these factors, and absent significant mitigating factors, the continued eligibility of Moldova to participate in the H-2A program no longer serves the U.S. interest. Therefore, the Secretary of Homeland Security, with the concurrence of the Secretary of State, is removing Moldova from the list of H-2A eligible countries. In a November 18, 2015
Based on the foregoing analysis, DHS, with the concurrence of DOS, has removed one country from the H-2A eligible country list. Nonetheless, and as already noted, nationals of non-designated countries may still be beneficiaries of approved H-2A and H-2B petitions upon the request of the petitioner if USCIS determines, as a matter of discretion and on a case-by-case basis, that it is in the U.S. interest for the individual to be a beneficiary of such petition.
The Secretary of Homeland Security has also determined, with the concurrence of the Secretary of State, that Bosnia and Herzegovina, the Republic of Cyprus, the Dominican Republic (currently only eligible for H-2A), Haiti, Mauritius, and Saint Lucia should be designated as eligible countries to participate in the H-2A and H-2B non-immigrant visa programs because the participation of these countries is in the U.S. interest consistent with the regulations governing these programs.
Bosnia and Herzegovina consistently cooperates with accepting its nationals subject to a final order of removal. Additionally, DOS Consular Affairs does not have significant fraud concerns associated with visa applications submitted by nationals of Bosnia and Herzegovina. Bosnians historically participate in the Summer Work Travel and other exchange programs without presenting significant overstay, fraud, or abuse concerns. Additionally, nationals of Bosnia and Herzegovina do not present significant overstay concerns in other nonimmigrant visa categories. Inclusion of Bosnia and Herzegovina in the H-2A and H-2B programs would bolster the bilateral relationship, further contributing to the United States' goals of countering malign foreign influence and promoting Euro-Atlantic integration. As such, adding Bosnia and Herzegovina to the H-2A and H-2B eligible countries lists serves the U.S. interest.
Nationals of the Republic of Cyprus (ROC) do not present significant overstay concerns and are consistently compliant with the terms and conditions of visa categories. ROC also consistently cooperates on accepting its nationals subject to a final order of removal. Furthermore, DOS's recent validation studies have not identified significant fraud concerns with Cypriot travelers to and from the United States. Its strategic location, European Union membership, and support for democratic principles make the ROC an increasingly important partner for the United States. Adding the ROC to the H-2 eligible country lists would both demonstrate an immediate commitment to strengthening the bilateral relationship and help counter malign foreign influence. Additionally, ROC participation in the H-2A and H-2B non-immigrant visa programs further serves the U.S. interest and Embassy Nicosia's Integrated Country Strategy goals of engaging both the Greek and Turkish Cypriot communities and improving people-to-people contact across the island. Based on the foregoing reasons, adding the ROC to the H-2A and H-2B eligible countries lists serves the U.S. interest.
The Dominican Republic was removed from the list of H-2B eligible countries in a January 18, 2019
The Government of Haiti has been a valued partner, and consistently cooperated on accepting the return of its nationals subject to a final order of removal which proceeded almost uninterrupted throughout the COVID-19 pandemic, despite the political, environmental, and economic challenges facing Haiti. Adding Haiti back to H-2A and H-2B programs serves the U.S. interest and is consistent with the whole-of-government efforts to address the root causes of irregular migration and create lawful pathways for a safe, orderly, and legal migration.
Nationals of Mauritius do not present significant visa overstay concerns and there are no outstanding issues with the repatriation of nationals of Mauritius with a final order of removal from the United States. Additionally, DOS conducted two separate validation studies on proper use of certain visa categories and the results indicated that over 99 percent of nationals of Mauritius complied with the terms and conditions of their visas. Additionally, DHS visa overstay data across all visa categories does not indicate a significant concern over the course of several years. Furthermore, eligibility for H-2A and H-2B nonimmigrant worker programs would bolster the bilateral and economic relationship. Therefore, adding Mauritius to the H-2A and H-2B eligible countries lists serves the U.S. interest.
Saint Lucia does not present significant overstay or fraud concerns across all nonimmigrant visas. Furthermore, adding Saint Lucia to both H-2A and H-2B programs is in the U.S. national interest. First, by providing economic opportunities to Saint Lucians in agriculture and seafood processing, inclusion will directly meet one of the key goals of the country's newly elected government, thereby bolstering bilateral relations at a time when the country is reexamining its foreign policy directions. Second, by affording Saint Lucian nationals greater familiarity with U.S. agriculture and aquaculture best practices, the country's designation for H-2A and H-2B participation by its nationals will increase the productivity of their businesses in these sectors upon their nationals' return from the United States, thus advancing U.S. economic development goals of strengthening entrepreneurship and diversifying the economy away from its current heavy reliance on tourism. Finally, Saint Lucia is consistently cooperative with the United States on accepting their nationals subject to a final order of removal. As such, adding Saint Lucia to both the H-2A and H-2B eligible countries lists serves the U.S. interest.
Pursuant to the authority provided to the Secretary of Homeland Security under sections 214(a)(1) and 215(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1184(a)(1) and 1185(a)(1), I am designating, with the concurrence of the Secretary of State, nationals from the following countries to be eligible to participate in the H-2A nonimmigrant worker program:
Pursuant to the authority provided to the Secretary of Homeland Security under sections 214(a)(1) and 215(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1184(a)(1) and 1185(a)(1)), I am designating, with the concurrence of the Secretary of State, nationals from the following countries to be eligible to participate in the H-2B nonimmigrant worker program:
This notice does not affect the current status of noncitizens who at the time of publication of this notice hold valid H-2A or H-2B nonimmigrant status. Noncitizens currently holding such status, however, will be affected by this notice should they seek an extension of stay in the H-2 classification, or a change of status from one H-2 status to another, for employment on or after the effective date of this notice. Similarly, noncitizens holding nonimmigrant status other than H-2 are not affected by this notice unless they seek a change of status to H-2.
Nothing in this notice limits the authority of the Secretary of Homeland Security or his designee or any other federal agency to invoke against any foreign country or its nationals any other remedy, penalty, or enforcement action available by law.
Transportation Security Administration, DHS.
60-day notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0039, that we will submit to OMB for an extension in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection involves the submission of information from claimants in order to thoroughly examine and resolve tort claims against the agency.
Send your comments by January 10, 2022.
Comments may be emailed to
Christina A. Walsh at the above address, or by telephone (571) 227-2062.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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 using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
OMB Control Number 1652-0039; TSA Claims Application allows the agency to collect information from claimants in order to thoroughly examine and resolve tort claims against the agency. TSA receives approximately 750 tort claims per month arising from airport screening activities and other circumstances, including motor vehicle accidents and employee loss. The Federal Tort Claims Act (28 U.S.C. 1346(b), 1402(b), 2401(b), 2671-2680) is
The data is collected whenever an individual believes s/he has experienced property loss or damage, a personal injury, or other damages due to the negligence or wrongful act or omission of a TSA employee, and decides to file a Federal tort claim against TSA. Submission of a claim is entirely voluntary and initiated by individuals. The claimants (or respondents) to this collection are typically the traveling public. Currently, claimants file a claim by submitting to TSA a Standard Form 95 (SF-95), which has been approved under OMB control number 1105-0008. Because TSA requires further clarifying information, claimants are asked to complete a Supplemental Information page added to the SF-95. If TSA determines payment is warranted, TSA will send the claimant a form requesting banking information (routing and account numbers) in order to direct payment to the claimant. This form has been approved under OMB control number 1652-0039.
Claim instructions and forms are available through the TSA website at
If TSA determines payment is warranted, TSA sends the claimant a form requesting: (1) Claimant signature, (2) banking information, and (3) Social Security number (required by the U.S. Treasury for all Government payments to the public pursuant to 31 U.S.C. 3325).
Under the current system of claims submitted by mail or fax, TSA estimates there will be approximately 9,000 respondents on an annual basis, for a total annual hour burden of 4,708 hours.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(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 those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(5) Ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of an investigation and commencement of preliminary phase antidumping duty investigation No. 731-TA-1574 (Preliminary) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of superabsorbent polymers from South Korea, provided for in subheading 3906.90.50 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value. Unless the Department of Commerce (“Commerce”) extends the time for initiation, the Commission must reach a preliminary determination in antidumping duty investigations in 45 days, or in this case by December 17, 2021. The Commission's views must be transmitted to Commerce within five business days thereafter, or by December 27, 2021.
November 2, 2021.
Charles Cummings (202-708-1666), 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 (
For further information concerning the conduct of this investigation and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
Please note the Secretary's Office will accept only electronic filings during this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
In accordance with §§ 201.16(c) and 207.3 of the rules, each document filed by a party to the investigation must be served on all other parties to the investigation (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.
By order of the Commission.
International Trade Commission.
Notice.
Notice is hereby given that, following a remand from the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”), the U.S. International Trade Commission has determined to issue a modified limited exclusion order (“LEO”) and modified cease and desist orders (“CDOs”) directed against respondents Caterpillar Paving Products, Inc. and Caterpillar Inc., respectively, and their affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns. The Commission has terminated this investigation.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-3115. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on August 25, 2017, based on a complaint filed by Wirtgen America, Inc. of Antioch, Tennessee (“Wirtgen” or “Complainant”). 82 FR 40595-96 (Aug. 25, 2017). The complaint alleges a violation of section 337 by reason of infringement of certain claims of U.S. Patent Nos. 7,530,641 (“the '641 patent”); 7,828,309 (“the '309 patent”); 9,624,628 (“the '628 patent”); 9,644,340 (“the '340 patent”); and 9,656,530 (“the '530 patent”). The notice of investigation named as respondents Caterpillar Prodotti Stradali S.r.L. of Minerbio BO, Italy; Caterpillar Americas CV of Geneva, Switzerland; Caterpillar Paving Products, Inc. of Minneapolis, Minnesota; and Caterpillar Inc., of Peoria, Illinois (collectively, “Caterpillar,” or “Respondents”) and Caterpillar Bitelli SpA of Minerbio BO, Italy. The Commission's Office of Unfair Import Investigations was named as a party, but later withdrew from the investigation. Commission Investigative Staff's Notice of Non-Participation (Oct. 31, 2017).
On April 27, 2018, the Commission terminated the investigation as to the '628 patent based on withdrawal of the complaint allegations as to that patent.
On October 1, 2018, the presiding administrative law judge (“ALJ”) issued a final initial determination (“ID”) finding that a violation of section 337 occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation, of certain road milling machines and components thereof that infringed the asserted claims of the '309 and '530 patents, but found no violation with respect to the '641 and '340 patents.
On April 17, 2019, the Commission determined to review in part the final ID.
On July 18, 2019, the Commission found a violation of section 337 as to the '309 and '530 patents and determined that the appropriate form of relief in this investigation is: (1) An LEO prohibiting the unlicensed entry of infringing road-milling machines and components thereof covered by one or more of claim 29 of the '309 patent or claims 2, 5, 16, or 23 of the '530 patent that are manufactured abroad for or on behalf of, or imported by or on behalf of, any of the Respondents or any of their affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns; and (2) CDOs directed against respondents Caterpillar Paving Products, Inc. and Caterpillar Inc., and their affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns.
Both Complainant and Respondents timely appealed the Commission's final determination with the United States Court of Appeals for the Federal Circuit. On October 21, 2019, the Court consolidated the two appeals.
On March 15, 2021, the Court issued a non-precedential decision affirming the Commission's determination of a Section 337 violation with respect to the '530 and '309 patents.
Pursuant to the Court's remand, the Commission issued a Notice and Order
Having examined the record in this investigation, including the parties' submissions filed in response to the Commission's Notice and Order, and consistent with the judgment of the Court, the Commission has determined to modify (1) the LEO issued in this investigation to cover, in addition to its existing scope, claims 11 or 17 of the '641 patent; and (2) the CDOs issued against Caterpillar, Inc. of Peoria, IL and Caterpillar Paving Products, Inc. of Minneapolis, MN to cover, in addition to their existing scope, claims 11 or 17 of the '641 patent.
The Commission has terminated this investigation.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 23) terminating the investigation on the basis of settlement. The investigation is terminated in its entirety.
Amanda P. Fisherow, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2737. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket information system (EDIS) at
The Commission instituted the present investigation on December 29, 2020, based on a complaint and supplement thereto filed by Amtech Systems LLC of Albuquerque, New Mexico (“Complainant”). 85 FR 85660-61 (Dec. 29, 2020). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the importation, sale for importation, and sale in the United States after importation of certain RFID products, components thereof, and products containing the same that allegedly infringe certain claims of U.S. Patent No. 7,518,532; U.S. Patent No. 7,772,977; U.S. Patent No. 8,237,565; U.S. Patent No. 7,548,153; U.S. Patent No. 8,427,279; and U.S. Patent No. 10,083,329.
On September 30, 2021, the private parties filed a joint unopposed motion to terminate the investigation on the basis of settlement. The parties represented that “there are no other agreements, written or oral, express or implied, between them concerning the subject matter of this proceeding.” Mot. at 1.
On October 19, 2021, the presiding administrative law judge issued Order No. 23, granting the joint motion to terminate the investigation on the basis of settlement. The ID found that the motion complies with the requirements of Commission Rule 210.21 (19 CFR 210.21(a), (b)) and that there is no evidence that indicates that termination would adversely affect the public interest. No party filed a petition for review of the ID.
The Commission has determined not to review this ID. Accordingly, the investigation is terminated.
The Commission vote for this determination took place on November 4, 2021.
The authority for the Commission's determination is contained in Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
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 October 4, 2021, under section 337 of the Tariff Act of 1930, as amended, on behalf of Shenzhen Smoore Technology Limited of China. Supplements were filed on October 8, 2021, and October 21, 2021. The complaint, as supplemented, 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 oil-vaping cartridges, components thereof, and products
The complaint, except for any confidential information contained therein, may be viewed on the Commission's electronic docket (EDIS) at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(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 subsections (a)(1)(B) and (C) 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 one or more of claims 1-3, 5, and 6 of the '623 patent; claims 1, 2, and 7 of the '762 patent; claims 1 and 11 of the '763 patent; and the `060 mark, 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 plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “oil-vaping cartridges having a liquid reservoir for containing a vaporizable oil;”
(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 complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
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
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.
Federal Bureau of Investigation, Department of Justice.
Meeting notice.
The purpose of this notice is to announce a meeting of the Federal Bureau of Investigation's (FBI) Criminal Justice Information Services (CJIS) Advisory Policy Board (APB). The CJIS APB is a federal advisory committee established pursuant to the Federal Advisory Committee Act (FACA). This meeting announcement is being published as required by Section 10 of the FACA.
The APB will meet in open session from 8:30 a.m. until 6:00 p.m. on December 8, 2021.
The meeting will take place at the Sheraton Atlanta Hotel, 165 Courtland Street NE, Atlanta, Georgia 30303, telephone 404-659-6500. Due to COVID-19 safety precautions that limit meeting space accommodations the CJIS Division is offering a blended participation option that allows for a limited number of individuals to participate in person and additional individuals to participate via a telephone bridge line. The public will be permitted to provide comments and/or questions related to matters of the APB prior to the meeting. In-person gallery participation will be limited to the first 75 external participants who register to attend in person. Additional participants may also participate via a telephone bridge line. Please see details in the supplemental information.
Inquiries may be addressed to Ms. Amber Mann, Management and Program Analyst, Advisory Process Management Office, Global Law Enforcement Support Section; 1000 Custer Hollow Road, Clarksburg, West Virginia 26306; email
The FBI CJIS APB is responsible for reviewing policy issues and appropriate technical and operational issues related to the programs administered by the FBI's CJIS Division, and thereafter, making appropriate recommendations to the FBI Director. The programs administered by the CJIS Division are the Law Enforcement Enterprise Portal, National Crime Information Center, Next Generation Identification, National Instant Criminal Background Check System, National Data Exchange System, and Uniform Crime Reporting.
The meeting will be conducted with a blended participation option. The public may participate as follows: Public registrations will be processed on a first-come, first-served basis. The first 75 individuals to register will be afforded the opportunity to participate in person and are required to check-in at the meeting registration desk. Any additional registrants will be provided with a phone bridge number to participate in a listen-only mode.
Registrations will be taken via email to
Any member of the public may file a written statement with the APB. Written comments shall be focused on the APB's current issues under discussion and may not be repetitive of previously submitted written statements. Written comments should be provided to Mr. Nicky J. Megna, DFO, at least seven (7) days in advance of the meeting so the comments may be made available to the APB members for their consideration prior to the meeting.
Individuals requiring special accommodations should contact Mr. Megna by no later than December 3, 2021. Personal registration information will be made publicly available through the minutes for the meeting published on the FACA website.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to obtain OMB approval for the information collection requirements contained in the Standards on Variance and Other Relief; Variances and Other Relief; and Limitation, Variations, Tolerances or Exemptions. These statutory and regulatory provisions specify the requirements for submitting applications to OSHA for temporary, experimental, permanent, and national defense variances.
Comments must be submitted (postmarked, sent or received) by January 10, 2022.
Submit comments by any of the following methods:
Seleda Perryman or Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, telephone (202) 693-2222.
The Department of Labor, as part of the continuing effort to reduce paperwork and respondent (
Sections 6(b)6(A), 6(b)6(B), 6(b)6(C), 6(d), and 16 of the OSH Act, and 29 CFR 1905.10, 1905.11, and 1905.12, specify the procedures that employers must follow to apply for a variance from the requirements of an OSHA standard. OSHA uses the information collected under these procedures to: (1) Evaluate the employer's claim that the alternative means of compliance would provide affected employees with the requisite level of health and safety protection; (2) assess the technical feasibility of the alternative means of compliance; (3) determine that the employer properly notified affected employees of the variance application and their right to a hearing; and (4) verify that the application contains the administrative information required by the applicable variance regulation.
Currently, no specific forms are available for preparing variance applications and other documents that may accompany variance applications. OSHA is developing new forms to assist employers in preparing variance applications that comply with the information collection requirements contained in the OSH Act and variance regulations.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for proper performance of the agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply. For example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting OMB approval of the information collection (paperwork) requirements contained in Sections 6(b)6(A), 6(b)6(B), 6(b)6(C), 6(d), and 16 of the Occupational Safety and Health Act of 1970, and 29 CFR 1905.10, 1905.11, and 1905.12. These statutory and regulatory provisions specify the requirements for submitting applications to OSHA for temporary, experimental, permanent, and national defense variances.
OSHA is also requesting OMB approval to develop and use variance application forms for the four types of variances specified by the OSH Act and variance regulations. The four types of variances are: Temporary variances (Section 6(b)(6)(A) of the Act; 29 U.S.C. 655; 29 CFR 1905.10); experimental variances (Section 6(b)(6)(C) of the Act; 29 U.S.C. 655); permanent variances (Section 6(d) of the Act; 29 U.S.C. 655; 29 CFR 1905.11); and national defense variances (Section 16 of the Act; 29 U.S.C. 665; 29 CFR 1905.12). The variance regulations specify the information that employers must provide when requesting one of these variances. The variance application forms would organize and clarify the information collection requirements for each type of variance by specifying the requirements in comprehensible language, and providing explanatory material. Employers applying for a variance could download and complete the applicable form from OSHA's website. The forms would expedite the application process for employers, and ensure that the information on the application is complete and accurate.
There are no adjustments or program changes associated with this ICR. The agency is proposing to retain the previous burden hour estimate of 366 hours. The agency will summarize the comments submitted in response to this notice, and will include this summary in the request to OMB to approve these information collection requirements and variance application forms.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments.
Comments and submissions are posted without change at
All submissions, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information on using the
James S. Frederick, Acting Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
Institute of Museum and Library Services (IMLS), National Foundation of the Arts and the Humanities (NFAH).
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the National Museum and Library Services Board will meet to advise the Director of the Institute of Museum and Library Services (IMLS) with respect to duties, powers, and authority of IMLS relating to museum, library, and information services, as well as coordination of activities for the improvement of these services.
Katherine Maas, Chief of Staff and Alternate Designated Federal Officer, Institute of Museum and Library Services, Suite 4000, 955 L'Enfant Plaza North SW, Washington, DC 20024; (202) 653-4798;
The National Museum and Library Services Board is meeting pursuant to the National Museum and Library Service Act, 20 U.S.C. 9105a, and the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. app.
The 44th Meeting of the National Museum and Library Services Board, which is open to the public, will convene online at 11:30 a.m. Eastern Time on December 10, 2021.
The agenda for the 44th Meeting of the National Museum and Library Services Board will be as follows:
If you wish to attend the virtual public session of the meeting, please inform IMLS as soon as possible, but no later than close of business on December 8, 2021, by contacting Katherine Maas at
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 that 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
Written comments must be submitted to the office listed in the
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this Notice to
OMB is particularly 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 (
Matthew Birnbaum, Supervisory Social Scientist, Office of Research and Evaluation, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, Suite 4000, Washington DC 20024-2135. Dr. Birnbaum can be reached by telephone at 202-653-4760 or by email at
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
IMLS, in partnership with the Chief Officers of State Library Associations (COSLA), launched
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Facility Security Clearance and Safeguarding of National Security Information and Restricted Data.”
Submit comments by December 10, 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.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
David C. Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2021-0084 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:
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Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, 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 comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “Facility Security Clearance and Safeguarding of National Security Information and Restricted Data.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
(a) Banque Centrale de Compensation, which conducts business under the name LCH SA, is proposing to update the current fee grid to be applied by LCH SA for the new scope of eligible securities collateral to be extended to government bonds issued by the following states and denominated in their domestic currencies: Australia, Canada, Denmark, Japan, Norway, Sweden and Switzerland
The text of the Proposed Rule Change has been annexed [sic] hereto as Exhibit 5.
In its filing with the Commission, LCH SA 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. LCH SA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
LCH SA charges fees on collateral posted by its clearing members to cover the CCP margin requirements. The level of fees is defined based on a combination of various factors such as operational costs to manage a given type of collateral, ability to generate liquidity from a given type of collateral (and thus the associated impact on the CCP
As per CDSClear current collateral fee grid (copied below), LCH SA already charges different fees depending on the type of securities, the way that such securities are deposited at the CCP as well as the type of activity these cover. For instance, for securities deposited under Full Title Transfer (FTT) by a clearing Member to meet the margin liabilities of its House account (self-clearing activity), LCH SA charges an 11bps fee on the notional of government bond securities whereas the charge is 13bps for Agencies and Supranational securities.
From November 1st, 2021, LCH SA is proposing to extend the scope of instruments eligible as collateral to the government bonds issued by the following countries and denominated in their domestic currencies: Australia, Canada, Denmark, Japan, Norway, Sweden and Switzerland.
As such, LCH SA needs to update its existing non-cash collateral fee grid for both House and Client clearing activities. As mentioned before, various factors are taken into consideration when defining the fee to be charged for a given security. For this initiative, LCH SA has considered a combination of elements such as the impossibility to use these securities as collateral with the European Central Bank (ECB) for liquidity management purposes, the relative appetite of the membership for this new collateral and the operational costs and constraints that the management of those securities create for the CCP (incl. their impact on LCH SA Liquidity Coverage Ratio).
As specified in the fee grid attached [sic] as Exhibit 5, the purpose of the Proposed Rule Change is to define the fee to be charged for the new scope of eligible collateral (13bps for House and 10 bps for Client clearing activities). The difference between the fee charged for House versus Client collateral is mainly driven by commercial reasons in consultation with CDSClear clearing members. Client clearing of CDS is reasonably recent in Europe. Given the limited scope of CDS instruments and categories of buy-side counterparties included in the scope of the European Clearing Obligation for CDS, LCH SA believes that expanding the list of eligible collateral as well as setting a more attractive collateral fee for Clients of the CDSClear service will incentivise further buy-side firms to clear a bigger share of their Credit Derivatives portfolio.
No amendments to the LCH SA CDS Clearing Rules are required for these changes to become effective.
Section 17A(b)(3)(D) of the Act requires that the rules of a clearing agency provide for the equitable allocation of reasonable dues, fees, and other charges.
LCH SA believes that its clearing fee change proposal is consistent with the requirements of Section 17A of the Act
As explained in our approved filing LCH SA-2021-002,
The fee charged to clients of LCH SA CDSClear service is unchanged compared to existing securities as LCH SA wanted to preserve consistency in the pricing for clients of LCH SA CDSClear service.
Additionally, today, CDSClear members and their clients mainly post cash collateral currently and LCH SA does not foresee that the proposed fee changes will alter current market practice amongst CDSClear's members and clients or will have any material impact on CDSClear's revenues. Indeed, the initiative is simply widening the list of eligible collateral as well as setting the associated fee for the new securities. It does not make any change to the fees charged on the existing list of eligible collateral and as such won't impact at all any of the current clearing members. Any clearing member wishing to deposit newly added securities as collateral for LCH SA will be able to do so knowing in advance the associated fee. Any clearing member not wishing to use the new range of eligible collateral for whatever reason will remain perfectly free to do so as well.
For all the reasons stated above, LCH SA believes that the proposed fee rates are reasonable and have been set up at an appropriate level given the costs, expenses and revenues generated to LCH SA in providing these expanded collateral management services.
Section 17A(b)(3)(I) of the Act requires that the rules of a clearing agency not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
LCH SA 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.
LCH SA is offering the possibility for CDSClear members and clients to post a greater scope of instruments as eligible margin collateral. Additionally, the proposed fee change will apply equally to all CDSClear clearing members and is not expected to have any potential disparate outcomes on any of them. Finally, the fee rate changes will not adversely affect the ability of such members or other market participants generally to engage in cleared transactions or to access LCH SA's clearing services.
Further, as explained above, LCH SA believes that the fee rates have been set up at an appropriate level given the costs and expenses to LCH SA in offering the relevant clearing services.
The foregoing proposed rule change has become effective upon filing pursuant to Section 19(b)(3)(A)
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)
The Exchange proposes to modify the NYSE Arca Options Fee Schedule (“Fee Schedule”) regarding incentives available to Market Makers. The Exchange proposes to implement the fee change effective November 1, 2021. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to amend the Fee Schedule to modify certain incentives intended to encourage Market Maker posted volume.
Currently, the Fee Schedule provides a variety of incentives to encourage greater participation by Market Makers and Market Maker affiliates, including more favorable rates for higher volumes from posted interest (
The Exchange now proposes to modify the qualifying criteria for the Market Maker Penny and SPY Posting Credit Tiers
The Exchange proposes to implement the fee change on November 1, 2021.
The Exchange proposes to modify the qualifying criteria for the Additional Credit, which is currently applied to electronic executions of Market Maker posted interest in Penny Issues provided an OTP Holder or OTP Firm that qualifies for either Super Tier achieves (i) at least 0.18% of TCADV from Market Maker posted interest in all issues, and (ii) ETP Holder and Market Maker posted volume in Tape B Securities (“Tape B Adding ADV”) that is equal to at least 1.50% of US Tape B consolidated average daily volume (“CADV”) executed on the NYSE Arca Equity Market for the billing month.
The Exchange also proposes to eliminate one of the alternative qualifications for Super Tier II.
The Exchange cannot predict with certainty whether any OTP Holders would seek to qualify for the Additional Credit or to achieve Super Tier II, as modified, but believes that OTP Holders would continue to be encouraged to qualify for the advantages of the Additional Credit and Super Tier II. The Exchange believes the proposed modifications to the qualifying criteria for the Additional Credit and Super Tier II, which encourage increased posted interest from Market Makers in certain high-volume issues as well as cross market activity, would continue to incentivize OTP Holders to submit these types of orders to the Exchange, from all account types, which brings increased liquidity and order flow for the benefit of all market participants.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange operates in a highly competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
There are currently 16 registered options exchanges competing for order flow. Based on publicly available information, and excluding index-based options, no single exchange has more than 16% of the market share of executed volume of multiply-listed equity and ETF options trades.
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can shift order flow, or discontinue or reduce use of certain categories of products, in response to fee changes. Accordingly, competitive forces constrain options exchange transaction fees. Stated otherwise, changes to exchange transaction fees can have a direct effect on the ability of an exchange to compete for order flow.
The Exchange believes that the proposed modifications to the qualifying criteria for the Additional Credit and Super Tier II are reasonably designed to incent OTP Holders to increase the number and variety of orders sent to the Exchange for execution. Specifically, to the extent that the proposed change attracts more Market Maker posted interest in certain high-volume issues and cross asset activity, this increased order flow would continue to make the Exchange a more competitive venue for, among other things, order execution, which, in turn, promotes just and equitable principles of trade and removes impediments to and perfects the mechanism of a free and open market and a national market system. Although the Exchange proposes to eliminate one of the alternative qualification bases for the credit available in Super Tier II, the Exchange believes that the remaining qualifying criteria will continue to incentivize participation in greater volume from posted interest, as well as cross asset activity.
Finally, to the extent the proposed change continues to attract greater volume and liquidity, the Exchange believes the proposed change would improve the Exchange's overall competitiveness and strengthen its market quality for all market participants. In the backdrop of the competitive environment in which the Exchange operates, the proposed rule change is a reasonable attempt by the Exchange to increase the depth of its market and improve its market share relative to its competitors. The Exchange's fees are constrained by intermarket competition, as OTP Holders may direct their order flow to any of the 16 options exchanges, including those that also offer incentives based on Market Maker posted volume in IWM, QQQ, and SPY.
At present, whether or when an OTP Holder qualifies for the various incentives set forth in the Market Maker Penny and SPY Posting Credit Tiers in a given month is dependent on market activity and an OTP Holder's mix of order flow. Thus, while the Exchange cannot predict with certainty whether any OTP Holders will seek to qualify for the Additional Credit or Super Tier II, as proposed, the Exchange believes that OTP Holders would continue to be encouraged to take advantage of the Additional Credit and Super Tier II $0.42 credit available to qualifying OTP Holders. The Exchange believes the proposed incentives, as modified, which apply to Market Maker posted interest in certain high volume issues and cross asset activity, would provide an incentive for OTP Holders to continue to submit these types of orders to the Exchange, which brings increased liquidity and order flow for the benefit of all market participants.
The Exchange believes the proposed rule change is an equitable allocation of its fees and credits. The proposal is based on the amount and type of business transacted on the Exchange, and OTP Holders can opt to seek to qualify for the incentives or not. Moreover, the proposal is designed to encourage OTP Holders to submit orders from all account types to the Exchange as a primary execution venue. In addition, while the Exchange proposes to modify the available qualification levels for Super Tier II, the Exchange believes that the remaining alternative qualifying criteria are attainable and will continue to incentivize participation in greater volume from posted interest, as well as cross asset activity. To the extent that the proposed change attracts more Market Maker posted interest to the Exchange, as well as increased cross asset activity, this increased order flow would continue to make the Exchange a more competitive venue for, among other things, order execution. Thus, the Exchange believes the proposed rule change would improve market quality for all market participants on the Exchange and, as a consequence, attract more order flow to the Exchange thereby improving market-wide quality and price discovery.
The Exchange believes the proposed rule change is not unfairly discriminatory because the modified qualifying criteria for both the Additional Credit and the credit available to OTP Holders who achieve Super Tier II would apply and be available equally to all similarly-situated market participants on an equal and non-discriminatory basis.
The proposal is based on the amount and type of business transacted on the Exchange, and OTP Holders are not obligated to try to achieve the qualifications for any of the tiers or execute either Market Maker posted interest or cross asset activity. Rather, the proposal is designed to continue to encourage OTP Holders to utilize the Exchange as a primary trading venue for Market Maker posted interest (if they have not done so previously) and to increase volume sent to the Exchange. To the extent that the proposed change attracts more Market Maker posted interest to the Exchange (particularly in certain high volume issues), this increased order flow would continue to make the Exchange a more competitive venue for, among other things, order execution. Thus, the Exchange believes the proposed rule change would improve market quality for all market participants on the Exchange and, as a consequence, attract more order flow to the Exchange thereby improving market-wide quality and price discovery. The resulting increased volume and liquidity would provide more trading opportunities and tighter spreads to all market participants and thus would promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act, 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. Instead, as discussed above, the Exchange believes that the proposed changes would encourage the submission of additional liquidity to a public exchange, thereby promoting market depth, price discovery and transparency and enhancing order execution opportunities for all market participants. As a result, the Exchange believes that the proposed change furthers the Commission's goal in adopting Regulation NMS of fostering integrated competition among orders, which promotes “more efficient pricing of individual stocks for all types of orders, large and small.”
The Exchange believes that the proposed rule change reflects this competitive environment because it modifies the Exchange's fees in a manner designed to encourage OTP Holders to direct trading interest (particularly Market Maker posted interest and cross asset activity) to the Exchange, to provide liquidity and to attract order flow. To the extent that this purpose is achieved, all the Exchange's market participants should benefit from the improved market quality and increased opportunities for price improvement.
The Exchange believes that the proposed change could promote competition between the Exchange and other execution venues, including those that also currently offer incentives based on Market Maker posted volume in IWM, QQQ, and SPY,
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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 is filing a proposal to amend the MIAX Options Fee Schedule (the “Fee Schedule”) to make non-substantive, clarifying changes.
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 Exchange proposes to amend the Fee Schedule to make non-substantive, clarifying changes to Sections 3)b) and 5)d)ii) for the monthly Trading Permit fees for Market Makers
First, the Exchange proposes to amend Section 3)b) of the Fee Schedule to amend the text below the table for the monthly Trading Permit fees applicable to Market Makers. Specifically, the Exchange proposes to add the following two clarifying sentences to begin the explanatory paragraph following the table for the monthly Trading Permit fees applicable to Market Makers:
For the calculation of the monthly Market Maker Trading Permits, the applicable fee rate is the lesser of either the per class basis or percentage of total national average daily volume measurement. The amount of monthly Market Maker Trading Permit Fee will be based upon the number of classes in which the Market Maker was assigned to quote on any given day within the calendar month, or upon the class volume percentages set forth in the above table.
The Exchange also proposes to remove the following sentence to the end of the explanatory paragraph, which is currently the first sentence of the explanatory paragraph below the table for the monthly Trading Permit fees applicable to Market Makers:
For the calculation of the monthly Market Maker Trading Permit Fees, the number of classes is defined as the greatest number of classes the Market Maker was assigned to quote in on any given day within the calendar month and the class volume percentage is based on the total national average daily volume in classes listed on MIAX in the prior calendar quarter.
In place of the deleted sentence described above, the Exchange proposes to insert the following two sentences, which will become sentences three and four of the revised explanatory paragraph:
The Exchange will assess MIAX Market Makers the monthly Market Maker Trading Permit Fee based on the greatest number of
The Exchange notes that these two sentences are a combination of sentences already included in the explanatory paragraph. In connection with all of the changes described above, the Exchange proposes to delete the following sentence:
The Exchange will assess MIAX Market Makers the monthly Market Maker Trading Permit Fee based on the greatest number of classes listed on MIAX that the MIAX Market Maker was assigned to quote in on any given day within a calendar month and the applicable fee rate that is the lesser of either the per class basis or percentage of total national average daily volume measurement.
The Exchange notes that all of these changes, when taken together, do not alter the calculation methodology for how the Exchange currently calculates monthly Trading Permit fees for Market Makers. These changes are being made solely to clarify the explanatory paragraph below the table of fees for monthly Trading Permit fees for Market Makers. The Exchange believes that these revised sentences summarize that the monthly Market Maker Trading Permit fee rate is the lesser of the per class basis or the percentage of total national average daily volume measure and better clarifies how the MIAX Market Maker Trading Permit fee will continue to be calculated and applied each month. The Exchange does not propose to amend the amount or calculation of the monthly Trading Permit fee for Market Makers.
Next, the Exchange proposes to amend Section 5)d)ii) of the Fee Schedule to make non-substantive, clarifying changes to the explanatory paragraph below the table of MEI Port fees applicable to Market Makers. The Exchange proposes to move the current first sentence of the explanatory paragraph below the table of MEI Port fees applicable to Market Makers in Section 5)d)ii) to now be the final sentence. In its place, the Exchange proposes to add the following sentence: “The applicable fee rate is the lesser of either the per class basis or percentage of total national average daily volume measurement.” In connection with this change, the Exchange proposes to amend the sentence that will now follow the new first sentence of the explanatory paragraph. In particular, the Exchange proposes to move footnote 26 to the second sentence of the explanatory paragraph to contain the defined term in footnote 26 for “MIAX Express Interface (`MEI')” Port.
Further, the Exchange proposes to amend the second sentence of the explanatory paragraph to remove the word “and” that connects the two clauses describing how the Exchange calculates the monthly MEI Port fee for Market Makers. In place of the word “and,” the Exchange proposes to clarify that the amount of the monthly MEI Port fee will be based upon the number of classes in which the Market Maker was assigned to quote on any given day within the calendar month, or upon the class volume percentages set forth in the MEI Port fee table.
The Exchange further proposes to remove the fifth sentence of the explanatory paragraph below the table of MEI Port fees in Section 5)d)ii) and move it up in the paragraph, immediately following the second sentence. With this change, the third sentence of the explanatory paragraph will be as follows: “The Exchange will assess MIAX Market Makers the monthly MEI Port Fee based on the greatest number of classes listed on MIAX that the MIAX Market Maker was assigned to quote in on any given day within a calendar month.” This phrase is currently contained in the fifth sentence of the explanatory paragraph and the Exchange now proposes to make the phrase its own sentence and move it earlier in the paragraph. The Exchange believes that these revised sentences summarize that the monthly MEI Port fee rate is the lesser of either the per class basis or percentage of total national average daily volume measurement and better clarifies how the monthly MEI Port fee for Market Makers will continue to be calculated and applied. The Exchange does not propose to amend the amount or calculation of the monthly MEI Port fee for Market Makers.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes the proposed changes are consistent with Section 6(b)(4) of the Act in that they are reasonable, equitable, and not unfairly discriminatory because they are non-substantive, clarifying changes regarding the Exchange's monthly Trading Permit and MEI Port fees applicable to Market Makers and will reduce the risk of confusion to market participants. The proposed changes promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general protect investors and the public interest by clarifying how the MIAX Market Maker Trading Permit fee and the MEI Port fee will be calculated and applied each month. The Exchange believes that these proposed changes will provide greater clarity to Members and the public regarding the Exchange's Fee Schedule and that it is in the public interest for the Fee Schedule to be accurate and concise so as to eliminate the potential for confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes the proposed change will not impose any burden on intra-market competition as the proposed rule change will have no impact on competition as it is not designed to address any competitive issue but rather is designed to remedy minor non-substantive, clarifying issues and provide added clarity to the Fee Schedule. In addition, the Exchange does not believe the proposal will impose any burden on inter-market competition as the proposal does not address any competitive issues and is intended to protect investors by providing further transparency regarding the Exchange's Fee Schedule.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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.
On September 23, 2021, the Public Company Accounting Oversight Board (the “Board” or the “PCAOB”) filed with the Securities and Exchange Commission (the “Commission”), pursuant to Section 107(b)
On September 22, 2021, the Board adopted the Proposed Rule,
The Proposed Rule establishes:
• The manner of the Board's determinations;
• The factors the Board will evaluate and the documents and information the Board will consider when assessing whether a determination is warranted;
• The form, public availability, effective date, and duration of such determinations; and
• The process by which the Board will reaffirm, modify, or vacate any such determinations.
The Proposed Rule will be effective promptly upon approval by the Commission.
The comment period on the Proposed Rule ended on October 18, 2021, and we did not receive any comments on the Proposed Rule. The PCAOB received and considered public comments prior to adopting the Proposed Rule.
In the PCAOB Adopting Release, the Board concluded that Section 103(a)(3)(C) of the Sarbanes-Oxley Act does not apply to the Proposed Rule.
Section 103(a)(3)(C) further provides that “[a]ny additional rules” adopted by the PCAOB after April 5, 2012, do not apply to audits of EGCs “unless the Commission determines that the application of such additional requirements is necessary or appropriate in the public interest, after considering the protection of investors and whether the action will promote efficiency, competition, and capital formation.” Since the Proposed Rule does not specify additional requirements for audits of EGCs, this provision does not apply to the Proposed Rule.
While we agree with the Board's conclusion that Section 103(a)(3)(C) of the Sarbanes-Oxley Act does not apply to the Proposed Rule, we nonetheless believe the Proposed Rule is necessary or appropriate in the public interest, after considering the protection of investors and whether the action will promote efficiency, competition, and capital formation. Specifically, by establishing a framework for the Board's determinations under the HFCAA and requiring firms to update their information promptly, all firms, including auditors of EGCs, and investors equally benefit from the transparency of the Board's determination set forth in the Proposed Rule.
The Commission has carefully reviewed and considered the Proposed Rule and the information submitted therewith by the PCAOB. In connection with the PCAOB's filing and the Commission's review,
A. The Commission finds that the Proposed Rule is consistent with the requirements of the Sarbanes-Oxley Act and the securities laws and is necessary or appropriate in the public interest or for the protection of investors; and
B. Separately, the Commission finds that Section 103(a)(3)(C) of the Sarbanes-Oxley Act does not apply to the Proposed Rule.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to amend the MIAX Emerald Fee Schedule (the “Fee Schedule”) to make non-substantive, clarifying changes.
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 Exchange proposes to amend the Fee Schedule to make non-substantive, clarifying changes to Sections (3)(b) and (5)(d)(ii) for the monthly Trading Permit fees for Market Makers
First, the Exchange proposes to amend Section 3(b) of the Fee Schedule to amend the text below the table for the monthly Trading Permit fees applicable to Market Makers. Specifically, the Exchange proposes to add the following two clarifying sentences to begin the explanatory paragraph following the table for the monthly Trading Permit fees applicable to Market Makers:
For the calculation of the monthly Market Maker Trading Permits, the applicable fee rate is the lesser of either the per class basis or percentage of total national average daily volume measurement. The amount of monthly Market Maker Trading Permit Fee will be based upon the number of classes in which the Market Maker was assigned to quote on any given day within the calendar month, or upon the class volume percentages set forth in the above table.
The Exchange also proposes to remove the following sentence, which is currently the first sentence of the explanatory paragraph below the table for the monthly Trading Permit fees applicable to Market Makers:
For the calculation of the monthly Market Maker Trading Permit Fees, the number of classes is defined as the greatest number of classes the Market Maker was assigned to quote in on any given day within the calendar month and the class volume
In place of the deleted sentence described above, the Exchange proposes to insert the following two sentences, which will become sentences three and four of the revised explanatory paragraph:
The Exchange will assess MIAX Emerald Market Makers the monthly Market Maker Trading Permit Fee based on the greatest number of classes listed on MIAX Emerald that the MIAX Emerald Market Maker was assigned to quote in on any given day within a calendar month. The class volume percentage is based on the total national average daily volume in classes listed on MIAX Emerald in the prior calendar quarter.
The Exchange notes that these two sentences are a combination of sentences already included in the explanatory paragraph. In connection with all of the changes described above, the Exchange proposes to delete the following sentence:
The Exchange will assess MIAX Emerald Market Makers the monthly Market Maker Trading Permit Fee based on the greatest number of classes listed on MIAX Emerald that the MIAX Emerald Market Maker was assigned to quote in on any given day within a calendar month and the applicable fee rate that is the lesser of either the per class basis or percentage of total national average daily volume measurement.
The Exchange notes that all of these changes, when taken together, do not alter the calculation methodology for how the Exchange currently calculates monthly Trading Permit fees for Market Makers. These changes are being made solely to clarify the explanatory paragraph below the table of fees for monthly Trading Permit fees for Market Makers. The Exchange believes that these revised sentences summarize that the monthly Market Maker Trading Permit fee rate is the lesser of the per class basis or the percentage of total national average daily volume measure and better clarifies how the MIAX Market Maker Trading Permit fee will continue to be calculated and applied each month. The Exchange does not propose to amend the amount or calculation of the monthly Trading Permit fee for Market Makers.
Next, the Exchange proposes to amend Section 5(d)(ii) of the Fee Schedule to make non-substantive, clarifying changes to the explanatory paragraph below the table of MEI Port fees applicable to Market Makers. The Exchange proposes to move the current first sentence of the explanatory paragraph below the table of MEI Port fees applicable to Market Makers in Section 5(d)(ii) to now be the final sentence. In its place, the Exchange proposes to add the following sentence: “The applicable fee rate is the lesser of either the per class basis or percentage of total national average daily volume measurement.” In connection with this change, the Exchange proposes to amend the sentence that will now follow the new first sentence of the explanatory paragraph. In particular, the Exchange proposes to add “MIAX Emerald Express Interface” to the second sentence of the explanatory paragraph to contain the full term, “MIAX Express Interface (`MEI')” Port. The final sentence of the explanatory paragraph will now read as follows: “MIAX Emerald will assess monthly MEI Port Fees on Market Makers in each month the Member has been credentialed to use the MEI Port in the production environment and has been assigned to quote in at least one class.”
Further, following the above changes, the Exchange proposes to amend the second sentence of the explanatory paragraph to remove the word “and” that connects the two clauses describing how the Exchange calculates the monthly MEI Port fee for Market Makers. In place of the word “and,” the Exchange proposes to clarify that the amount of the monthly MEI Port fee will be based upon the number of classes in which the Market Maker was assigned to quote on any given day within the calendar month, or upon the class volume percentages set forth in the MEI Port fee table.
The Exchange further proposes to remove the fifth sentence of the explanatory paragraph below the table of MEI Port fees in Section 5(d)(ii) and move it up in the paragraph, immediately following the second sentence. With this change, the third sentence of the explanatory paragraph will be as follows: “The Exchange will assess MIAX Emerald Market Makers the monthly MEI Port Fee based on the greatest number of classes listed on MIAX Emerald that the MIAX Emerald Market Maker was assigned to quote in on any given day within a calendar month.” This phrase is currently contained in the fifth sentence of the explanatory paragraph and the Exchange now proposes to make the phrase its own sentence and move it earlier in the paragraph. The Exchange believes that these revised sentences summarize that the monthly MEI Port fee rate is the lesser of either the per class basis or percentage of total national average daily volume measurement and better clarifies how the monthly MEI Port fee for Market Makers will continue to be calculated and applied. The Exchange does not propose to amend the amount or calculation of the monthly MEI Port fee for Market Makers.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The Exchange believes the proposed changes are consistent with Section 6(b)(4) of the Act in that they are reasonable, equitable, and not unfairly discriminatory because they are non-substantive, clarifying changes regarding the Exchange's monthly Trading Permit and MEI Port fees applicable to Market Makers and will reduce the risk of confusion to market participants. The proposed changes promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general protect investors and the public interest by clarifying how the MIAX Emerald Market Maker Trading Permit fee and the MEI Port fee will be calculated and applied each month. The Exchange believes that these proposed changes will provide greater clarity to Members and the public regarding the Exchange's Fee Schedule and that it is in the public interest for the Fee Schedule to be accurate and concise so as to eliminate the potential for confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes the proposed change will not impose any burden on
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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.
On April 21, 2021, Cboe Exchange, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Currently, position limits for options on ETFs traded on the Exchange, such as those subject to this proposal, as amended, are determined pursuant to Exchange Rule 8.30, and generally vary according to the number of outstanding shares and past six-month trading volume of the underlying security. Options on the securities with the largest numbers of outstanding shares and trading volume have a standard option position limit of 250,000 contracts (with adjustments for splits, re-capitalizations, etc.) on the same side of the market.
Options on LQD and GDX are currently subject to the standard position limit of 250,000 contracts as set forth in Exchange Rule 8.30.
Specifically, in support of its proposal to increase the position limit for options on GDX from 250,000 contracts to 500,000 contracts, the Exchange, among other things, compares the trading characteristics of GDX to those of the iShares MSCI Brazil Capped ETF (“EWZ”), the iShares 20+ Year Treasury Bond Fund ETF (“TLT”), the iShares MSCI Japan ETF (“EWJ”), and the iShares iBoxx High Yield Corporate Bond Fund (“HYG”), options on all of which currently have a position limit of 500,000 contracts.
In support of its proposal to increase the position limit for options on LQD from 250,000 contracts to 500,000 contracts, the Exchange, among other things, compares the trading characteristics of LQD to those of EWZ, TLT, and EWJ, options on all of which currently have a position limit of 500,000 contracts.
The Exchange states that the current position limits for options on LQD and GDX may have impeded the ability of market makers to make markets on the Exchange.
With regard to the concerns that position limits generally are meant to address, the Exchange represents that the structure of LQD and GDX, the considerable market capitalization of these ETFs and their underlying component securities, and the liquidity of the markets for options on these ETFs and the underlying component securities mitigate concerns regarding potential manipulation of the products and disruption of the underlying markets due to the increased position limits.
In addition, the Exchange states that the options reporting requirements of Exchange Rule 8.43 would continue to be applicable to the options subject to this proposal.
The Exchange also represents that the existing surveillance procedures and reporting requirements at the Exchange and other self-regulatory organizations are capable of properly identifying disruptive and/or manipulative trading activity.
The Exchange further states that the current financial requirements imposed by the Exchange and by the Commission adequately address concerns that a TPH or its customer may try to maintain an inordinately large unhedged position in the options subject to this proposal.
The Commission finds that the proposed rule change, as modified by Amendment Nos. 1, 2, and 3, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
Position and exercise limits serve as a regulatory tool designed to deter manipulative schemes and adverse market impact surrounding the use of options. Since the inception of standardized options trading, the options exchanges have had rules limiting the aggregate number of options contracts that a member or customer may hold or exercise.
Over the years, the Commission has taken a gradual, evolutionary approach toward expansion of position and exercise limits for option products overlying certain ETFs where there is considerable liquidity in both the underlying securities markets and the options markets.
After careful consideration of the proposal, as modified by Amendment Nos. 1, 2, and 3, the Commission believes that it is reasonable for the Exchange to increase the position and exercise limits for options on LQD and GDX to 500,000 contracts. As noted above, the markets for standardized options on these securities and for the underlying securities have substantial trading volume and liquidity. The Commission believes that this liquidity should reduce the possibility of manipulation and underlying market disruption.
The Commission also has considered the creation and redemption processes for the ETFs subject to the proposal; the existence of an issuer arbitrage mechanism that helps keep each ETF's price in line with the value of its underlying portfolio when overpriced or trading at a discount to the securities on which it is based; and how these processes can serve to mitigate the potential price impact that might otherwise result from increased position limits.
In addition, as discussed above, the Exchange believes that current margin and net capital requirements serve to limit the size of positions maintained by any one account.
The Commission also believes that the reporting requirements imposed by Exchange Rule 8.43,
In sum, given the measures of liquidity for the options subject to this proposal and the underlying securities, the creation and redemption processes and issuer arbitrage mechanisms that exist relating to the underlying instruments, the margin and capital requirements cited above, the Exchange's options reporting requirements, and the Exchange's surveillance procedures and agreements with other markets, the Commission believes that it is consistent with the Act to increase the position and exercise limits to 500,000 contracts for options on LQD and GDX.
Interested persons are invited to submit written data, views, and arguments concerning whether Amendment Nos. 2 and 3 are 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment Nos. 1, 2, and 3, prior to the thirtieth day after the date of publication of notice of the filing of Amendment Nos. 2 and 3 in the
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 principal purpose of the proposed amendments is for ICE Clear Europe to amend its Liquidity Management Procedures and Investment Management Procedures to make certain clarifications and updates.
In its filing with the Commission, ICE Clear Europe 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. ICE Clear Europe has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
ICE Clear Europe is proposing to amend its Liquidity Management Procedures to (i) reflect that cash substitution requests may be as a source of payment obligations relevant to liquidity management, (ii) include certain additional procedures and requirements for the Clearing House with respect to adding new accounts or amending existing accounts with counterparties and (iii) clarify how intraday collateral is being monitored. ICE Clear Europe also proposes to amend its Investment Management Procedures to (i) add additional detail with respect to Maximum Issuer/Counterparty Concentration Limits in respect of reverse repurchase agreements and (ii) add additional concentration limits for investment of customer funds of FCM/BD Clearing Members.
The list of payment obligations relating to liquidity management would be revised to reflect explicitly that any cash substitution requests by Clearing Members would be a source of payment obligations. The amendment does not reflect a change in any Clearing House practice or source of obligations but is intended to make the list more comprehensive.
A new section relating to special considerations for account opening would be added. The amendments would provide that when the Clearing House is adding new accounts or amending existing accounts with counterparties, the Treasury Department would advise the Legal and Compliance Departments in accordance with relevant departmental procedures to ensure that relevant banking agreements are modified, any side or acknowledge letters are obtained and any required regulatory submissions are timely made, as appropriate. Such scenarios would include the opening of new accounts for futures customer funds in accordance with CFTC § 1.20(g).
Provisions relating to haircutting of non-cash collateral and cash collateral in currencies other than the required currency would be amended to correct the reference to the Credit Risk team (not the Clearing Risk team) that monitors the price of such assets. The amendments would also state that the price of such assets would be monitored during the day against the applied haircuts, as a clarification that reflects current practice. The statement that the Credit Risk team would call for additional IM in the event of a shortfall in the value of the collateral held would be removed as unnecessary to be in the Liquidity Management Procedures as that is addressed in other existing Clearing House policies.
Other technical, typographical and formatting edits would be made.
In the Table of Authorised Investments and Concentration Limits for Cash from CMs and from Skin In The Game (the “Table”), the Maximum Issuer/Counterparty Concentration Limits applicable to reverse repurchase agreements would be revised to clarify that the numerical concentration limits are based on total cash balance per counterparty group, consistent with existing practice. Additionally, a footnote would be added to such section to provide that breaches of those issuer limits for reverse repurchase agreements solely due to valuation differences or operational failure/error will not be considered as a breach of policy. Such updates are to provide additional detail about existing practices in order to provide clarification and are not intended to reflect any change such practices.
The Table would also be updated to add an additional concentration limits for FCM customer funds. Specifically, with respect to reverse repurchase agreements, the Maximum Issuer/Counterparty Concentration Limits would be 25% of total FCM customer cash balance per counterparty group. The amendment is intended to document an existing limitation based on CFTC Rule 1.25.
ICE Clear Europe believes that the amendments to the Liquidity Management Procedures and the Investment Management Procedures are consistent with the requirements of Section 17A of the Act
The proposed amendments to the Liquidity Management Procedures and the Investment Management Procedures are designed to update certain of the Clearing House's practices with respect to the management of liquidity and investments, respectively. The proposed updates to the Liquidity Management Procedures would more clearly certain practices relating to monitoring of collateral prices and enhance certain account opening procedures. The proposed updates to the Investment Management Procedures would clarify certain concentration limits relating to investments of assets provided by Clearing Members. The proposed amendments thus enhance the overall risk management of the Clearing House and promote the accuracy and stability of the Clearing House's policies and procedures and the prompt and accurate clearance and settlement of cleared contracts. The proposed amendments to the Liquidity Management Procedures and the Investment Management Procedures are thus also generally consistent with the protection of investors and the public interest in the safe operation of the Clearing House. The updates to each of the Liquidity Management Procedures and the Investment Management Procedures will also facilitate safe management of the cash held by the Clearing House from Clearing Member's and their customers, and thus enhance the safeguarding of securities and funds in ICE Clear Europe's custody or control or for which it is responsible. Accordingly, the amendments satisfy the requirements of Section 17A(b)(3)(F).
The proposed revisions to the Liquidity Management Procedures and the Investment Management Procedures are also consistent with relevant provisions of Rule 17Ad-22. Rule 17Ad-22(e)(3)(i)
Rule 17A-22(e)(16) requires clearing agencies to safeguard their own and their “participants' assets, minimize the risk of loss and delay in access to these assets, and invest such assets in instruments with minimal credit, market and liquidity risks.”
ICE Clear Europe does not believe the proposed documents would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purposes of the Act. The changes are being proposed in order to update the Liquidity Management Procedures and the Investment Management Procedures to provide clarifications and additional details where necessary in order to reflect existing practices and are not intended to impose new requirements on Clearing Members. The terms of clearing are not otherwise changing. ICE Clear Europe does not believe that proposed amendments would adversely affect competition among Clearing Members or other market participants or affect the ability of market participants to access clearing generally. Therefore, ICE Clear Europe does not believe the proposed rule change imposes any burden on competition that is inappropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed amendments have not been solicited or received by ICE Clear Europe. ICE Clear Europe will notify the Commission of any written comments received with respect to the proposed rule change and adoption.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be 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.
Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the Commonwealth of Kentucky dated 11/03/2021.
Issued on 11/03/2021.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 17260 6 and for economic injury is 17261 0.
The State which received an EIDL Declaration # is Kentucky.
In accordance with section 4314(c)(4) of 5 United States Code, the Department of State has appointed the following individuals to the Performance Review Board for Career and Non-Career Senior Executive Service members:
Erin M. Barclay, Coordinator for Democratic Renewal, Office of the Undersecretary for Civilian Security, Democracy and Human Rights, Department of State;
Hilary Batjer Johnson, Deputy Coordinator, Bureau of Counterterrorism, Department of State;
Jane Rhee, Deputy Assistant Secretary, International Organization Affairs, Department of State;
Keith A. Jones, Chief Information Officer, Information Resource Management; Department of State
Kerry Neal, Managing Director, Comptroller and Global Financial Services, Department of State;
Roger Carstens, Special Envoy, Office of the Special Presidential Envoy for Hostage Affairs, Department of State;
Shawn M. Pompian, Assistant Legal Adviser, Office of the Legal Adviser, Department of State.
and,
Sherry Hannah, Deputy Director, Bureau of Budget & Planning, Department of State.
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to an agreement with their foreign owner or custodian for temporary display in the exhibition “Fashioning an Empire: Safavid Textiles from the Museum of Islamic Art, Doha” at the Arthur M. Sackler Gallery, Smithsonian Institution, Washington, District of Columbia, and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Chi D. Tran, Program Administrator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Connecticut Southern Railroad, Inc. (CSO), has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
CSO has certified that: (1) No local traffic has moved over the Line since approximately July 2016; (2) because the Line is not a “through line,” there is no overhead traffic that would need to be rerouted; (3) no formal complaint filed by a user of rail service on the Line (or by state or local government on behalf of such user) regarding cessation of service over the Line either is pending with the Surface Transportation Board (Board) or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(b) and 1105.8(c) (notice of environmental and historic reports), 49 CFR 1105.12 (newspaper publications), and 49 CFR 1152.50(d)(1) (notice to government agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received,
All pleadings, referring to Docket No. AB 979 (Sub-No. 3X), should be filed with the Surface Transportation Board via e-filing on the Board's website. In addition, a copy of each pleading must be served on CSO's representative, Eric M. Hocky, Clark Hill PLC, Two Commerce Square, 2001 Market Street, Suite 2620, Philadelphia, PA 19103.
If the verified notice contains false or misleading information, the exemption is void ab initio.
CSO has filed a combined environmental and historic report that addresses the potential effects, if any, of the abandonment on the environment and historic resources. OEA will issue a Draft Environmental Assessment (Draft EA) by November 15, 2021. The Draft EA will be available to interested persons on the Board's website, by writing to OEA, or by calling OEA at (202) 245-0294. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339. Comments on environmental or historic preservation matters must be filed within 15 days after the Draft EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), CSO shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by CSO's filing of a notice of consummation by November 10, 2022, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Missouri Eastern Railroad, LLC (MER), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire: (1) From V and S Railway, LLC (V&S), an approximately 42.89-mile rail line between milepost 19.0 near Vigus, Mo., and milepost 61.89 near Union, Mo., (the Line); and (2) incidental overhead trackage rights over a rail line owned by Union Pacific Railroad Company between milepost 19.0 near Vigus and milepost 10.3 at Rock Island Junction, Mo. (the TR Segment).
According to the verified notice, MER and V&S are in the process of finalizing the terms of an asset purchase agreement (the Agreement), pursuant to which MER will assume ownership of the Line. The verified notice indicates that Central Midland Railway Company (Central Midland) currently operates the Line (and also leases the TR Segment), and that, in light of MER's purchase of the Line, Central Midland has agreed that MER will replace it as the common carrier operator on the Line, thus effectuating a change of operator. MER states that it plans to replace Central Midland as the common carrier operator on the Line on or after January 1, 2022,
MER certifies that the transaction does not involve any provision, restriction, or agreement that would limit future interchange with a third-party connecting carrier. MER further certifies that its projected annual revenues resulting from the transaction will not exceed $5 million and will not result in MER's becoming a Class I or Class II rail carrier. Under 49 CFR 1150.32(b), a change in operator requires that notice be given to shippers. MER has certified that notice of the proposed transaction has been provided to shippers on the Line.
The earliest this transaction may be consummated is November 24, 2021. MER states that it expects to acquire the Line on or after that date and to commence operations over the Line and its incidental trackage rights over the TR Segment on or after January 1, 2022.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than November 17, 2021 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36550, should be filed with the Surface Transportation Board via e-filing on the Board's website. In addition, a copy of each pleading must be served on MER's representative, Robert A. Wimbish, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606.
According to MER, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b)(1).
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
OPSEU Pension Plan Trust Fund (OPTrust), Jaguar Transport Holdings, LLC (JTH), and Jaguar Rail Holdings, LLC (JRH, and collectively with OPTrust and JTH, Jaguar), all noncarriers, have filed a verified notice of exemption under 49 CFR 1180.2(d)(2) to continue in control of Missouri Eastern Railroad, LLC (MER), a noncarrier established by Jaguar to acquire a railroad line (and related, incidental overhead trackage rights) in Missouri, upon MER's becoming a Class III rail carrier.
This transaction is related to a concurrently filed verified notice of exemption in
Jaguar states that it will continue in control of MER upon MER's becoming a Class III rail carrier. According to the verified notice, OPTrust indirectly controls JTH, which currently controls, indirectly: Three Class III railroads directly controlled by JRH—Southwestern Railroad, Inc., Texas & Eastern Railroad, LLC, and Wyoming and Colorado Railroad, Inc., (WYCO) (which also does business under the name Oregon Eastern Railroad); two Class III railroads indirectly controlled by JRH through WYCO—Cimarron Valley Railroad, L.C., and Washington Eastern Railroad, LLC; and one Class III railroad indirectly controlled by JTH through its subsidiary Jaguar Transport, LLC—West Memphis Base Railroad, L.L.C. The lines of the rail carriers controlled by JTH and JRH are located in Arkansas, Colorado, Kansas, Missouri, New Mexico, Oklahoma, Oregon, and Washington.
Jaguar states that: (1) The Line does not connect with any other rail lines operated by carriers controlled by JTH or JRH and none of those rail lines connect with each other; (2) the continuance in control transaction is not part of a series of anticipated transactions that would connect the Line with any other rail lines in the JTH or JRH corporate families or that would connect any of those rail lines with each other; and (3) the transaction does not involve a Class I rail carrier. Therefore, the proposed transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. However, 49 U.S.C. 11326(c) does not provide for labor protection for transactions under 49 U.S.C. 11324 and 11325 that involve only Class III rail carriers. Because this transaction involves Class III rail carriers only, the Board, under the statute, may not impose labor protective conditions for this transaction.
The earliest this transaction may be consummated is November 24, 2021, the effective date of the exemption (30 days after the verified notice was filed). If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed no later than November 17, 2021.
All pleadings, referring to Docket No. FD 36551, should be filed with the Surface Transportation Board via e-filing on the Board's website. In addition, a copy of each pleading must be served on Jaguar's representative, Robert A. Wimbish, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606.
According to Jaguar, this action is excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b)(1).
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Susquehanna River Basin Commission.
Notice.
Due to technical issues with the previously scheduled November 4th public hearing, the Susquehanna River Basin Commission will hold a rescheduled public hearing on December 2, 2021. The Commission will hold this hearing both in-person and telephonically. At this public hearing, the Commission will hear testimony on the projects listed in the Supplementary Information section of this notice. The Commission will also hear testimony on a proposed policy, Fee Incentives for the Withdrawal and Consumptive Use of AMD Impacted Waters & Treated Wastewater (formerly the draft Use of Lesser Quality Waters Policy), as well as proposals to amend its Regulatory Program Fee Schedule and a proposed Letter of Understanding (LOU) regarding program coordination between the Susquehanna River Basin Commission and the Pennsylvania Department of Environmental Protection (DEP). Such projects and proposals are intended to be scheduled for Commission action at its next business meeting, tentatively scheduled for December 17, 2021, which will be noticed separately. The public should take note that this public hearing will be the only opportunity to offer oral comment to the Commission for the listed projects and proposals. The deadline for the submission of written comments has been extended to December 13, 2021.
The public hearing will convene on December 2, 2021, at 6:30 p.m. The public hearing will end at 9:00 p.m. or at the conclusion of public testimony, whichever is earlier. The deadline for the submission of written comments is December 13, 2021.
This hearing will be conducted at Commission headquarters at 4423 North Front Street, Harrisburg, PA, with the option to participate by telephone conference. Conference Call # 1-888-387-8686 (toll free), Access Code/PIN: 917 968 6050.
Jason Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423 or
Information concerning the applications for the projects is available at the Commission's Water Application and Approval Viewer at
The Commission is proposing a policy for Fee Incentives for the Withdrawal and Consumptive Use of AMD Impacted Waters & Treated Wastewater (formerly the draft Use of Lesser Quality Waters Policy, which was revised based on prior public comment). This policy would replace the current Policy No. 2009-01. The Commission is also proposing changes to its Regulatory Program Fee Schedule, which it typically does on an annual basis. The Commission is also seeking public comment on the LOU with the Pennsylvania DEP. The LOU would replace the current MOU with DEP signed in 1999. The public hearing will cover the following projects:
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Interested parties may attend or call into the hearing to offer comments to the Commission on any business listed above required to be the subject of a public hearing. Given the telephonic option to the hearing, the Commission
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of charter amendments.
This notice announces charter amendments of the Drone Advisory Committee, a Federal advisory committee that works with industry, community stakeholders, and the public to improve the development of the FAA's regulations. The charter amendments were filed with Congress and took effect on October 26, 2021. The Committee will operate for 2 years unless its charter is renewed in accordance with the Federal Advisory Committee Act.
Kamisha Walker or Gary Kolb, UAS Integration Office, Federal Aviation Administration, telephone (202) 267-4441; email
Pursuant to section 14(a)(2)(A) of the Federal Advisory Committee Act (Pub. L. 92-463), the FAA is giving notice of amendments to the charter for the Drone Advisory Committee (DAC), which is renamed the Advanced Aviation Advisory Committee (AAAC). The DAC is a broad-based Federal advisory committee that provides the FAA with advice on key UAS integration issues by helping to identify challenges and prioritize improvements. The committee advises the DOT through the FAA on improving the efficiency and safety of integrating advanced aviation technologies—including unmanned aircraft systems (UAS) and advanced air mobility (AAM), into the National Airspace System (NAS)—while equipping and enabling communities to inform how UAS, AAM and other technologies may operate in ways that are beneficial to those communities. Members represent airports and airport communities; pilot and controller labor groups; local, state, and tribal governments; navigation, communication, surveillance, and air traffic management capability providers; research, development, and academia; agricultural interests, traditional piloted aviation operators; UAS hardware component manufacturers; UAS manufacturers; corporate UAS operators; citizen UAS Operators; UAS software application manufacturers; advanced air mobility; community advocates; and industry associations or other specific areas of interest as determined by the FAA Administrator or Secretary of Transportation. For more information see the AAAC website at:
Issued in Washington, DC.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Solicitation of nominations for appointment to the Advanced Aviation Advisory Committee (AAAC).
This notice announces a solicitation for nominations for membership on the Advanced Aviation Advisory Committee (AAAC)—previously known as Drone Advisory Committee. This solicitation supersedes the previous Solicitation of Nominations for Appointment to the Drone Advisory Committee published June 18, 2020.
Nominations must be received no later than 6:00 p.m. Eastern Time on January 10, 2022. Nominations received after the above due date may be retained for evaluation for future AAAC vacancies after all other nominations received by the due date have been evaluated and considered.
Nominations can be submitted electronically (by email) to Kamisha Walker in the FAA's UAS Integration Office, at
Kamisha Walker at
The AAAC is an advisory committee established under DOT's authority, in accordance with the provisions of the Federal Advisory Committee Act (FACA) as amended, Public Law 92-463, 5 U.S.C. App. 2. The objective of the AAAC is to provide independent advice and recommendations to the FAA and in response to specific taskings received directly from the FAA. The advice, recommendations, and taskings relate to improving the efficiency and safety of integrating advanced aviation technologies—including unmanned aircraft systems (UAS) and advanced air mobility (AAM), into the National Airspace System (NAS)—while equipping and enabling communities to inform how UAS, AAM and other technologies may operate in ways that are least impactful to those communities. In response to FAA requests, the AAAC may provide the FAA with information that may be used for tactical and strategic planning purposes.
This notice seeks to fill current and future vacancies on the AAAC and does not affect the status of AAAC members whose terms have not expired.
The AAAC acts solely in an advisory capacity and does not exercise program management responsibilities. Decisions directly affecting implementation of transportation policy will remain with the FAA Administrator and the Secretary of Transportation. The AAAC duties include:
a. Undertaking tasks only assigned by the FAA.
b. Deliberating on and approving recommendations for assigned tasks in meetings that are open to the public.
c. Responding to ad hoc informational requests from the FAA and/or providing input to the FAA on the overall AAAC structure (including structure of the subcommittees and or task groups).
All AAAC members serve at the pleasure of the Secretary of Transportation. To the extent practicable, the membership of the AAAC shall include persons of diverse backgrounds in race, ethnicity, religion, sexual orientation, and gender. The AAAC will have no more than 41 members. Other membership terms include:
a. An appointment of up to two years.
b. Service without charge and without government compensation. Representation of a particular interest of employment, education, experience, or affiliation with a specific aviation related organization.
c. Ability to attend all AAAC meetings (estimated three meetings per year).
a. A short biography of the nominee, including professional and academic credentials.
b. A résumé or curriculum vitae, which must include relevant job experience, qualifications, as well as contact information (email, telephone, and mailing address).
c. A one-page statement describing how the candidate will benefit the AAAC, considering current membership and the candidate's unique perspective that will advance the conversation. This statement must also identify a primary and secondary interest to which the candidate's expertise best aligns. Finally, candidates should state their previous experience on Federal Advisory Committees and/or Aviation Rulemaking Committees (if any), their level of knowledge in their above stakeholder groups, and the size of their constituency they represent or are able to reach.
Up to three letters of recommendation may be submitted but are not required. Each letter may be no longer than one page. Evaluations will be based on the materials submitted.
Issued in Washington, DC.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of actions on special permit applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein.
Comments must be received on or before December 10, 2021.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington DC.
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for modification of special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before November 26, 2021.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington DC.
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of applications for special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations, notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft.
Comments must be received on or before December 10, 2021.
Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Donald Burger, Chief, Office of Hazardous Materials Safety General Approvals and Permits Branch, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH-13, 1200 New Jersey Avenue Southeast, Washington DC.
This notice of receipt of applications for special permit is published in accordance with part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Notice of open meeting.
This notice announces an open meeting of the Community Development Advisory Board (the Advisory Board), which provides advice to the Director of the Community Development Financial Institutions Fund (CDFI Fund). This meeting will be conducted virtually. A link to the livestream of the meeting will be posted at the top of
The meeting will be held from 3:30 p.m. to 5:00 p.m. Eastern Time on Tuesday, November 30, 2021.
In general, the CDFI Fund will make all statements available in their original format, including any business or personal information provided such as names, addresses, email addresses, or telephone numbers, for virtual public inspection and copying. The CDFI Fund is open on official business days between the hours of 9:00 a.m. and 5:00 p.m. Eastern Time. You can make arrangements to virtually inspect statements by emailing
Contact Bill Luecht, Senior Advisor, Office of Legislative and External Affairs, CDFI Fund; (202) 653-0322 (this is not a toll free number); or
Section 104(d) of the Riegle Community Development and Regulatory Improvement Act of 1994 (Pub. L. 103-325), which created the CDFI Fund, established the Advisory Board. The charter for the Advisory Board has been filed in accordance with the Federal Advisory Committee Act, as amended (5 U.S.C. App.), and with the approval of the Secretary of the Treasury.
The function of the Advisory Board is to advise the Director of the CDFI Fund (who has been delegated the authority to administer the CDFI Fund) on the policies regarding the activities of the CDFI Fund. The Advisory Board does not advise the CDFI Fund on approving or declining any particular application for monetary or non-monetary awards.
In accordance with section 10(a) of the Federal Advisory Committee Act, 5 U.S.C. App. 2 and the regulations thereunder, Bill Luecht, Designated Federal Officer of the Advisory Board, has ordered publication of this notice that the Advisory Board will convene an open meeting, which will be conducted virtually, from 3:30 p.m. to 5:00 p.m. Eastern Time on Tuesday, November 30, 2021. Members of the public who wish to view the meeting can access the link to the livestream of the meeting at the top of
The Advisory Board meeting will include remarks by Treasury officials, the swearing-in of new members, a report from the CDFI Fund Director on the activities of the CDFI Fund since the last Advisory Board meeting, and a discussion of future priorities.
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Joint notice, request for comment.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the OCC, the Board, and the FDIC (the agencies) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. On August 13, 2021, the agencies, under the auspices of the Federal Financial Institutions Examination Council (FFIEC), requested public comment for 60 days on a proposal to extend for three years, without revision, the Foreign Branch Report of Condition (FFIEC 030) and the Abbreviated Foreign Branch Report of Condition (FFIEC 030S), which are currently approved collections of information. The comment period for this notice expired on October 12, 2021. As described in the
Comments must be submitted on or before December 10, 2021.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the “FFIEC 030 or FFIEC 030S,” will be shared among the agencies.
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You may review comments and other related materials that pertain to this information collection beginning on the date of publication of the second notice for this collection by the following method:
• Viewing Comments Electronically: Go to
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All public comments are available on the Board's website at
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503; by fax to (202) 395-6974; or by email to
For further information about the proposed revisions to the information collections discussed in this notice, please contact any of the agency staff whose names appear below. In addition, copies of the report forms for the FFIEC 030 and FFIEC 030S can be obtained at the FFIEC's website (
The agencies propose to extend for three years, without revision, the FFIEC 030 and the FFIEC 030S.
This information collection is mandatory under the following authorities: 12 U.S.C. 602 (Board); 12 U.S.C. 161 and 602 (OCC); and 12 U.S.C. 1828 (FDIC). This information collection is given confidential treatment under 5 U.S.C. 552(b)(4) and (8).
The FFIEC 030 collects asset and liability information for foreign branches of insured U.S. banks and insured U.S. savings associations (U.S. depository institutions) and is required for regulatory and supervisory purposes. The information is used to analyze the foreign operations of U.S. institutions. All foreign branches of U.S. institutions regardless of charter type file this report as provided in the instructions to the FFIEC 030 and FFIEC 030S.
A U.S. depository institution generally must file a separate report for each foreign branch, but in some cases may consolidate filings for multiple foreign branches in the same country, as described below.
A branch with either total assets of at least $2 billion or commitments to
A U.S. depository institution with a foreign branch having total assets of $50 million or more, but less than or equal to $250 million that does not meet the criteria to file the FFIEC 030 report must file the FFIEC 030S report for the foreign branch on an annual basis as of December 31. A U.S. depository institution with a foreign branch having total assets of less than $50 million is exempt from filing the FFIEC 030 and 030S reports.
Foreign branches that meet the criteria for reporting on a quarterly basis must not be consolidated with any other branch. U.S. depository institutions may, at their option, consolidate the figures for all other branches located in the same country.
On August 13, 2021, the agencies requested comment for 60 days on a proposal to extend for three years, without revision, the FFIEC 030 and FFIEC 030S.
The commenter, an institution, asked the agencies to clarify how to report equity securities with readily determinable fair values not held for trading in the FFIEC 030. The commenter stated that reporting these securities in line 4(b), “Other securities (debt and equity)” would align the FFIEC 030 with the Call Report classification. The agencies agree with the commenter's suggestions and will revise the FFIEC 030 instructions accordingly. The agencies will extend the report forms without revision.
Public comment is requested on all aspects of this notice. Comment is specifically invited on:
a. Whether the information collection is necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
b. The accuracy of the agencies' estimate 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;
d. Ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted to the Board in response to this notice will be shared with the other agencies. All comments will become a matter of public record.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Revenue Procedure 2015-41—Section 482—Allocation of Income and Deductions Among Taxpayers.
Written comments should be received on or before January 10, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Sara Covington, at (737) 800-6149, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Form 8892, Application for Automatic Extension of Time to File Form 709 and/or Payment of Gift/Generation-Skipping Transfer Tax.
Written comments should be received on or before January 10, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Sara Covington at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or at (737) 800-6149 or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning safe harbor for valuation and mark to market accounting method for dealers under section 475.
Written comments should be received on or before January 10, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Sara Covington, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or (737) 800-6149 or, through the internet at
The following paragraph applies to all the collections of information covered by this notice.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Fish and Wildlife Service, Interior.
Final rule; withdrawal and revision.
We, the U.S. Fish and Wildlife Service (Service), revise the designation of critical habitat for the northern spotted owl (
As of November 10, 2021, FWS is withdrawing the final rule published January 15, 2021, at 86 FR 4820, delayed on March 1, 2021, at 86 FR 11892, and further delayed on April 30, 2021 at 86 FR 22876. This rule is effective December 10, 2021.
This final rule is available on the internet at
• Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at
• The coordinates from which the Service generated the maps are included in the decision file for the rulemaking and are available at
• The Geographic Information System data reflecting the revised critical habitat units can be downloaded at
Paul Henson, Ph.D., State Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th Avenue, Portland, OR 97266; telephone 503-231-6179. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
The Service is excluding lands that are within the Harvest Land Base land-use allocation described by the U.S. Department of the Interior Bureau of Land Management (BLM) in two recently revised resource management plans (RMPs) for areas it manages in Oregon: The Northwestern Oregon and Coastal Oregon Record of Decision and Resource Management Plan (BLM 2016a) and the Southwestern Oregon Record of Decision and Resource Management Plan (BLM 2016b). The BLM consulted with the Service on the effects of those RMPs, and in our resulting Biological Opinion, we found the BLM's proposed harvest over time of those areas allocated to the Harvest Land Base would not result in destruction or adverse modification of northern spotted owl critical habitat (FWS 2016, pp. 626-703). We are also excluding lands that were previously managed by the BLM under the RMPs but were subsequently transferred in trust to certain Indian Tribes pursuant to Federal legislation.
On December 4, 2012, we published in the
In 2013, the December 4, 2012, revised critical habitat designation was challenged in court in
On April 13, 2020, we entered into a stipulated settlement agreement resolving the litigation. The settlement agreement was approved and ordered by the court on April 26, 2020, and the case dismissed. Under the terms of the settlement agreement, the Service agreed to submit a proposed revised critical habitat rule to the
The initial effective date of the January Exclusions Rule was March 16, 2021. On March 1, 2021, we extended the effective date of the January Exclusions Rule to April 30, 2021 (86 FR 11892). At that time, we also opened a 30-day comment period, inviting comments on the impact of the delay of the effective date of the January Exclusions Rule, as well as comments on issues of fact, law, and policy raised by that final rule. After considering comments received in response to our March 1, 2021, final rule delaying the effective date, on April 30, 2021, we again extended the effective date of the January Exclusions Rule to December 15, 2021 (86 FR 22876).
On July 20, 2021, we published in the
For the convenience of the reader, the list below provides some
Habitat loss was the primary factor leading to the listing of the northern spotted owl as a threatened subspecies in 1990 (55 FR 16114, June 26, 1990), and it continues to be a stressor on the subspecies due to the lag effects of past habitat loss, continued timber harvest, wildfire, and a minor amount from insect and forest disease outbreaks. The most recent rangewide northern spotted owl demographic study (Franklin
On non-Federal lands, State regulatory mechanisms have not prevented the continued decline of nesting, roosting and foraging habitat of the northern spotted owl; the amount of northern spotted owl habitat on these lands has decreased considerably over the past two decades, including in geographic areas where Federal lands are lacking. On Federal lands, the Northwest Forest Plan has reduced habitat loss and allowed for the regrowth of northern spotted owl habitat; however, the combined effects of climate change, high-severity wildfire, and past management practices are changing forest ecosystem processes and dynamics.
In our July 20, 2021, proposed rule (86 FR 38246), we requested that all interested parties submit written comments by September 20, 2021. We also contacted appropriate Federal, State, and local agencies, and other interested parties and invited them to comment on the proposed rule. A newspaper notice inviting general public comment was published in The Oregonian on July 25, 2021, in the Eureka Times-Standard on July 30, 2021, and in The Olympian on August 6, 2021. We did not receive any requests for a public hearing. We noted in the proposed rule that comments previously submitted in response to our August 11, 2020, proposed revision to critical habitat for the northern spotted owl (85 FR 48487) did not need to be resubmitted, as we would consider them in producing this final rule. We also noted that parties who wanted comments they submitted in response to our March 1, 2021, rule extending the effective date of the January Exclusions Rule considered in this final rule should resubmit their comments.
During the comment period, we received 48 new public comment submissions addressing the proposed withdrawal of the January Exclusions Rule and revised critical habitat designation, in addition to the 572 public comments submitted in response to our original August 11, 2020 proposal to exclude approximately 204,653 acres (82,820 hectares). In addition, one commenter resubmitted their comments in response to our March 1, 2021, rule. Among the submissions on the July 20, 2021, proposed rule were letters from organizations signed by thousands of individuals expressing general support for our proposed rule. Many comments were nonsubstantive in nature, expressing either general support for or opposition to our proposal to withdraw the January Exclusions Rule and exclude 204,797 acres (82,879 hectares), with no supporting information or analysis, or expressing opinions regarding topics not covered within the proposed revised critical habitat rule. We also received many detailed substantive comments with specific rationale for support of or opposition to specific portions of the proposed revised rule.
Below, we summarize and respond to: The substantive comments on the July 20, 2021, proposed rule that were received by the September 20, 2021, deadline; substantive comments we received in response to the August 11, 2020, proposed rule; and resubmitted comments in response to our March 1, 2021, rule. Additionally, we provide explanations when our responses to comments received on our August 11, 2020, proposed rule differ substantially from responses we provided to those same comments in the January Exclusions Rule. Comments received were grouped into general categories and are addressed in the following summary.
In order to facilitate the ability to cross-reference our previous responses to comments in the January Exclusions Rule, new and resubmitted comments received by September 21, 2021, on the proposed withdrawal of the January Exclusions Rule and the March 1, 2021, rule delaying the effective date of the January Exclusions Rule until April 30, 2021, are identified alphabetically; comments received on the proposed exclusions and other issues received in
Jackson County (Oregon) submitted a comment letter expressing their support and concurrence with the comment letter submitted by the Association of O&C Counties (AOCC); see
Douglas County (Oregon) submitted a comment letter incorporating the American Forest Resource Council (AFRC)'s September 20, 2021, comment letter by reference and provided additional comments urging the Service not to rescind the January Exclusions Rule. Issues raised by Douglas County are incorporated and grouped with similar comments within this rule.
Harney County (Oregon) submitted a comment letter urging the Service not to rescind the January Exclusions Rule. Issues raised by Harney County are incorporated and grouped with similar comments within this rule.
Lewis and Skamania Counties (Washington) submitted a comment letter incorporating the September 20, 2021, comment letter of the AFRC by reference and provided other comments that are incorporated and grouped with similar comments within this rule.
Klickitat County (Washington) submitted a comment letter incorporating Lewis and Skamania Counties' comment letter by reference and provided other comments that are incorporated and grouped with similar comments within this rule.
The Service expressly considered the role of the O&C lands when revising critical habitat in 2012, but did not consider excluding them at that time because we concluded they were essential to the conservation of the subspecies (77 FR 71876, December 4, 2012; p. 72007).
We expressly consider in this rule excluding the O&C lands (outside of the BLM's Harvest Land Base lands) from the designation based on requests from the commenter and others, but for the reasons discussed in our weighing analysis, have determined not to do so (see Consideration of Impacts Under Section 4(b)(2) of the Act).
We note, however, that the BLM and USFS have proposed harvests from O&C lands within designated critical habitat, consulting with the Service on those actions. To date, we have reviewed such proposals on thousands of acres and have not found that the proposals result in the destruction or adverse modification of that habitat under the Act.
The critical habitat designation benefits the northern spotted owl as a landscape-scale conservation strategy that identifies areas on the landscape that may require special management considerations or protection. In addition, the designation informs management practices that contribute to the recovery needs of the subspecies. In both the critical habitat designation, and in site-specific consultations, the Service has supported active forest management, where appropriate, to provide for some timber harvest while also conserving habitat for the northern spotted owl and reducing the risk of wildfire.
While our request indicated that we might consider additional exclusions, the scale of the final exclusions was much larger and broader than what the public could reasonably anticipate. In our proposed rule, we identified 204,653 acres (82,675 hectares) across 15 counties and 26 critical habitat subunits in Oregon for potential exclusion; the January Exclusions Rule increased the acres excluded by nearly 17-fold. The final rule included extensive areas that were not mentioned in the proposed rule, and for which no
In response to our March 1, 2021, rule delaying the effective date of the January Exclusions Rule, we received many comments that the January Exclusions Rule was not a logical outgrowth of the August 11, 2020, proposed rule, including comments from natural resource agencies in Washington and California opposing the exclusions and expressing that they were not aware that exclusions were being considered in their respective States. Additionally, the Washington Department of Fish and Wildlife comments expressed surprise at the 765,175 acres (309,655 hectares) excluded in their State under the January Exclusions Rule. Further, the California Department of Fish and Wildlife commented in response to the March 1, 2021, rule that the January Exclusions Rule did not identify lands excluded in their State with enough specificity to provide a meaningful analysis and comment. Conservation groups and other members of the public commented in response to the March 1, 2021, rule that they were not given the opportunity to present arguments and facts contrary to the vast increase in exclusions as presented in the January Exclusions Rule.
Additionally, the January Exclusions Rule also included new rationales for the exclusions that were not identified in the August 11, 2020, proposed revised critical habitat rule (85 FR 48487). These included generalized assumptions about the economic impact of both the listing of the northern spotted owl and the subsequent designation of areas as critical habitat; the stability of local economies and protection of the local custom and culture of counties; the presumption that exclusions would increase timber harvest and result in longer cycles between harvest; that timber harvest designs resulting from the exclusions would benefit the northern spotted owl, and that the increased harvest would reduce the risk of wildfire; and that northern spotted owls may use areas that have been harvested if some forest structure was retained. The public did not have an opportunity to review or comment on these new rationales.
Further, the January Exclusions Rule failed to reconcile a change in our prior findings regarding areas managed under the O&C Act. In our 2012 rule revising the critical habitat designation for the owl, we found that areas managed under the O&C Act were essential to the conservation of the subspecies and that not including some of these lands in the critical habitat network resulted in a significant increase in the risk of extinction. Commenters stated that the exclusion of these lands in the January Exclusions Rule also conflicted with our December 15, 2020, finding that the northern spotted owl warrants reclassification to endangered status given the exacerbation of the threats it faces. We maintain that the public should have had an opportunity to comment on the expanded critical habitat exclusions made in January in light of the information included in the December 15, 2020, finding and supporting species report (85 FR 81144, FWS 2020, p. 83), which were published just 3 weeks before the January Exclusions Rule.
In summary, it is clear from the public comment record that not being afforded an opportunity to review and provide comment on the much larger and broader areas excluded and the rationale for those exclusions, particularly in light of the December 15, 2020, finding that the northern spotted owl warranted reclassification to endangered status, was considered by the public a lack of transparency and inability to participate in the public process as required under the Administrative Procedure Act. While our proposed August 11, 2020, rule and exclusions did signal the potential that the final rule could be different, on reconsideration we find that it is more prudent and transparent to conclude that an updated proposed rule and an additional opportunity to comment would be warranted were we to seek to put the January Exclusions Rule into effect.
Accordingly, we found that a critical habitat designation of these reserved areas in the range of the spotted owl would provide no additional regulatory benefits beyond what is already on these lands due to their permanent status as protected lands and, importantly, the fact that commercial timber harvest is generally not permitted on these lands under Federal and State law and policy. Further, we found that the designation of these reserve areas would confer little additional educational benefits associated with the conservation of the spotted owl, as these educational messages are already being communicated in many of these areas under existing programs. In sum, although national parks and designated wilderness were excluded under section 4(b)(2) of the Act from the 2012 critical habitat designation, the conservation value of these lands was considered in our analysis and modeling of which lands were essential to the conservation of the northern spotted owl and in the design of a critical habitat network.
Regarding the size and distribution of national parks and designated wilderness, we initially identified and proposed to include approximately 2.6 million acres (1 million hectares) of these lands in the 2012 proposed critical habitat revision because they contained northern spotted owl habitat and were found to be essential to the conservation of the subspecies. These 2.6 million acres (1 million hectares), which we identified as habitat essential to the conservation of the northern spotted
In response to projects being altered due to the 2012 critical habitat designation, the examples that AFRC provided were for projects that were consulted on prior to the critical habitat designation but had not yet been implemented when the designation was finalized. Project modifications and additional time to address the effects to the physical and biological features of critical habitat and to consider the special management recommendations and protections discussed in the recently published critical habitat designation is a reasonable expectation for such projects. In response to projects being avoided or deferred within critical habitat, contrary to AFRC's assertion, projects to reduce the risk of wildfire continue to be consulted on with positive outcomes for the subspecies and the ecosystem while allowing for timber harvest that meets Federal agency timber production purposes; see our response to
In response to the comment that litigation associated with critical habitat designations demonstrates that the designation conflicts with forest
The Assessment expresses an urgent need to update their land management plans to modify desired conditions associated with dry forest ecosystems and to allow for active management in fire-prone areas to restore ecological integrity and habitat (USFS 2020, pp. 63, 71, 76); active management to address these needs aligns with both the Recovery Plan for the Northern Spotted Owl and the 2012 critical habitat designation. Finally, the Assessment recognizes that “social values related to land management have begun to shift toward recognition of the broad benefits associated with our natural resources and the importance of balancing resource protection with timber production” (USFS 2020, p. 62).
We acknowledge that the designation of critical habitat on USFS matrix lands can inform where timber harvest is emphasized as the USFS considers the special management considerations and protections discussed in the 2012 critical habitat designation. Education and providing information are important functions of critical habitat designations, especially when designing and implementing forest management projects on public lands. However, the Service continues to advocate for active management of forests to reduce wildfire risks as described in our 2012 critical habitat rule and the Recovery Plan. We designated USFS matrix lands as critical habitat where they contain habitat that is essential to the subspecies' conservation (77 FR 71876, December 4, 2012; p. 71895).
See our response to
The court simply affirmed this rational approach; the court's decision does not stand for the proposition that designated critical habitat cannot include the characteristics of connectivity. To the contrary, the court recognized the well-established scientific principles of connectivity (“[c]onnectivity is the “degree to which population growth and vital rates are affected by dispersal” and “the flow of genetic material between two populations.”). Connectivity promotes stability in a species by “providing an immigrant subsidy that compensates for low survival or birth rates of residents” and “increasing colonization of unoccupied” habitat,”
For the northern spotted owl, a project that proposes significant impacts to designated critical dispersal habitat that impedes connectivity between large blocks of designated critical habitat used for nesting, roosting, or foraging could result in a conclusion that the action would destroy or adversely modify critical habitat. Although habitat that allows for dispersal may currently be marginal with insufficient characteristics to support nesting, roosting, or foraging, it provides an important linkage function among blocks of higher-quality habitat both locally and over the northern spotted owl's range that is essential to its conservation. Juvenile dispersal is a highly vulnerable life stage for northern spotted owls and enhancing the survivorship of juveniles during this period could play an important role in maintaining stable populations of northern spotted owls.
Dispersal habitat is habitat that both juvenile and adult northern spotted owls use when looking to establish a new territory. Both dispersing subadults and nonterritorial birds (often referred to as “floaters”) are present on the landscape and require suitable habitat to support dispersal and survival until they recruit into the breeding population; this habitat requirement is in addition to that already used by resident territorial owls. Successful dispersal of northern spotted owls is essential to maintaining genetic and demographic connections among populations across the range of the subspecies and population growth can occur only if there is adequate habitat in an appropriate configuration to allow for the dispersal of owls across the landscape; therefore, the Service included dispersal habitat as part of the critical habitat designated for the northern spotted owl.
In addition, the Service considered the potential impacts of wildfire in our 2012 critical habitat designation (77 FR 71876, December 4, 2012). The 2012 critical habitat rule represented an increase in the total land area identified
In response to these and similar comments from others asserting that excluding areas from critical habitat would lead to a reduction in wildfire risks, the January Exclusions Rule acknowledged that Federal land managers could conduct active management in areas of designated critical habitat without violating the adverse modification prohibition of section 7 of the Act. The January Exclusions Rule went further, however, and inferred that the exclusion of areas from designated critical habitat would increase the potential for Federal land managers to include more lands in the Harvest Land Base, and allow longer cycles between timber harvests to provide many environmental benefits, including reductions in wildfire risk. It is certainly true that longer cycles between timber harvests,
In response to the USFS comments concerning spotted owl habitat connectivity, providing connectivity while also supporting other uses of forest lands is consistent with the critical habitat designation. For example, we found in our 2016 Biological Opinion on the revised BLM RMPs that the spatial configuration of “reserve” land use allocations identified in the RMPs provide for northern spotted owl connectivity across the landscape. Reserve land-use allocations are areas in which BLM prioritizes management for resources other than commercial timber production, although active management such as harvest may occur in some reserves in order to achieve management objectives. The Harvest Land Base land-use allocation describes areas where BLM prioritizes commercial timber production. The BLM's management of the Late-Successional Reserve for northern spotted owl habitat and other reserves for non-timber objectives, along with the management and scheduling of timber sales within the Harvest Land Base, are expected to provide for northern spotted owl dispersal between physiographic provinces and between and among large blocks of habitat designed to support clusters of reproducing northern spotted owls (FWS 2016, p. 698), while also allowing BLM to meet its timber harvest goals.
Section 4(b)(5)(A)(ii) of the Act requires the Service to give actual notice of any designation of lands that are considered to be critical habitat to the appropriate agency of each State in which the species is believed to occur, and invite each such agency to comment on the proposed regulation. Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” We notified the States of Washington, Oregon, and California of the proposed additional exclusions in Oregon. We did not receive comments from any State or State agency on the August 11, 2020, or July 20, 2021, proposed rules, only comments regarding the January Exclusions Rule; see our response to
We received comments from Klickitat, Lewis, and Skamania Counties in Washington; from Douglas, Jackson, and Harney Counties in Oregon; and from Siskiyou County in California. Most comments from counties pertained to either economic analysis or exclusions; see Economic Analysis Comments and Exclusions Comments below for County comments and our responses. Other comments from the counties are addressed in the section above titled Comments on the Withdrawal of the January Exclusions Rule and the section below titled Comments on July 20, 2021, Proposed Rule.
We received comments from the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians; the Cow Creek Band of Umpqua Tribe of Indians; and the Coquille Indian Tribe.
We have not designated critical habitat within the Coquille Forest. Should we consider revisions to the critical habitat designation in the future, the Service will coordinate with the Coquille Tribe to address effects to the Forest and its dominant use as managed by the Tribe.
In response to this comment, the January Exclusions Rule concluded that connectivity would remain protected without the critical habitat designation because Federal actions that “may affect” northern spotted owls would still require consultation under section 7 of the Act to evaluate whether the action jeopardizes the continued existence of the subspecies. On further review, we conclude that assumption was overstated as a basis to exclude these lands. It is true that Federal actions that “may affect” northern spotted owls, including actions that impact northern spotted owl habitat even if not designated as “critical,” would still undergo section 7 consultation (whether informal or formal, depending on the effects, see our response to
The section 7 consultation on effects to critical habitat ensures these considerations occur and evaluates the post-project functionality of the network to provide for connectivity at the subunit, unit, and designation scales. Evaluating habitat at multiple scales in a consultation on critical habitat ensures the landscape continues to support the habitat network locally, regionally, and across the designation.
These considerations are not necessarily involved to the same degree when considering the effects to northern spotted owl habitat that is not designated as critical as part of the jeopardy analysis in a section 7 consultation. A consultation on effects to the species (including effects resulting from changes to the non-designated habitat of the species) as part of the “jeopardy” prong looks primarily at how the project affects individuals, populations, and the species rangewide. Consultation on the effects to the designated critical habitat (the “critical habitat” prong of the consultation) focuses on that habitat network. This reflects Congress's clear articulation of two limits on Federal actions in section 7: A prohibition against jeopardizing the species, and a prohibition against destroying or adversely modifying its designated critical habitat. While we do evaluate the effects of landscape level impacts to habitat as part of the jeopardy analysis, this does not mean that the analysis of impacts to critical habitat are no longer necessary; the two analyses are not necessarily interchangeable.
Additionally, many of the lands that were excluded in the January Exclusions Rule are reserves or matrix lands that provide habitat that we found in our 2012 critical habitat rule were essential to the conservation of the northern spotted owl (77 FR 71876; p. 71895). See our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. The Harvest Land Base lands that we exclude here in this final rule represent only a small portion (less than 2 percent) of the critical habitat designation and represent only 7 percent of the land base managed by the BLM under the 2016 RMPs, with the remaining lands largely managed as reserves. We evaluated the effects of future harvest on the Harvest Land Base lands in our 2016 biological opinion on the BLM's revised RMPs (BLM 2016a, b) and found that recovery of the northern spotted owl would not be impeded and that the critical habitat units would continue to provide connectivity and sufficient habitat across the landscape (FWS 2016). Therefore, additional section 7 consultation on critical habitat within the Harvest Land Base as currently described in the 2016 RMPs would provide no incremental conservation benefit as the management direction under the RMPs already provides a conservation strategy consistent with recovery of the northern spotted owl and will not appreciably diminish the conservation value of the critical habitat designation.
The January Exclusions Rule, in response to this comment, also stated that “some of the areas used by the northern spotted owl for migration are secondary growth forests” and that “excluding such areas from critical habitat will not change their characteristics as secondary growth forests” and they will continue to be used for “migratory purposes.” On further review we find it is accurate that northern spotted owls may use areas of secondary growth forest; however, their use of these areas is dependent on the age, diversity, and condition of those forests. See also our response to
Additionally, the January Exclusions Rule assumed that the reduced regulatory burden in the process of Federal planning and implementation of timber management would result in increased harvest. Increased harvest at the scale of exclusions in the January Exclusions Rule would reduce the overall connectivity and suitability of the critical habitat network. That reduction in connectivity under the January Exclusions Rule was, in hindsight, quite significant because of the expansive elimination of critical habitat designated in areas of the northern spotted owl range, with some critical habitat subunits being reduced by up to 90 percent. The much smaller exclusions we finalize here eliminate only portions of critical habitat units that overlap with the Harvest Land Base allocation, which, as we already determined in our 2016 biological opinion, could be harvested without affecting the conservation value, including connectivity, of that designated critical habitat. See also our response to
We found the areas we designated in 2012 to be essential to the conservation of the northern spotted owl. However, the BLM revised their RMPs in 2016, amending their conservation strategy for the northern spotted owl and related land use allocations (BLM 2016a, 2016b). We found in our 2016 Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in the Harvest Land Base land use allocation, the management direction implemented under the RMPs is consistent with the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and would not appreciably diminish the conservation value of, or adversely modify, critical habitat (FWS 2016, p. 702). Because we had this updated information and analysis, we reconsidered whether exclusion of these areas was appropriate. We have determined that the benefits of exclusion of the Harvest Land Base land outweigh the benefits of including these areas, and that exclusion of these lands will not result in the extinction of the northern spotted owl. See our exclusion and extinction analyses for Harvest Land Base lands under Consideration of Impacts Under Section 4(b)(2) of the Act.
The January Exclusions Rule, which excluded all areas managed by the BLM under the O&C Act, including reserves as well as the Harvest Land Base, states that excluding the 3.4 million acres (1.4 million hectares) identified in that rule will not cause the extinction of the northern spotted owl. As discussed in our proposed rule, on reconsideration we find that conclusion is not supported by the science of conservation biology, the current population trend of the northern spotted owl, nor the purpose of the Act. See our analysis in the Withdrawal of the January Exclusions Rule section of this rule for a more detailed discussion.
The January Exclusions Rule, because it excluded all O&C lands, provided a different response to this comment: “The O&C Act provides, and the courts have confirmed, that the primary use of these revested timberlands is for permanent forest production on a sustained yield basis. The Supreme Court has additionally determined that the ESA does not take precedence over an agency's mandatory (non-discretionary) statutory mission. Based on these court rulings, we have determined that exclusion of the O&C
Though not stated explicitly, this response implied (and has been interpreted by some commenters to mean) that the O&C Act removes any discretion the BLM may have in how to manage the O&C lands on a sustained-yield basis such that the Endangered Species Act does not apply to the BLM's management of those lands at all. We take this opportunity to correct that implication. Courts reviewing the BLM's management of O&C lands have found that the BLM retains discretion as to how to achieve sustained yield timber production.
None of these courts—including
In any case, as we discuss further in Consideration of Impacts Under Section 4(b)(2) of the Act, we conclude that the exclusion of some O&C lands from the designation as critical habitat is appropriate, but the exclusion of all O&C lands is not.
In our July 20, 2021, proposed revision to the critical habitat designation, we explained that Federal actions in the Harvest Land Base that may affect designated critical habitat require section 7 consultation at the project-level scale. As discussed further below in Consideration of Impacts Under Section 4(b)(2) of the Act, based on our experience in project consultations since the BLM 2016 RMPs were implemented, addressing effects to designated critical habitat in the Harvest Land Base provides no incremental conservation benefit over the conservation already provided for in the BLM RMPs (2016a, 2016b) and project-level consultations that still occur regardless of the presence of critical habitat. Thus, continuing to require BLM to include an analysis of effects to designated critical habitat in the Harvest Land Base within otherwise triggered, project-level consultations is not contributing to the conservation and recovery of the subspecies, nor is it an efficient use of limited consultation and administrative resources.
With the exclusions finalized here, actions within the Harvest Land Base that affect northern spotted owl habitat (even if that habitat is no longer designated as critical) will still be subject to section 7 consultation to ensure that actions are not likely to jeopardize the continued existence of the subspecies, but we are removing the regulatory burden to consult under section 7 to address designated critical habitat by excluding the Harvest Land Base. We have consulted on the program of timber harvest planned under the RMPs, which will occur primarily in the Harvest Land Base. We already determined in that consultation (FWS 2016) that harvest in the Harvest Land Base will not appreciably diminish the value of the critical habitat for the conservation of the northern spotted owl and that BLM's management approach provided under the RMPs will sustain critical habitat over time. Northern spotted owls are expected to continue to be able to disperse across the landscape due to the habitat conditions and protections in the Late-Successional Reserves and Riparian Reserves, the stand retention incorporated into the management direction for timber harvest in the Harvest Land Base, and because any detrimental effects to northern spotted owl dispersal capability will be spread over 50 years during which time ingrowth in the reserves will also be occurring. The BLM's revised 2016 RMPs included approximately 177,000 additional acres (71, 630 hectares) of reserved lands compared to lands originally reserved under the NWFP in 1994; these acres contribute additional dispersal capability across the management area. These factors represent a significant improvement in the capability of the landscape to provide for spotted owl movement and dispersal. Given these provisions and assurances, in conjunction with all of the other considerations discussed in Consideration of Impacts Under Section 4(b)(2) of the Act, we conclude that the benefits of including these Harvest Land Base areas as designated critical habitat are relatively minor when compared to the benefits of excluding them.
The commenter is incorrect in stating that we do not consider habitat fitness in our evaluations of effects in section 7 consultations for the subspecies in the absence of affected designated critical habitat. We consult on Federal actions that have effects to northern spotted owl habitat even if it is not designated as critical habitat, regardless of whether the subspecies currently occupies that habitat, and consider this information in our analysis of whether the action is likely to jeopardize the continued existence of the subspecies. The commenter may be confusing the question of “occupancy” for consideration of whether “incidental take” of the species will occur. Even if we conclude that a Federal action that
The commenter is correct that detectability of northern spotted owls is reduced when barred owls are present, which led us to endorse an updated protocol for surveying for northern spotted owls to take this into account (FWS 2012), a protocol that has been upheld on review by the courts (
The 2012 critical habitat rule was an increase in designated area compared to previous designations, in part to provide for biological redundancy in northern spotted owl populations and habitat by maintaining sufficient habitat on a landscape level in areas prone to frequent natural disturbances, such as the drier, fire-prone regions of its range (Noss
The 2012 designation is based upon almost three decades of scientific research on the spotted owl. Estimating actual historical forested habitat within this range is difficult, but during our evaluation of whether to list the northern spotted owl, we concluded the best available information was that some 17.5 million acres (7 million hectares) of “suitable” habitat were available to the owl historically, before the advent of significant timber harvesting of old growth forests (55 FR 26114, June 26, 1990; p. 26151). When we initially designated critical habitat for the owl in 1992, we estimated that only 7.2 million acres (2.9 million hectares) of this “suitable” habitat (in this context meaning the types of older, more mature stands preferred by the northern spotted owl for nesting, roosting, and foraging when available in an area) remained on Federal lands, and most of it (60 percent) was in land allocations available for harvest (57 FR 1796, January 15, 1992; p. 1799). We found in the 1992 critical habitat designation that the best available information was that it could all be removed within 25-30 years (57 FR 1796, January 15, 1992; p. 1800). The critical habitat revision in 2012 was built upon this scientific work, while also incorporating the best available updated scientific information and taking into account more recent concerns such as the barred owl invasion, climate change, and the
In the development of habitat conservation networks generally, the intent of spatial redundancy is to increase the likelihood that the network and populations can sustain habitat losses by inclusion of multiple populations unlikely to be affected by a single disturbance event. This redundancy is essential to the conservation of the northern spotted owl because disturbance events such as fire can potentially remove large areas of habitat with negative consequences for northern spotted owls. The evaluation process used by the Service incorporates the recommendations of the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) by addressing spatial redundancy at two scales: By (1) making critical habitat subunits large enough to support multiple groups of owl sites, and (2) distributing multiple critical habitat subunits within a single geographic region. This was particularly the case in the fire-prone Klamath and Eastern Cascades portions of the range.
In summary, we acknowledge that the recent wildfires had negative impacts on some local northern spotted owl populations and critical habitat subunits and that future fires are likely to have additional negative impacts. However, the additional exclusions we make here represent a relatively small area compared with the designated areas that remain, and they do not appreciably diminish the conservation value of the designation to the northern spotted owl. These areas that remain in the designation will be managed in the long term for northern spotted owl conservation under the Northwest Forest Plan (NWFP) (USFS and BLM 1994a, USFS and BLM 1994b) and BLM RMPs (BLM 2016a, BLM 2016b) and are expected to provide an adequate amount of habitat at the listed-entity scale to withstand periodic natural disturbances such as wildfire.
Regarding the comment that exclusions will lead to regeneration harvest and subsequent increased fuel load and uncharacteristic wildfire, we assume the Harvest Land Base will continue to be managed consistent with the management direction defined in the 2016 RMPs. As previously stated, we found in our 2016 Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in the Harvest Land Base land use allocation, the management direction implemented under the RMPs is consistent with the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and would not appreciably diminish the conservation value of, nor adversely modify, critical habitat (FWS 2016, p. 702).
The January Exclusions Rule considered that one benefit of exclusion could be a lessening of the regulatory burdens for discretionary Federal decisions when considering management practices to protect forested lands from catastrophic wildfire. See our responses to
The BLM RMPs state that if the need for adaptive management to address changes in the climate would so alter the implementation of actions consistent with the RMPs that the environmental consequences would be substantially different than those anticipated in the Proposed RMP/Final Environmental Impact Statement, then the BLM would engage in additional planning steps and procedures under the National Environmental Policy Act (NEPA) (BLM 2016a, p. 111). Additionally, the effects of climate change will be considered in the development of forest management actions and analyzed in future NEPA analyses and section 7 consultations at the project level.
The BLM may also apply adaptive management by taking additional planning steps and NEPA procedures based on information found through the monitoring questions (Appendix B) (BLM 2016a, p. 111; BLM 2016b, p. 133). The late-successional and old-growth ecosystems effectiveness monitoring program characterizes the status and trend of older forests to answer the basic question: Is implementation of the BLM RMPs maintaining and restoring late-successional and old-growth forest ecosystems to desired conditions on Federal lands in the planning area? (BLM 2016a, p. 116; BLM 2016, p. 138). Effectiveness monitoring reports will also include analysis of whether the BLM is achieving desired conditions based on effectiveness monitoring questions and, where possible, inform adaptive management (BLM 2016a, p. 111; BLM 2016b, p. 139). As discussed further in our response to
In sum, BLM's RMPs are consistent with the Recovery Plan recommendations for addressing uncertainty, and provide the tools for adaptive management if needed to address effects from climate change. The Harvest Land Base exclusions finalized here will not impair that adaptability.
We are excluding the portion of O&C lands (approximately 172,712 acres (69,894 hectares)) allocated by the BLM to the Harvest Land Base. The remaining O&C lands under USFS and BLM management (1,209,229 acres (489,357 hectares)) are retained within the critical habitat designation in this final rule. We have determined that the benefits of exclusion of the Harvest Land Base land outweigh the benefits of including these areas, and that exclusion of these lands will not result in the extinction of the northern spotted owl. See our discussion of the benefits of exclusion versus inclusion of Harvest Land Base lands in Consideration of Impacts Under Section 4(b)(2) of the Act.
An analysis of occupancy based on northern spotted owl and barred owl detections supported the conclusion that barred owl presence has a negative effect on northern spotted owls, increasing territorial extinction and decreasing territorial colonization of spotted owls. While barred owl occupancy was the dominant negative effect on spotted owl territory occupancy and population trend, other factors such as habitat condition had a weaker, but positive, effect on occupancy and trend. These other factors such as habitat were insufficient to reverse the negative trend, but suggest the importance of maintaining spotted owl habitat on the landscape, even if it is unoccupied, in the face of competitive exclusion by barred owls, as noted by Dugger
The Service conducted experimental removal of barred owls to test its efficacy in improving spotted owl demographic performance on four study areas spread across the northern spotted owl range in Washington, Oregon, and northern California. Peer-reviewed analysis of the experiment (Wiens
These two analyses (Wiens
Similar to our response above to the comment suggesting the need for increased habitat redundancy in the face of catastrophic wildfire, we find that the critical habitat designation, which includes more area than what was previously designated in 1992 and 2008, is consistent with the Revised Recovery Plan for the Northern Spotted Owl (2011) and provides for the conservation of northern spotted owls as they face growing competition from barred owls. The exclusions we finalize here are not of a scale to appreciably affect that approach. See also our discussion of our analysis in the biological opinion on BLMs RMPs and their approach to barred owl management in our responses to
The January Exclusions Rule, in justifying the exclusion of 3.4 million acres (1.4 million hectares), stated that even on excluded lands, all discretionary Federal actions and decisions on areas that are occupied by the subspecies will be required to undergo section 7 consultation if such action or decision “may affect” the northern spotted owl and that such consultation will ensure that the continued existence of the northern spotted owl is not jeopardized. See our further review of these statements in our response to
The Revised Recovery Plan for the Northern Spotted Owl relies on the NWFP's Late-Successional Reserve network as the foundation for northern spotted owl recovery on Federal lands (FWS 2011, p. III-41). The revised plan recommended “continued application of the reserve network of the NWFP until the 2008 designated spotted owl critical habitat is revised and/or the land management agencies amend their land management plans taking into account the guidance in this Revised Recovery Plan” (FWS 2011, p. II-3). BLM's 2016 revision of its RMPs fully considered the 2011 Recovery Plan recommendation.
The BLM RMPs provide protection to older, complex forests through the system of reserves. Reserve land use allocations (Late-Successional Reserve, Congressionally Reserved Lands and National Conservation Lands, District-Designated Reserves, Riparian Reserve) comprise 74.6 percent (1,847,830 acres (747,790 hectares)) of the acres of BLM land within land use allocations (FWS 2016, p. 9). These lands are managed for various purposes, including preserving wilderness areas, natural areas, and structurally complex forest; recreation management; maintaining facilities and infrastructure; some timber harvest and fuels management; and conserving lands
The January Exclusions Rule stated that “the correct analysis for purposes of section 4(b)(2) is whether the Secretary concludes that the specific exclusion of these areas of critical habitat will result in the extinction of the species.” We agree with this statement; however, see our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.
• The BLM RMPs will conform to the northern spotted owl Recovery Plan, including the location and function of large blocks of habitat for reproducing spotted owls and the ability of the landscape to support spotted owl movement between those blocks.
• The BLM RMPs will include approximately 177,000 more acres (71,629 hectares) of Late-Successional Reserve and Riparian Reserves than in the NWFP, which will be managed for the retention and development of large trees and complex forests across the RMP landscape.
• The BLM RMPs will improve the amount, quality, and distribution of nesting habitat on BLM lands over the first 50 years modeled under the RMPs through management of these increased reserves.
• The BLM RMPs will facilitate and improve northern spotted owl dispersal capability across the landscape through the management of the increased reserves.
Given the management, spatial configuration, and projected improvement of habitat in the reserves, we find that excluding the Harvest Land Base lands will not preclude recovery of the northern spotted owl if the 2016 RMPs are implemented as described. In addition, the Indian lands excluded herein represent only 0.21 percent of the overall designation; we have found that we can achieve the conservation of the northern spotted owl by limiting the designation to other lands.
The January Exclusions Rule determined that the exclusion of 3.4 million acres (1.4 million hectares) from the critical habitat designation outweighed the benefits of inclusion, and that, based upon the best scientific and commercial data available, it did not conclude that exclusion of those areas will result in extinction of the subspecies. See our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.
We find the BLM RMPs provide an approach that minimizes negative impacts to spotted owls and offsets these impacts with proactive positive actions providing for the long-term survival and recovery of the northern spotted owl. When considered in its entirety, implementation of the BLM RMPs will have both negative and positive effects on the northern spotted owl. Negative impacts will primarily be due to resource utilization such as timber harvest on less than one-quarter of the BLM land base, and other resource programs. Positive effects of the plan will accrue due to the following: An increase in the total area of protected forest reserves on BLM lands (approximately 80 percent of BLM ownership); BLM's management of forest habitat to increase the rate of development of late-successional conditions; and BLM's support for, and cooperation in, the barred owl removal experiment and a potential barred owl management program (see our response to
Over the 50-year life of the BLM RMPs (BLM 2016a, BLM 2016b), there will also be a significant net gain over current levels in spotted owl habitat largely within reserves that will be managed to maintain and produce high-quality spotted owl habitat of the kind preferred by owls for nesting, roosting, and foraging when available in an area. This increase will provide large blocks of habitat of Federal land capable of supporting more than 25 spotted owl pairs. Spotted owl dispersal through these areas also will continue to be facilitated and is expected to improve over time under BLM's management.
Although impacts to spotted owl habitat in the Harvest Land Base were anticipated, wherever possible those impacts will be spread out over time to minimize site abandonment as a barred owl management strategy is implemented. Given this, and the landscape of reserves providing for blocks of habitat and northern spotted owl movement consistent with the recovery needs of the spotted owl, we concluded the BLM RMPs will not appreciably diminish the ability of the BLM lands to provide for a well-distributed population of owls.
Because of the expected retention and improvement of northern spotted owl populations on BLM lands, the Service concluded that implementation of the BLM RMPs would not represent an appreciable reduction in the likelihood of survival and recovery of the northern spotted owl in the wild due to
The January Exclusions Rule stated because there will continue to be section 7 consultations for discretionary actions in areas where the spotted owl occurs, we have concluded that the additional regulatory requirement related to review for adverse modification is outweighed by other relevant factors. See our response to
The January Exclusions Rule stated that our FEA completed in 2012 (IEc 2012) in combination with a new report prepared by the Brattle Group (2020) (Brattle Report) continue to be the best scientific and commercial data available; we no longer find this to be the case as discussed in our response to
• The number of acres where incremental harvest impacts may occur is higher;
• The baseline annual harvest potential is higher;
• The potential reductions in harvest volumes due to the impact of critical habitat are larger; and
• The estimated stumpage values are lower.
As described by IEc in their review of this information (IEc 2020, 2021), the effect of these changes in inputs by the Brattle reports is a higher measure of the negative annualized timber harvest impacts across the affected acres,
First, the Brattle reports state that the higher number of acres where incremental impacts may occur is based upon a review of GIS files and other related information. Their estimated acreage of lands affected changed considerably between the Brattle Report and supplement. However, the supplement provides no clear basis for this increase. We asked IEc to review the Brattle reports, and they concluded that they could not replicate the result, but determined that the magnitude of differences in the acreages identified in the reports versus those identified in our FEA are unlikely to substantially alter the ranking of potential impacts by subunit. The Brattle reports provide retrospective impacts by subunit, but do not provide a composite ranking. In contrast, our FEA included an analysis of acreages by subunit where impacts may occur, scored these areas by the potential extent of impact, and then ranked each subunit according to a composite score against all other subunits (see Section 4.3 of IEc 2012).
Second, the Brattle reports assume a much higher baseline annual harvest potential on USFS and BLM lands (a more than five-fold increase) than the best available information indicates is likely. We understand that the reports relied on average yields from a short time period of harvest data (2018-2020) on lands managed by BLM for moist and dry forests and then translated these harvest levels into estimates of long-term annual yields across the acres where the reports assume incremental impacts may occur. Based on comments from AFRC, the reports also assume similar yields on BLM and USFS lands, a standard rotation age of 100 years where one percent of the land would be regeneration-harvested, and one percent would be thinned. The assumptions are at best hypothetical and not widely applicable. The BLM and USFS are unlikely to have similar yields generally for a variety of reasons, including that there is no standard of a 100-year rotation age or one percent regeneration harvest used by either agency for all of their managed lands. The USFS and BLM apply “uneven-aged” stand management, rather than “even-aged” stand rotations, on many of these areas to meet multiple use goals such as wildfire risk reduction, recreation, forest restoration, and biodiversity conservation, especially in drier portions of the range. In contrast, we based our yield rates on actual harvest data provided by the BLM and USFS over an extended period (IEc 2012). For lands managed by BLM, the FEA used data BLM provided on 30 years of planned timber harvest by land allocation type (reserve/matrix), forest conditions (nesting/roosting habitat, predominantly younger forests), and harvest type (thinning, regeneration) at the critical habitat subunit level. For lands managed by USFS, our FEA used projected yield rates provided by the USFS for each critical habitat unit.
Third, the Brattle reports assume an 80 percent reduction in harvest volumes due to the critical habitat designation versus the 20 percent used in the FEA high-impact scenario. The reports indicate that the assumption of an 80 percent reduction in harvest volumes is based on discussions with AFRC and unspecified comments provided by the USFS and BLM on the 2012 economic analysis. As a result, it is unclear on what basis the Brattle reports assume an 80 percent reduction in harvest volumes. The most likely cause is by improperly conflating the impact that the listing of the northern spotted owl in 1990 and other economic and logistical factors had on timber harvest with the incremental effect of the subsequent designation of critical habitat, particularly in areas that are currently unoccupied by the subspecies.
The Brattle Report also noted that it “cannot model the timber markets that influence the demand for timber in the Pacific Northwest” to test the reasonableness of its assumption concerning timber harvest effects (The Brattle Group 2020, p. 17). The potential incremental effect of critical habitat on harvest levels was a point of significant debate for the 2012 critical habitat designation (see section 4.4.2 of the FEA). As IEc notes in its assessment of the Brattle Report, “Various land managers, Service experts, and other commenters concluded that the direction and magnitude of effect due to critical habitat was uncertain, noting that harvest levels could be higher or lower depending on a variety of land management considerations and harvest factors. In addition, the implementation of timber harvest in critical habitat occurs within a complex set of factors, including volatility in global demand for wood products, general timber industry transformation, and existing regulatory and statutory requirements, among other factors.” The FEA used three separate scenarios, along with additional sensitivity analysis to capture this uncertainty and the concerns of multiple stakeholders, including BLM and USFS. “The Brattle report does not endeavor to model markets or other factors that influence the demand for timber in the Pacific Northwest” (IEc 2020). The Brattle Report did not include a sensitivity analysis to address the uncertainty of effects associated with critical habitat.
Fourth, concerning estimated stumpage values, as IEc noted in their review, our FEA “recognized that prices vary across forest, land manager, and year, and that future prices were uncertain. The analysis captured annual average prices from Federal timber sales on BLM and USFS managed lands between 2000 and 2011. The low-end price ($100 per thousand board feet (mbf)) was similar to more recent prices (as of 2012) from Federal timber sales, which had been below historical averages. The higher end was selected to purposely capture the highest price received since the year 2000. This high price, therefore, served as a conservative approach, meaning it would yield the highest negative impacts from any constraints on timber harvest volumes due to critical habitat designation. Beyond this range, the 2012 economic analysis conducted a further sensitivity analysis based upon a comment received from AFRC. In this scenario, an even higher price of $350 per mbf was analyzed for its effect and included in the economic analysis. Thus, the original range and further sensitivity analysis captured a reasonable upper and lower bound of the role of timber prices on potential impacts. In contrast, the Brattle report uses similar average stumpage prices from similar sources, but only from 2018 to 2020, a much shorter time frame. In addition, its price range of $83 to $191 per mbf is consistent with the price range used in the 2012 report, especially when considering the passage of eight years and the general market volatility of lumber prices.” (IEc 2020).
In sum, the Brattle reports and associated commenters concluded that the total effect of these alternative inputs is a higher measure of negative annualized timber harvest impacts across the total of potentially affected acres compared to what was estimated in the FEA (IEc 2012) ($66 to $77 million estimated in the Brattle Report, $66 to $85 million in the supplement, versus $6.5 million in the FEA). As noted above, the Brattle supplement added the distribution of its overall measure of impacts across the designation's subunits. Understanding
The January Exclusions Rule considered the negative economic impacts on rural communities of the critical habitat designation and the listing of the northern spotted owl in its weighing of the benefits of excluding 3.4 million acres against the benefits of inclusion and concluded that the benefits of exclusion outweighed the benefits of inclusion. We do not now find these conclusions to be appropriate; see our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts under Section 4(b)(2) of the Act.
First, 4 of the 18 counties cited in the analysis (Calaveras, Riverside, and Mono in California, and Morrow in Oregon) are located outside of the range of the northern spotted owl and do not contain designated northern spotted owl critical habitat, so the designation would not have impacted timber harvest in these counties. The Brattle supplement states that this information was provided for context, although it does not explain how referencing this context aids in assessment of impacts from the northern spotted owl. In fact, the data from these counties document that timber harvest and related economic patterns were concurrently volatile in rural counties outside the range of the spotted owl, suggesting larger market forces were impacting timber markets both within and outside the range of the owl.
Second, of the remaining 14 counties cited in the report that contain some spotted owl critical habitat, the Brattle reports describe timber harvest declines occurring in 7 counties somewhere around (
Third, the analysis provided charts of harvest decline in specific counties within the critical habitat designation. A rapid assessment of the same data source cited by the commenter, but evaluating a random number of additional counties in Oregon, Washington, and California in the range of the northern spotted owl, revealed no discernible pattern in timber harvest declines that could reasonably be attributed to the 2012 critical habitat designation. Some counties experienced general increases in timber harvest after 2012, some declined, and some were relatively flat when compared to long-term trends. A similar pattern of fluctuation exists for individual counties located outside of the range of the spotted owl but within Oregon, Washington, and California, as well as in other western States. Most of these counties showed wide fluctuations in timber harvested on Federal lands, both before and after 2012, again indicating the influence of factors other than the designation of critical habitat.
Using the same data source cited by this commenter (with 2019 data from BLM and USFS on timber volume offered for sale), we reviewed Federal land harvest data in Oregon counties that are within the northern spotted owl critical habitat designation. The annual average harvest from 2002 through 2012 on all BLM lands in the range of the spotted owl was approximately 159 million board feet per year prior to the 2012 critical habitat designation. The annual average harvest on BLM lands located in the range of the spotted owl from 2013 through 2019, after the 2012 critical rule was published, was 235 million board feet; the total in 2020 was 249 million board feet offered for sale (BLM 2021a). Thus, rather than suffering a decline, annual harvest appears to have increased substantially subsequent to the 2012 designation of critical habitat.
Likewise, the annual average harvest from 2002 through 2012 on USFS lands located within the range of the spotted owl was approximately 196 million board feet per year prior to the 2012 critical habitat designation. The annual average harvest on USFS land from 2013 through 2019, after the 2012 critical rule was published, was 288 million board feet. We also reviewed Federal harvest data in Oregon counties outside the range of the spotted owl (and therefore in counties with no spotted owl critical habitat or obligation for Federal agencies to consult under ESA section 7) and saw harvest volume fluctuations similar to those in counties located within critical habitat. Based on these data it does not appear that designation of critical habitat in 2012 had a significant incremental depressive effect on subsequent Federal timber harvest.
In addition, during this same time period, timber-related tax revenue flowing to Oregon counties has declined due to large reductions in State and local property and severance taxes on private timber lands. According to one in-depth analysis, half of Oregon's 18 western counties lost more revenue due to tax cuts on private lands than they did due to reductions in Federal timber harvest levels (Younes and Schick 2020). It is unclear if the Brattle analysis incorporated this data into its analysis of net declines in timber revenue to local economies.
Our FEA (IEc 2012) addressed the incremental effects of critical habitat within the area proposed for designation for the northern spotted owl. Consistent with our practice at the time (now codified in regulations) the FEA quantifies the economic impacts that may be directly attributable to the designation of critical habitat, comparing scenarios both “with critical habitat” and “without critical habitat.” Our incremental analysis did not consider the economic impact of changes other than from the proposed revised critical habitat designation, and did not evaluate the economic condition or status of the timber industry at large. Rather, it addressed the effects related to the impacts to Federal agencies and their activities, because Federal agencies are the only entities directly subject to the requirement to evaluate and consider effects of their actions on designated critical habitat.
Nonetheless, we acknowledged that, “[m]ultiple forces have contributed to the recent changes in the Pacific Northwest timber industry. In general, the timber industry is characterized as being highly competitive; there is a relatively low degree of concentration of production among the largest producers and there is essentially a single national price for commodity grades of lumber. In recent decades, competition has intensified with increased harvesting in the U.S. South and interior Canadian Provinces. New technologies and increased mechanization have led to mill closures; generally, less efficient mills located near Federal forests have been closed in favor of larger, more advanced facilities closer to major transportation corridors or private timberlands. In addition, other forces such as endangered species protections, fluctuations in domestic consumption, shifts in international trade, and changes in timberland ownership, have all contributed to changes in the Pacific Northwest timber industry” (IEc 2012, p. 3-17).
We acknowledge that Douglas County has experienced significant economic strain, but we conclude that the economic impacts analysis we conducted with the 2012 critical habitat designation remains an accurate assessment of the incremental economic effects of the designation of critical habitat, and does not provide a basis from which to exclude all of the areas of critical habitat currently designated in the county.
Regarding Douglas County's request that we exclude private, State, and county lands, there are no private lands designated as critical habitat for the northern spotted owl; we primarily relied on Federal lands, with a small amount of State and local government lands, to meet the conservation needs of the northern spotted owl. We did not designate any county lands in Oregon as critical habitat. We did designate areas on some State lands in Washington, Oregon, and California where Federal lands are not sufficient to meet the conservation needs of the northern spotted owl. In our final 2012 designation, we excluded State parks and natural areas and lands in Washington covered by a habitat conservation plan. See our
Other than a small amount of Indian lands (which were previously managed by the BLM), the Service is only excluding lands identified for timber harvest under the 2016 BLM RMPs. These RMPs underwent rigorous NEPA review, including public comment on the identification of the Harvest Land Base lands. The Service then completed a Biological Opinion on these RMPs, which included an analysis of the effects of proposed timber harvest in designated critical habitat, and concluded that timber harvest under the plan would not adversely modify the critical habitat. Therefore, consistent with the ruling in
The Secretary has discretion whether to conduct an exclusion analysis under section 4(b)(2) in accordance with our regulations at 50 CFR 17.90(c). The Secretary will conduct an exclusion analysis when the proponent of excluding a particular area (including but not limited to permittees, lessees or others with a permit, lease, or contract on federally managed lands) has presented credible information regarding the existence of a meaningful economic or other relevant impact
We respond separately to each reason provided for these suggested exclusion requests first (except for assertions of economic impacts, which are addressed above in response to
This final rule is based on the 2016 RMPs as they are, and not as they may be modified in the future. The ultimate litigation outcome challenging the BLM's management of O&C lands is not certain. We acknowledge the potential for future reductions in the BLM reserve land-use allocations and changes in the Harvest Land Base. We will continue to monitor the litigation and once it has concluded (including any land-use planning if undertaken) will assess whether revisions to this designation are appropriate to propose. See also our response to
In contrast, we have not conducted an updated programmatic review of USFS land management plans as was done with BLM plans in 2016. All USFS actions carried out under the NWFP since the 2012 designation of critical habitat that may affect that habitat have undergone section 7 consultation on a project-by-project basis and have been found to be consistent with the Endangered Species Act. Our January Exclusions Rule comment response stated that these consultations were sufficient to support exclusion of the USFS land areas because it supported the then-Secretary's determination that extinction would not result. However, without a programmatic-scale look at USFS land management plans we lack the updated broad-scale information and assessment of the effects of harvest within designated critical habitat that would be necessary to sustain additional exclusions of all USFS O&C lands, whether they are located in reserves or in areas targeted for timber harvest. See our response to
In 2016, the BLM revised their RMPs providing direction for the management of approximately 2.5 million acres (1 million hectares) of BLM-administered lands, which includes most of the O&C lands, for the purposes of producing a sustained yield of timber, contributing to the recovery of endangered and threatened species, providing clean water, restoring fire-adapted ecosystems, and providing for recreation opportunities (BLM 2016a, p. 20; BLM 2016b, p. 20). The BLM RMPs revised the land-use allocations of BLM-managed lands in western Oregon. We noted in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011, p. II-3) that the functionality of the critical habitat designation on BLM-managed lands and rangewide was anticipated to improve, in part as the land management agencies updated their land management plans to incorporate the Recovery Plan's recommendations.
The total Harvest Land Base land use allocation on BLM lands, a portion of which is critical habitat and is now being excluded from critical habitat, comprises 19 percent (469,215 acres (189,884 hectares)) of the overall land use allocations described in the RMPs and is where the majority of programmed timber harvest will occur (FWS 2016, p. 9; BLM 2016a, pp. 59-63). Approximately 172,712 acres (69,779 hectares) of the Harvest Land Base being excluded herein is O&C lands. Our analysis of the impacts to the habitat within the Harvest Land Base recognized that this land use allocation was not intended to be relied upon for demographic support of northern spotted owls (FWS 2016, p. 553). Thus, through our analysis conducted for the section 7 consultation for the 2016 RMPs, we have evaluated the role that these lands have in the recovery of the northern spotted owl. Based on that, we reconsidered the relative value of including them in a critical habitat designation.
The O&C lands that remain within the critical habitat designation with this final rule are composed primarily of Late-Successional Reserve on BLM and USFS lands, and some forest “matrix” lands in National Forests where timber harvest was programmed to occur under the 1994 NWFP. Our modeling results for the 2012 critical habitat designation indicated that the O&C lands make a significant contribution toward meeting the conservation objectives for the northern spotted owl. As described in the section, Changes From the Proposed Rule, in the December 4, 2012, critical habitat rule (77 FR 71876; p. 71888), we tested possible habitat networks without many of the BLM (now Harvest Land Base) and USFS matrix lands, which resulted in a significant increase in the risk of extinction for the northern spotted owl (Dunk
As to “occupied” versus “unoccupied” habitat, the commenter may be confusing the use of the term “occupied” as used when designating critical habitat, with the concepts of presence or absence of a species in section 7 consultations, which can also refer to the “occupancy” of the species at the time of the consultation. The two are not the same. The Service is required to designate critical habitat based on the occupied habitat “at the time of listing” which in the case of the northern spotted owl was 1990. After 1990, whether or not the species “occupies” that specific habitat does not dictate whether the area is critical habitat. Rather, in our evaluation in a section 7 consultation for effects of a Federal action on specific designated critical habitat, we evaluate the effects to the physical and biological features of critical habitat and the post-project functionality of the network to provide for connectivity at the subunit, unit, and designation scales to ensure the landscape continues to support the habitat network locally, regionally, and across the designation. This evaluation is not conditional on critical habitat being currently occupied. Rather, “occupancy” at the time of a specific action resulting in a section 7 consultation is generally most relevant for assessing whether the proposed Federal action will “jeopardize” the species, or incidentally “take” the species. See also our response to
As was explained in the 2012 critical habitat designation, although some areas of younger forests may not have been used as nesting habitat by northern spotted owls at the time of listing, younger forests are often used by owls for dispersal or foraging behavior, both of which are essential life functions, and thus are considered as “occupied” for the purposes of critical habitat designation. Including these areas within the designation is beneficial because they provide the physical and biological features that currently support owl life functions (
In response to “habitat capable” lands, see our response to
The risk of dispersing through a landscape of minimum or lower quality dispersal habitat is not well understood. Buchanan (2004, p. 1341) evaluated this risk, concluding that “strategies for management of spotted owl dispersal habitat may not produce conditions preferred by spotted owls and may result in dispersal-related mortality (due to starvation or predation) or other consequences that negatively influence juvenile recruitment.” The relative effect to spotted owls dispersing though a lower-quality stand and landscape is the issue that has not been “thoroughly evaluated or described” (FWS 2011, p. vi), as opposed to the value of dispersal habitat generally for northern spotted owls. Mortality rates of juvenile dispersal exceed 70 percent in some studies, with known or suspected causes of mortality during dispersal including starvation, predation, and accidents (FWS 2011, p. A-7).
In addition to assisting with dispersal in support of northern spotted owl life functions, young stands also assist in addressing the long-term viability and recovery of the owl. Habitat loss and degradation were identified as major threats to the northern spotted owl at the time of listing, and conservation and recovery of the subspecies are dependent in part on the development of currently low-quality habitat into high-quality habitat to allow for population growth and recovery (77 FR 71876; p. 71917). Younger forests that meet the dispersal characteristics described in the 2012 designation provide for this environment as the stands age and develop the complex structural components of that higher quality habitat. To summarize, there is a clear biological need for young forests to contribute to spotted owl recovery both as dispersal habitat and as future breeding habitat to support population growth and recovery. Ideally, dispersal habitat consists of a large percentage of older habitat on the landscape, but younger stands also support movement
On page 71908 of the December 4, 2012, critical habitat rule (77 FR 71876), we stated that, in drier, more fire-prone regions of the owl's range, habitat conditions will likely be more dynamic, and more active management may be required to reduce the risk to the essential physical or biological features from fire, insects, disease, and climate change, as well as to promote regeneration following disturbance.
The Service recognizes that land managers have a variety of forest management goals, including maintaining or improving ecological conditions where the intent is to provide long-term benefits to forest resiliency and restore natural forest dynamic processes (FWS 2011, III-45).
The Service has consulted under section 7 with Federal agencies on their fuels reduction, stand resiliency, and pine restoration projects in dry forest systems within the range of the northern spotted owl. For example, we have consulted with the BLM and the USFS on such actions in the Klamath Province of southern Oregon. The proposed actions may include treatment areas that reduce forest canopy to obtain desired silvicultural outcomes and meet the purpose and need of the project, including timber production. They can also promote ecological restoration and are expected to reduce future losses of spotted owl habitat and improve overall forest ecosystem resilience to climate change. We have to date concluded in these consultations that the actions do not adversely modify critical habitat. Thus, active management to reduce wildfire risk can and has been undertaken in designated critical habitat.
In the 2012 critical habitat rule, we repeatedly reference the need for and appropriateness of conducting forest health treatments in spotted owl habitat, including designated critical habitat. Likewise, the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) encourages application of active forest management within spotted owl habitat to address forest health, wildfire risk, and impacts of climate change. Lastly, the 2016 Biological Opinion on the BLM's 2016 RMPs generally supports this need as well.
In sum, there are almost always conflict and tradeoffs when conducting silvicultural projects that disturb existing forest stands. Spotted owl habitat conservation is just one of these tradeoffs; others include water quality, recreation, carbon sequestration, aesthetic values, economic opportunity, safety, and fire risk, to name a few. The 2012 critical habitat rule and other documents prepared by the Service both before and after 2012 provide support for evaluating these tradeoffs and, where appropriate, proceeding with fuels management projects within critical habitat (Henson
In addition, the critical habitat rule provides the flexibility to conduct fuel treatments and reforestation activities, whose contribution to northern spotted owls will be amplified when conducted consistent with Recovery Action 12 (FWS 2011, p. III-49): “In lands where management is focused on development of spotted owl habitat, post-fire silvicultural activities should concentrate on conserving and restoring habitat elements that take a long time to develop (
Additionally, natural disturbance processes, especially in drier regions, likely contribute to a pattern in which patches of habitat in various stages of suitability shift positions on the landscape through time. Sufficient area to provide for these habitat dynamics and to allow for the maintenance of adequate quantities of suitable habitat on the landscape at any one point in time is, therefore, essential to the conservation of the northern spotted owl. The recent loss of older habitat due to the 2020 and 2021 wildfires underscores the need for biological redundancy in the critical habitat designation to accommodate these habitat changes over time. We do not remove these areas from the designation when these changes occur, we anticipated this shift in suitability in the overall design of the critical habitat network.
Because northern spotted owls use burned areas, and because management
Recovery Action 10 in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) recommends prioritizing known and historical northern spotted owl sites for reproducing owls when the site condition includes greater than 40 percent high-quality nesting/roosting habitat in the provincial home range (
In sum, these areas provide a sufficient amount of habitat to support northern spotted owl home ranges, and dispersal. Because we find that areas of less than 3,000 contiguous acres and the smaller, fragmented areas designated are able to support northern spotted owls, we are not considering excluding these areas. See also Consideration of Impacts Under Section 4(b)(2) of the Act.
Additionally, as noted in the 2012 critical habitat rule (77 FR 71876; p. 72052), critical habitat does not include: (i) Humanmade structures (such as buildings, aqueducts, runways, roads, other paved areas, or surface mine sites) and the land on which they are located. We interpret this to mean that the developed portion of ski areas would fall within this exception.
The January Exclusions Rule found that the benefit of excluding the White Pass Ski Area due to economic impacts outweighed the benefit of inclusion. However, we noted in the FEA (IEc 2012, p. 1-7) completed for the 2012 critical habitat rule that ski area development actions generally tend not to conflict with spotted owl and critical habitat conservation needs, and thus, upon reconsideration, we do not anticipate any significant regulatory burden associated with the designation of these lands as critical habitat (IEc 2012). No information or evidence was presented by the commenters to indicate that the critical habitat designation does or will impair the ski area's current operations, nor that it will unreasonably restrict any future expansion of the ski area given the small footprint and potential impacts within critical habitat. In sum, developed ski areas meet the
Forest conditions that support northern spotted owls remain important even when those areas are also occupied by barred owls. Some northern spotted owls continue to occupy their traditional sites even in areas of dense barred owl populations, although they may modify their use of the area and expand their territories. Therefore, habitat remains vital to support these individuals.
The essential physical or biological features in terms of forest condition remain present even if not being used currently by territorial spotted owls because of the presence of barred owls. See the primary constituent elements listed in the December 4, 2012, revised critical habitat rule for a description of the physical or biological features that are essential to the conservation of the northern spotted owl (77 FR 71876; p. 72051).
Concerning the capacity to effectively manage barred owls, management actions will likely be shared by several Federal agencies as all Federal agencies have a responsibility in the recovery of listed species. Thus, any barred owl management will not be dependent solely on the financial and logistical capacity of the Service alone.
We have incorporated comments received on the July 20, 2021, proposed rule in the preceding comments sections where comments were similar to comments received on the August 20, 2020, proposed rule. In this section, we summarize and respond to the remaining comments received on the July 20, 2021, proposed rule.
In our July 20, 2021, proposed rule, we stated that “[m]onitoring will assess status and trends in northern spotted owl populations and habitat to evaluate whether the implementation of the RMPs is reversing the downward trend of populations and maintaining and restoring habitat necessary to support viable owl populations (BLM 2016a).” Effectiveness monitoring under the RMPs occurs every 5 years in conjunction with the effectiveness monitoring program established under the NWFP. The most recent demographic meta-analysis (Franklin
It is important to note that, in proposing this exclusion, the Service considered the very specific circumstances of the 2016 RMPs developed by BLM pursuant to its authorities and responsibilities, including under the O&C Act, as well as our commitment to consider exclusions in the settlement of litigation regarding the 2012 critical habitat rule. Therefore, the Service does not consider the exclusion of Federal lands in this final rule to set precedent for other Federal lands.
This final rule incorporates changes to our proposed rule based on the comments and information we received, as discussed above in the Summary of Comments and Recommendations. All changes made were included accordingly in the document, tables, and maps. As a result, the final designation of critical habitat reflects the following changes from the July 20, 2021, proposed rule (86 FR 38246):
1. We corrected acreage calculation errors and considered updated boundaries for Harvest Land Base lands from the BLM in the acreages of lands proposed for exclusion in Subunits NCO 4, NCO 5, ORC 1, ORC 2, ORC 3, ORC 5, ORC 6, WCS 1, WCS 2, WCS 3, WCS 4, WCS 5, WCS 6, ECS 1, ECS 2, KLW 1, KLW 2, KLW 3, KLW 4, KLW 5, KLE 1, KLE 2, KLE 3, KLE 4, KLE 5, KLE 6. As a result, the exclusions in this final rule are 359 acres (145 hectares) more than what was included in the proposed rule.
2. We corrected the coordinates or plot points from which the maps were generated. The information is available at
In our March 1, 2021, final rule (86 FR 11892) extending the effective date of the January Exclusions Rule, we acknowledged that the additional areas excluded in that final rule (more than 3.2 million acres (1.3 million hectares)) and the rationale for the additional exclusions were not presented to the public for notice and comment. We noted that several members of Congress expressed concerns regarding the additional exclusions, among other concerns, which they identified in a February 2, 2021, letter to the Inspector General of the Department of the Interior seeking review of the January 15, 2021, final rule. We also noted we received at least two notices of intent to sue from interested parties regarding allegations of procedural defects, among other potential defects, with respect to our rulemaking for the final critical habitat exclusions.
We received a number of comments in response to our March 1, 2021, final rule wherein we invited public comment on: (1) Any issues or concerns about whether the rulemaking process was procedurally adequate; (2) whether the Secretary's conclusions and analyses in the January Exclusions Rule were consistent with the law, and whether the Secretary properly exercised his discretion under section 4(b)(2) of the Act in excluding the areas at issue from critical habitat; and (3) whether, and with what supporting rationales, the Service should reconsider, amend, rescind, or allow to go into effect the January Exclusions Rule. Commenters identified potential defects in the January Exclusions Rule—both procedural and substantive. We summarized these comments in our April 30, 2021, final rule delaying the effective date of the January Exclusions Rule until December 15, 2021 (86 FR 22876).
Based on these comments and concerns, and comments we received on our July 20, 2021, proposed rule (86 FR 38246) (see Summary of Comments and Recommendations section above), we reconsidered the rationale and justification for the large exclusion of critical habitat identified in the January Exclusions Rule. As a result, the Service concludes that there was insufficient rationale and justification to support the exclusion of approximately 3,472,064 acres (1,405,094 hectares) from critical habitat for the northern spotted owl, an exclusion that removed an additional approximately 3.2 million acres (1.3 million hectares) from designation as compared with the August 2020 proposed rule. Our reexamination of the January Exclusions Rule identified defects and shortcomings, which we summarize in the following paragraphs. We received additional comments addressing these asserted defects and shortcomings in response to our July 20, 2021, proposed rule, and addressed those above, see responses to
We provided an insufficient opportunity for the public to review and comment on the changes made from the proposed to final exclusions in the January Exclusions Rule, which would have necessitated additional notice and an opportunity to comment. The January Exclusions Rule, had it gone into effect, would have excluded substantially more acres (36 percent of designated critical habitat versus the 2 percent proposed in the August 11, 2020, proposed revised rule). The January Exclusions Rule also excluded critical habitat in a much broader geographic area than proposed, including adding exclusions in Washington and California when only exclusions in Oregon had been included in the proposed rule. The January Exclusions Rule also included new rationales for the exclusions that were not identified in the August 11, 2020, proposed revised critical habitat rule (85 FR 48487). These included generalized assumptions about the economic impact of both the listing of the northern spotted owl and the subsequent designation of areas as critical habitat; the stability of local economies and protection of the local custom and culture of counties; the presumption that exclusions would increase timber harvest and result in longer cycles between harvest, that timber harvest
Additionally, the January Exclusions Rule excluded all of the O&C lands managed by BLM and USFS including those allocated to reserves. In our January Exclusions Rule, we failed to reconcile our prior finding that areas designated on O&C lands were essential to the conservation of the subspecies. The Service previously concluded in our 2012 critical habitat rule (77 FR 71876) that the O&C lands and portions of other lands managed as “matrix” lands for timber production significantly contribute to the conservation of the northern spotted owl, that recovery of the owl cannot be attained without the O&C lands, and that our analysis showed that not including some of these O&C lands in the critical habitat network resulted in a significant increase in the risk of extinction.
In response to our March 1, 2021, rule (86 FR 11892) extending the effective date of the January Exclusions Rule, some commenters stated that we provided sufficient notice and an opportunity for the public to be aware of the potential for the expansion of the exclusions from the proposed to final rules. Industry groups asserted that the August 11, 2020, proposed revised critical habitat rule (85 FR 48487) made clear that additional exclusions were being considered, in part, based on our request for information on additional exclusions we should consider (AFRC 2021, pp. 5-;6). In contrast, many other commenters objected to a lack of notice and opportunity to comment on the significant changes. These included comments from the newly impacted State fish and wildlife agencies (Washington Department of Fish and Wildlife 2021, California Department of Fish and Wildlife 2021). In addition, the exclusion of all “matrix” lands managed by the USFS amounted to over 2 million acres in areas of the National Forests in three States, with limited analysis of the effects of such exclusions on the conservation of the northern spotted owl and in hindsight, minimal supporting rationale. If we had decided to implement the January Exclusions Rule, in order to ensure a robust opportunity for public input on the changes, we would have erred on the side of transparency and would have opened a public comment period on that rule and considered that feedback before deciding to implement the rule. Based on our review, we proposed instead to withdraw the January Exclusions Rule, prior to its implementation, due to a number of concerns that the exclusions would be inconsistent with the conservation purposes of the Act, which we summarize below and affirm in this final rule.
First, the large additional exclusions made in the January Exclusions Rule were premised on inaccurate assumptions about the status of the owl and its habitat needs. The large additional exclusions were based in part on an assumption that barred owl control is the primary requirement for northern spotted owl recovery, when in fact the best scientific data indicate that protecting late-successional habitat also remains critical for the conservation of the spotted owl as well (FWS 2020, p. 83; Franklin
In addition, in concluding that the exclusions of the January Exclusions Rule will not result in the extinction of the northern spotted owl (a finding necessary for any section 4(b)(2) exclusions), the January Exclusions Rule relied, in part, upon a large-scale barred owl removal program that is not yet in place. The Service is in the process of developing a barred owl management strategy, but the specific features of any such program and where they may be applied are yet to be determined, and the Service will engage public review and comment before deciding. As discussed above, our experimental removal of barred owls showed a strong, positive effect of that removal on the survival of spotted owls, but considerable economic, logistical, social, and regulatory issues remain before large-scale non-experimental removal of barred owls could occur.
Since completion of the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011), the Service has worked closely with Federal and State land managers to minimize or avoid impacts to extant spotted owls due to timber harvest, while at the same time carrying out the barred owl removal experiment (Wiens
Second, the January Exclusions Rule undermined the biological redundancy of the critical habitat network by excluding large areas of critical habitat across the range of the northern spotted owl. The 2012 critical habitat designation (77 FR 71876) increased in size compared to previous designations, in part to account for the likelihood of habitat loss due to more frequent wildfires. This increase provided for biological redundancy in northern spotted owl populations and habitat by maintaining sufficient habitat on a landscape level in areas prone to frequent natural disturbances, such as the drier, fire-prone regions of its range (Noss
As stated earlier, in the development of habitat conservation networks generally, the intent of spatial redundancy is to increase the likelihood that the network and populations can sustain habitat losses by inclusion of multiple populations unlikely to be affected by a single disturbance event. This redundancy is essential to the conservation of the northern spotted owl because disturbance events such as fire can potentially affect large areas of habitat with near-term negative consequences for northern spotted owls. This redundancy can also allow for a relatively small amount of human-caused disturbance such as timber harvest without jeopardizing the subspecies or adversely modifying its critical habitat, provided that
The January Exclusions Rule also failed to consider the needs for connectivity between critical habitat units, particularly in southern Oregon where dispersal habitat is already limited in areas that were excluded in the January Exclusions Rule. Successful dispersal of northern spotted owls is essential to maintaining genetic and demographic connections among populations across the range of the subspecies (FWS 2020, p. 24). As stated previously, some critical habitat subunits that were designated to provide this support were reduced in the January Exclusions Rule by up to 90 percent. If these exclusions were implemented and management actions or plans were amended to allow for increased harvest at the scale of these exclusions, these subunits would no longer provide the demographic support for which they were designated. Again, as described above, the Service anticipates and plans for some amount of human-caused and natural disturbance in these critical habitat units, meted out over space and time in a manner that supports recovery over the long term. The January Exclusions Rule could facilitate timber harvest that could greatly accelerate those impacts well beyond what was anticipated in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and various land management plans.
The January Exclusions Rule also overstates the conservation value of areas not designated as critical habitat for the owl on other Federal lands, such as national parks and designated wilderness areas. These Federal lands do contain habitat for the northern spotted owl and are generally protected from proposed Federal activities that would result in significant removal of that habitat, and so they do provide areas that can serve as refugia for northern spotted owls. These protected areas, however, are relatively small and widely dispersed across the range of the owl. As we noted above, these areas are also typically high-elevation lands, and it is unlikely that the owl populations would be viable if their habitat were restricted to these areas (55 FR 26114, June 26, 1990; p. 26177). They are disjunct from one another and cannot be relied on to sustain the subspecies unless they are part of and connected to a wider reserve network as provided by the 2012 critical habitat designation (77 FR 71876, December 4, 2012). As discussed above, that network would have been greatly diminished and fragmented by the January Exclusions Rule if implemented. See also our response to
Third, under section 4(b)(2) of the Act, the Secretary cannot exclude areas from critical habitat if he or she finds, “based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” The January Exclusions Rule relied upon a determination that the exclusions will not result in the extinction of the northern spotted owl based in part on a faulty interpretation of the science relevant to spotted owl conservation. Specifically, the then-Director in her memo to the Secretary of January 7, 2021 (FWS 2021a) overestimated the probability that the northern spotted owl population would persist into the foreseeable future if a large portion of critical habitat was removed and subsequent timber harvest were to occur on those lands. The then-Director excluded 3,472,064 acres (1,405,094 hectares) from the total of 9,577,342 acres (3,875,812 hectares) designated as critical habitat in 2012, or 36 percent of the total. Most of this exclusion is concentrated in Oregon and, due to its geographic location and habitat quality, it represents a significant portion of the subspecies' most important remaining habitat. The O&C lands, for example, encompass 37 percent of the lands that were covered under the NWFP in Oregon and provide important habitat for reproduction, connectivity, and survival in the Coast Range and portions of the Klamath Basin and provide connectivity through the Coast Range and between the Coast Range and western Cascades (Thomas
The best scientific information indicates that the northern spotted owl population is in a precipitous decline, and the Service recently concluded that the subspecies warranted reclassification to endangered status under the Act (85 FR 81144, December 15, 2020). The subspecies is essentially extirpated from British Columbia, rapidly declining to near extirpation in Washington and parts of Oregon, and is in the earlier stages of similar declines in the rest of its range. Northern spotted owls are declining at a rate of 5.3 percent across their range, and populations in Oregon and Washington have declined by over 50 percent, with some declining by more than 75 percent, since 1995 (Franklin
The Director's memo failed to recognize that (1) spotted owl populations are declining precipitously due to a combination of historical habitat loss and more recent competition with the barred owl; and (2) the only way to arrest this decline and have a high probability of preventing extinction (in any timeframe) is to both manage the barred owl threat
The 2012 critical habitat designation—including the relatively minor exclusions (approximately two percent) proposed here on BLM land in the Harvest Land Base—preserves the habitat conservation portion of this goal. The much larger exclusion of 36 percent proposed in the January Exclusions Rule thwarts this goal, given its large size and its disproportionate concentration in high-quality habitat in Oregon. The Service finds that the January Exclusions Rule would have resulted in the northern spotted owl's extinction even though spotted owls are long-lived and are widely dispersed over a large geographic range. Individual spotted owls can live up to 20 years, and they
Forces working against the persistence of these isolated subpopulations include genetic inbreeding and catastrophic stochastic events such as wildfire. Therefore, it is a reasonable scientific conclusion that the subspecies would go extinct under such conditions, but this extinction process will occur over decades as these forces manifest themselves and as long-lived individuals die off. The extinction would not occur immediately, as it might with rarer and more short-lived species, but eventual extinction remains a scientifically predictable outcome with a high likelihood of certainty. Yet by the time it becomes apparent that extinction were imminent, it would likely be too late to provide sufficient protected habitat. This was one of the issues that led to the listing of the northern spotted owl in the first place—the loss of old-growth habitat at such a rapid pace that it was predicted to disappear from federally managed forested habitats within several decades (55 FR 26114, June 26, 1990; p. 26175). The Act requires us to use the best available science when applying the discretion afforded in section 4(b)(2), and this includes making a reasonable and defensible scientific interpretation of extinction risk that is relevant to the species under consideration. In this final rule, we correct the previous misapplication of section 4(b)(2) extinction risk analysis, which would not meet the Act's purpose of conserving listed species and the ecosystems on which they depend.
In sum, substantial issues were raised that the January Exclusions Rule would preclude the conservation of the northern spotted owl, a subspecies we recently found warrants reclassifying as an endangered species in danger of extinction throughout its range (85 FR 81144, December 15, 2020). Upon review and reconsideration as described above, the Service withdraws the January Exclusions Rule and instead excludes 204,294 acres (82,675 hectares) within 15 counties in Oregon as explained further below. This relatively small exclusion represents only 2 percent of the total designated critical habitat, in contrast to the 36 percent proposed in the January Exclusions Rule, and it is consistent with the long-term recovery and conservation goals of the northern spotted owl.
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 to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Under our implementing regulations, this means the Federal action cannot directly or indirectly appreciably diminish the value of critical habitat as a whole for the conservation of the listed species, see 50 CFR 402.02, definition of “destruction or adverse modification.” The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation also does not allow the government or public to access private lands, nor does designation 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.
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 and 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 areas occupied by the species at the time of listing, we focus on the 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 may 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 only consider unoccupied areas to be essential 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.
In our December 4, 2012, final rule (77 FR 71876), we determined that all units and subunits met the Act's definition of being within the geographical area occupied by the species at the time of listing. Our determination was based on the northern spotted owl's wide-ranging use of the forested landscape, and the distribution of known owl sites at the time of listing. In addition, we noted that parts of most units and subunits contain a forested mosaic that includes younger forests that may not have been occupied at the time of listing. Even though we had reasonable certainty based on modeling that such areas were occupied at the time of listing, because we did not have complete survey data, we also evaluated these areas under the “unoccupied” standard, and found they were essential to the conservation of the species (77 FR 71876; p. 71971). Because the forest habitat is dynamic, we also noted the value of the younger forests in being the source of continued growth to develop more fully into the high-quality habitat preferred by owls for nesting, roosting, and foraging (77 FR 71876; p. 71971).
These “younger forest” stands that are part of the forest mosaic within the critical habitat units may not contain all of the high-quality characteristics of the habitat preferred by owls for nesting and roosting, but they contain the resources and conditions necessary to support one or more life processes and are, thus, “habitat” for the northern spotted owl. Our December 4, 2012, final rule (77 FR 71876) includes four PBFs (formerly referred to as primary constituent elements, or PCEs) specific to the northern spotted owl. In summary, PBF (1) is forest types that may be in early-, mid-, or late-seral stages and that support the northern spotted owl across its geographical range; PBF (2) is nesting and roosting habitat; PBF (3) is foraging habitat; and PBF (4) is dispersal habitat (see 77 FR 71876, December 4, 2012, pp. 72051-72052, for a full description of the PBFs). Not all of the designated critical habitat contains all of the PBFs, because not all life-history functions require all of the PBFs. Some subunits contain all PBFs and support multiple life processes, while some subunits may contain only PBFs necessary to support the species' particular use of those subunits as habitat. However, all of the areas designated as critical habitat support at least PBF (1), in conjunction with at least one other PBF. Thus, PBF (1) must always occur in concert with at least one additional PBF (PBFs 2, 3, or 4) (77 FR 71876, December 4, 2012, p. 71908). The younger forest areas are habitat for the owl and were included in the designation to provide, at a minimum, connectivity (physical and biological feature (PBF) (4)-dispersal habitat) between occupied areas, room for population growth, and the ability to provide sufficient habitat on the landscape for the owl in the face of natural disturbance regimes (
Some continue to assert that a few sentences in the 2012 critical habitat rule, or in memoranda developed in support of the economic analysis are proof that the Service inappropriately designated “non-habitat” in the 2012 rule. We acknowledge that we may have been imprecise in our language in places in the 2012 critical habitat preamble, and/or in other places in the large rulemaking record, but as we explain and reaffirm here, the designated critical habitat for the northern spotted owl as described in the regulation itself at 50 CFR 17.95(b) (the entry for “Northern Spotted Owl (
While all of the critical habitat units designated consist of habitat for the owl, some areas within these units and subunits will at times not be used by individual northern spotted owls due to a variety of reasons, whether they may be human activity (
Individual owls live for over twenty years, and during these two decades an individual owl may experience multiple disturbance events (
When determining critical habitat boundaries for the December 4, 2012, final rule, we made every effort to avoid including areas that lack physical or biological features for the northern spotted owl. Due to the limitations of mapping at fine scales, we were often not able to segregate these areas from areas shown as critical habitat on maps suitable in scale for publication within the Code of Federal Regulations. The following types of areas are not critical habitat because they are not and cannot support northern spotted owl habitat, and are not included in the 2012 designation: Meadows and grasslands, oak and aspen (
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 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 continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this subspecies. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
The exclusion of 204,294 acres (82,675 hectares) within 15 counties in Oregon as described in this document does not change the December 4, 2012, final rule currently in effect with two exceptions: The only sections of the rule that published at 77 FR 71876 (December 4, 2012) that would change with this revision are table 8 in the Exclusions discussion (pp. 71948-71949), the subunit maps related to the exclusions (pp. 72057-72058, 72062, 72065-72067), and the index map of Oregon (p. 72054). The regulations concerning critical habitat have been revised and updated since 2012 (81 FR 7414, February 11, 2016; 84 FR 45020, August 27, 2019; 85 FR 81411, December 16, 2020; 85 FR 82376, December 18, 2020). Our December 4,
Consistent with the standards of the Act and our regulations, 9,373,676 acres (3,793,389 hectares) are now identified in 11 units and 60 subunits as meeting the definition of critical habitat for the northern spotted owl. The 11 units are: (1) North Coast Olympics, (2) Oregon Coast Ranges, (3) Redwood Coast, (4) West Cascades North, (5) West Cascades Central, (6) West Cascades South, (7) East Cascades North, (8) East Cascades South, (9) Klamath West, (10) Klamath East, and (11) Interior California Coast Ranges. Land ownership of the designated critical habitat includes Federal, State, and local government lands. No Indian or private lands were included in the critical habitat designation in 2012; lands formerly managed by the BLM that were designated as critical habitat subsequently were transferred into trust for two Tribes, which meant that subsequently these Indian lands were within the critical habitat designation; we have excluded those lands with this final rule. The approximate area of each subunit and excluded area within critical habitat subunits is shown in table 1. Only the units and subunits that we have revised in this rule are described below; see the 2012 critical habitat rule for descriptions of the units and subunits that remain unchanged.
This revision excludes from critical habitat areas identified by BLM as allocated to the Harvest Land Base land use in the 2016 RMPs. Under the BLM RMPs, some land-use allocations, such as Riparian Reserve, require identification of features on the ground. The BLM typically determines the location of such features as part of implementing actions and subsequently corrects land-use allocation boundaries consistent with the direction in the RMP. Therefore, some areas within the 2012 critical habitat designation that are currently mapped as Riparian Reserve in the RMPs are corrected on site-specific review to be mapped as Harvest Land Base. These corrections are expected to be minor in scope and reflect the most accurate information. As such, we assume such corrected acreage in the Harvest Land Base would be excluded by this final rule. The Late-Successional Reserve, where the majority of critical habitat overlaps BLM-managed lands, is not subject to these boundary adjustments.
We used GIS data provided by BLM that identified land use allocations under their 2016 revised RMPs and lands transferred to be held in trust for Tribes under the Western Oregon Tribal Fairness Act to identify areas for exclusion in this final rule (BLM 2021b).
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
We finalized a new regulation regarding the application of section 4(b)(2) exclusion analyses on December 18, 2020 (85 FR 82376). Although the new regulation superseded our 2016 Policy and prior regulation regarding exclusion analyses, the new regulation “primarily adopts and deepens the provisions contained in the previous policy and rule” (85 FR 82376). By its terms, that new regulation applies to “critical habitat designations or revisions that FWS proposes after the effective date of this rulemaking action.”
Thus, we considered the best information available regarding economic, national security, and other relevant impacts. “Economic impacts” may include, but are not limited to, the economy of a particular area, productivity, jobs, and any opportunity costs arising from the critical habitat designation (such as those anticipated from reasonable and prudent alternatives that may be identified through a section 7 consultation) as well as possible benefits and transfers (such as outdoor recreation and ecosystem services). “Other relevant impacts” may include, but are not limited to, impacts to Tribes, States, local governments, public health and safety, community interests, the environment (such as increased risk of wildfire or pest and invasive species management), Federal lands, and conservation plans, agreements, or partnerships. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
The Secretary has discretion whether to conduct an exclusion analysis under section 4(b)(2) in accordance with our regulations at 50 CFR 17.90(c). The Secretary will conduct an exclusion analysis when the proponent of excluding a particular area (including but not limited to permittees, lessees, or others with a permit, lease, or contract on federally managed lands) has presented credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area. The Secretary may also otherwise decide to exercise discretion to evaluate any particular area for possible exclusion.
We received requests to exclude many areas within the critical habitat designation for the northern spotted owl. In determining whether we would conduct an exclusion analysis, we first evaluated whether the proponent of those exclusions presented credible information of a meaningful impact supporting benefits of excluding these areas. We found several requests did not meet this standard as described below (similar requests have been grouped into categories).
We received requests from several commenters to exclude younger forests; subunits with greater than 50 percent younger forests; low-quality habitat; stands under 80 years old; habitat-capable lands; areas for dispersal or connectivity; areas occupied by barred owls; parcels of less than 3,000 acres (1,214 hectares); smaller, fragmented parcels; previously burned Late-Successional Reserve; areas that have burned at high severity; and all “uninhabited” lands. All of these requests for exclusion rely on assertions that the areas either do not meet the definition of habitat for the northern spotted owl and must, therefore, not be designated as critical habitat, or that these areas should not be designated because they are currently “unoccupied” by owls. We did not conduct an exclusion analysis for these areas because the requests were based on the assertion that these areas are not habitat or that they cannot be essential to the recovery of the northern spotted owl because they are not currently occupied. These requests are not subject to an exclusion analysis because they are premised on incorrect conclusions regarding whether areas are “habitat” for the northern spotted owl in the first instance, misapprehend the concept of “occupied at the time of listing” which is the basis for critical habitat designation, or simply seek to re-argue elements of the critical habitat designation in 2012 that were determined in that rulemaking. See also our responses to
We received comments seeking exclusions of areas of moderate to high fire risk; fire-prone forests or specific subunits in fire-prone areas; and areas of dry forest in California and the eastern Washington Cascades; and stating that all California lands because the critical habitat designation is asserted to conflict with active forest management designed to reduce the risk of wildfire and lead to subsequent fire suppression costs and reduced revenue. We did not conduct an exclusion analysis for these areas because the requests are based on the assertion that the critical habitat designation impedes active forest management and the asserted costs and lost revenue are based on this misunderstanding.
We find this assertion to be unfounded as described in our responses to
We received requests to exclude adaptive management areas and experimental forests based on the assertion that critical habitat places additional constraints on actions in these areas that will limit the ability to conduct scientifically credible work; that they are not suitable habitat due to the age-class of certain stands or as evidenced by a lack of current occupancy; that their designation has economic impacts; and an assertion that
We received requests from Douglas County to exclude several areas, including all USFS and BLM lands; private and State lands; county lands in Oregon; all lands in Douglas County; and BLM lands that are not O&C lands. They asserted various reasons for these requests, including: Reducing government processes (“red tape”), a need to provide management flexibility and ease of administration, economic impacts, and other reasons included in the requests described above. We did not conduct an exclusion analysis for these areas based on government process requirements or ease of administration because the commenters did not provide information pertaining to these areas that there are meaningful impacts related to these issues that may support benefits of excluding these areas. We do not agree with the assertion that the critical habitat designation conflicts with a need to provide management flexibility as described in our responses to
We received requests from Lewis and Skamania Counties, Washington, to exclude the White Pass Ski Area. While the counties provided information pertaining to the economic benefits the ski area provides to the local community, they did not provide information regarding the impact of the critical habitat designation beyond the need to conduct section 7 analyses for critical habitat. No information or evidence was presented to indicate that the critical habitat designation does or will impair the ski area's current operations, nor that it has or will unreasonably restrict any future expansion of the ski area given the small footprint and potential impacts within critical habitat. And, as noted in our response to
The Secretary conducted exclusion analyses when the proponent of excluding a particular area (including but not limited to permittees, lessees, or others with a permit, lease, or contract on federally managed lands) presented credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area. These include requests for the exclusion of Indian lands, BLM Harvest Land Base lands, O&C lands and USFS matrix lands, and Douglas County lands. These exclusion analyses are below in Exclusions Based on Other Relevant Impacts.
When identifying the benefits of inclusion of an area as designated critical habitat, we primarily consider the additional regulatory benefits that that area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus (that is, an activity or program authorized, funded, or carried out in whole or in part by a Federal agency). We may also consider the educational benefits of mapping essential habitat for recovery of the listed species, benefits that may result from a designation due to State or Federal laws that may apply to critical habitat, and other benefits such as outdoor recreation or ecosystem services. In situations where economic benefits are relevant, we generally describe two broad categories of benefits of inclusion of particular areas of critical habitat: (1) Those associated with the primary goal of species conservation and recovery, and (2) those that derive from the habitat conservation measures to achieve this primary goal.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in economic benefits through creating or preventing the elimination of jobs, avoiding project delays or impediments that affect community interests, increased public health and safety, reduction of environmental risks (such as increased risk of wildfire or pest and invasive species management), and maintenance or fostering of partnerships that provide existing conservation benefits or may result in future conservation actions. The Secretary can consider the existence of conservation agreements and other land management plans with Federal, State, private, and Tribal entities when making decisions under section 4(b)(2) of the Act. The Secretary may also consider relationships with landowners, voluntary partnerships, and conservation plans, and weigh the implementation and effectiveness of these against that of designation to determine which provides the greatest conservation value to the listed species.
In the case of the northern spotted owl, the benefits of including an area as designated critical habitat include public awareness of the presence of northern spotted owls and the need for conservation, including habitat protection, and, where a Federal nexus exists, increased habitat protection for northern spotted owls through the Act's section 7(a)(2) mandate that Federal agencies insure that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. Additionally, continued implementation of an ongoing management plan for the area that provides conservation equal to or greater than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation.
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. We weigh the benefits of including or excluding particular areas according to the following principles pursuant to 50 CFR 17.90(d):
(1) We analyze and give weight to impacts and benefits consistent with expert or firsthand information in areas outside the scope of the Service's expertise unless we have knowledge or material evidence that rebuts that information. Impacts outside the scope of the Service's expertise include, but are not limited to, nonbiological impacts identified by federally recognized Indian Tribes; State or local governments; and permittees, lessees, or contractor applicants for a permit, lease, or contract on Federal lands.
(2) We analyze and give weight to economic or other relevant impacts relative to the conservation value of the area being considered. We give weight to those benefits in light of the Service's expertise.
(3) When weighing areas covered by conservation plans, agreements, or partnerships that have been authorized by a permit under section 10 of the Act, we consider: Whether the permittee is properly implementing the conservation plan or agreement; whether the species for which critical habitat is being designated is a covered species in the conservation plan or agreement; and whether the conservation plan or agreement 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.
(4) When weighing areas that are covered by conservation plans, agreements, or partnerships that have not been authorized by a permit under section 10 of the Act, we consider: The degree to which the record supports a conclusion that designation would impair the realization of the benefits expected from the plan, agreement, or partnership; the extent of public participation in the development of the conservation plan; the degree to which agency review and required determinations have been completed; whether NEPA reviews or similar reviews occurred, and the nature of any such reviews; the demonstrated implementation and success of the chosen mechanism; the degree to which the plan or agreement provides for the conservation of the physical or biological features that are essential to the conservation of the species; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented; and 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. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, then the Secretary will exclude the area under section 4(b)(2) unless, based on the best scientific and commercial data available, the failure to designate the area as critical habitat will result in the extinction of the species.
Under section 4(b)(2) of the Act, we must consider all relevant impacts of the designation of critical habitat, including economic impacts. In addition to economic impacts (discussed in the Economic Analysis section, below), we considered a number of factors in a section 4(b)(2) analysis. We considered whether Federal or private landowners or other public agencies have developed management plans, habitat conservation plans (HCPs), or Safe Harbor Agreements (SHAs) for the area or whether there are conservation partnerships or other conservation benefits that would be encouraged or discouraged by exclusion from critical habitat in an area. We also considered other relevant impacts that might occur because of the designation. To ensure that our final determination is based on the best available information, we also considered comments received on economic, national security, or other potential impacts resulting from the 2012 designation of critical habitat from governmental, business, or private interests and, in particular, any potential impacts on small businesses. Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we evaluated whether certain lands in the proposed revised critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act.
Based on the information provided by entities supporting exclusions from critical habitat designation, as well as any additional public comments we received, we evaluated whether the areas proposed for exclusion were appropriate to exclude from the final designation under section 4(b)(2) of the Act. Our analysis indicated that the benefits of excluding these lands from the final designation outweigh the benefits of including the lands as critical habitat; therefore, the Secretary exercises her discretion to exclude these lands from the final designation. Accordingly, we exclude the areas identified in Table 8 Addendum under section 4(b)(2) of the Act from the critical habitat designation for the northern spotted owl. Table 8 identifies the specific critical habitat units from the December 4, 2012, final rule (77 FR 71876), which is codified in title 50 of the Code of Federal Regulations (CFR) at § 17.95(b), that we are excluding, at least in part; the approximate areas (ac, ha) of lands involved; and the ownership of the excluded areas. The Table 8 Addendum that follows displays this same information but in the format used in Table 8 in the December 4, 2012, final rule (77 FR 71876; pp.71948-71949).
These exclusions are based on new information that has become available since the December 4, 2012, critical habitat designation for the northern spotted owl (77 FR 71876), including BLM's 2016 revision to its RMPs for western Oregon (BLM 2016a, 2016b) and the Western Oregon Tribal Fairness Act (Pub. L. 115-103). In the paragraphs below, we provide a detailed analysis of our consideration of these lands excluded under section 4(b)(2) of the Act.
We did not exclude areas from our December 4, 2012, final critical habitat designation (77 FR 71876) based on economic impacts, and we are not now excluding any areas solely on the basis of economic impacts. The FEA of the 2012 critical habitat designation for the northern spotted owl found the incremental effects of the designation to be relatively small due to the extensive conservation measures already in place for the subspecies because of its listed status under the Act and because of the measures provided under the NWFP (USFS and BLM 1994) and other conservation programs (IEc 2012, pp. 4-32, 4-37). Thus, we concluded that the future probable incremental economic impacts were not likely to exceed $100 million in any single year, and impacts that are concentrated in any geographic area or sector were not likely as a result of designating critical habitat for the northern spotted owl. The incremental effects included: (1) An increased workload for action agencies and the Service to conduct reinitiated section 7 consultations for ongoing actions in newly designated critical habitat (areas proposed for designation that were not already included within the extant designation); (2) the cost to action agencies of including an analysis of the effects to critical habitat for new projects occurring in occupied areas of designated critical habitat; and (3) potential project alterations in areas where owls are not currently present within designated critical habitat.
Although we considered the incremental impact of administrative costs to Federal agencies associated with consulting on critical habitat under section 7 of the Act, economic impacts are not the primary reason for the exclusions we are adopting in this rule. See the December 4, 2012, final rule for a summary of the FEA and our consideration of economic impacts (77 FR 71876; pp. 71878, 71945-71947, 72046-72048). Our critical habitat regulations require that at the time of publication of a proposed rule to designate critical habitat, the Secretary make available for public comment a draft economic analysis of the designation (85 FR 82376, December 18, 2020). We reviewed the FEA (IEc 2012) as well as comments and additional information received on the proposed rule, and determined that because we were proposing only to exclude (
Further, we have determined that the exclusion of the Harvest Land Base lands from critical habitat for the northern spotted owl would not itself result in changes in management or conservation outcomes for those lands. The BLM considered the critical habitat designation in revising its RMPs in 2016, and the design and implementation of future projects will follow the RMP management direction for each land-use allocation. We analyzed the RMPs and concluded that the land-use allocations and the management direction—including carefully designed timber harvest within the Harvest Land Base—would not jeopardize the owl's continued existence, nor destroy or adversely modify its designated critical habitat. With the exclusions of the Harvest Land Base areas from critical habitat finalized
We note that during the public comment period on our prior proposed revised critical habitat rule (85 FR 48487, August 11, 2020), the American Forest Resource Council (AFRC 2020) and other commenters provided a new report prepared by The Brattle Group (2020) (Brattle Report) critiquing the 2012 critical habitat FEA (IEc 2012) and also provided a supplemental report prepared by The Brattle Group (2021) (Brattle supplement) in response to the July 20, 2021, proposed rule (86 FR 38246). The Brattle Report and supplement included updated estimates of the economic impacts of the 2012 rule using more recent data and/or different assumptions. We contracted with IEc to review the Brattle Report and provided a response to the report in the January 15, 2021, final rule (86 FR 4820; pp. 4825-4827). We also contracted with IEc to review the Brattle supplement and have provided a response to the supplement in this rule. We incorporated our review and consideration of this information in our response to comments above (See
We did not exclude areas from our December 4, 2012, revised critical habitat designation based on impacts on national security, but we did exempt Joint Base Lewis-McChord lands based on the integrated natural resources management plan under section 4(a)(3) of the Act (77 FR 71876; pp. 71944-71945). We did not receive any comments or additional information on the impacts of the proposed revised designation on national security or homeland security. Therefore, we are not excluding any additional areas on the basis of impacts on national security.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are other conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we consider any Tribal forest management plans and partnerships and consider the government-to-government relationship of the United States with Tribes. Consistent with our regulations (see 50 CFR 17.90(d)(1)), we consider impacts identified by experts in, or by sources with firsthand knowledge of, areas that are outside the scope of the Service's expertise, giving weight to those benefits consistent with the expert or firsthand information, unless we had knowledge or material evidence that rebuts that information.
Several Executive Orders, Secretarial Orders, and policies concern our working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Indian 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, Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most comprehensive of the various guidance documents related to Tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In addition to the general direction discussed above, S.O. 3206 explicitly recognizes the right of Tribes to participate fully in the listing process, including designation of critical habitat. The Order also states: “Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.” In light of this instruction, when we undertake a discretionary section 4(b)(2) exclusion analysis, we always consider exclusions of Indian lands under section 4(b)(2) of the Act prior to finalizing a designation of critical habitat, and will give great weight to Tribal concerns in analyzing the benefits of exclusion.
In this final designation, the Secretary has exercised her discretion under section 4(b)(2) of the Act to exclude from this critical habitat designation certain Indian lands (lands held in trust) for two federally recognized Tribes: 14,590 acres (5,808 hectares) for the Cow Creek Band of Umpqua Tribe of Indians (CCBUTI) and 5,571 acres (2,254 hectares) for the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians (CTCLUSI). See table 1 for the unit and subunit locations of these Indian lands.
In our December 4, 2012, final rule (77 FR 71876), we prioritized areas for critical habitat designation by looking first to Federal lands, followed by State, private, and Indian lands. No Indian lands were designated in our 2012 final rule because we found that we could achieve the conservation of the northern spotted owl by limiting the designation to other lands. However, on January 8, 2018, the Western Oregon Tribal Fairness Act (Pub. L. 115-103) was passed by Congress and signed by the President. This act mandated that certain lands managed by BLM be taken into trust by the United States for the benefit of two Tribes and transferred management authority of approximately 17,800 acres (7,203 hectares) to CCBUTI and 14,700 acres (5,949 hectares) to CTCLUSI. Of the transferred lands, 20,161 acres (8,062 hectares) are located within designated critical habitat for the northern spotted owl. We considered this new information, as well as comments received on this proposed exclusion of these lands, and we are now excluding these Indian lands under section 4(b)(2) of the Act, as explained below.
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
Another possible benefit is that the designation of critical habitat can serve to educate landowners and land managers and the general public regarding the potential conservation value of an area, and this may contribute to conservation efforts by other parties by clearly delineating areas of high conservation value for certain species. The designation of critical habitat, by providing information about the northern spotted owl and its habitat that reaches a wide audience, including other parties engaged in conservation activities, is considered of broad conservation value.
Designation of critical habitat may also increase awareness of the conservation importance of the area when activities are addressed under other Federal laws that require consideration of the potential environmental effects of proposed projects. Designated critical habitat signals the presence of important habitat that can trigger additional environmental review under these laws, and can help to reinforce careful consideration of the effects of actions on the environment. For example, significant effects to designated critical habitat (even if not resulting in destruction or adverse modification under the Act) could lead to additional environmental review under the National Environmental Policy Act, or other Federal 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. Thus, as Tribes compete for grants and other funding sources, wildlife-related conservation proposals that address areas of designated critical habitat may be more likely to be funded than projects not addressing critical habitat.
The benefits of exclusion of Indian lands from designated critical habitat are significant, and are tied to our commitment to support Tribal self-determination. We generally defer to Tribes to develop and implement conservation and natural resource management plans for their lands and resources, which includes benefits to the northern spotted owl and its habitat that might not otherwise occur. The CCBUTI and CTCLUSI are the governmental entities best situated to manage and promote the conservation of the northern spotted owl on their trust land consistent with the principles and policies indicated in Secretarial Order 3206; Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2). Our deference to these Tribes for their management of their trust lands enhances our existing effective working relationships, and allows us to support the Tribes in the manner they consider most useful as they lead efforts for the conservation of the northern spotted owl and its habitat on these lands.
We find that other conservation benefits are provided to the affected critical habitat subunits and the northern spotted owl and its habitat by excluding these lands from the designation. For example, the Continuous Forestry Management Approach adopted by the CCBUTI in their forest management plan takes proactive prevention, control, and recovery actions to mitigate damage and loss of forest values from wildfire, insects, and disease and other events. Additionally, the CTCLUSI has committed to coordination with the Service in developing its approach to conservation of listed species for these newly acquired lands. Both Tribes supported these exclusions in their comment letters in response to the proposed rule. For these reasons, we have determined that excluding these recently transferred lands from the designation of critical habitat for the northern spotted owl is of substantial benefit in aid of the unique relationship between the Federal Government and Tribes and in support of Tribal self-governance.
The benefits of including Indian 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 reinforcing review of environmental effects under other laws. While these regulatory benefits are important, in the context here, the Tribes' commitment to continue to coordinate with us in conserving habitat for the northern spotted owl in these newly acquired areas as they manage the landscape is also important. Consistent with principles of self-determination and the unique Federal-Tribal relationship, we conclude that these Tribally led efforts will be more effective if these lands are excluded from the designation. We view this as a substantial benefit because we have developed a cooperative working relationship for the mutual benefit of endangered and threatened species, including the northern spotted owl. Because the Tribes will implement habitat conservation efforts on these newly acquired lands, and are aware of the value of their lands for northern spotted owl conservation, the educational benefits of a northern spotted owl critical habitat designation are less important than they would otherwise be. 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 subspecies.
In summary, the benefits of these Indian lands in critical habitat are limited to some enhanced regulatory processes. The benefits of excluding these areas from designation as critical habitat for the northern spotted owl are significant, and include encouraging the continued development and implementation of special management measures that the Tribes plan for the future or are currently implementing. These activities and projects will allow the Tribes to manage their natural resources to benefit the northern spotted owl. This approach is consistent with the government-to-government nature of our working relationship with the Tribes, and 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 species that would not otherwise be available to encourage and maintain cooperative working relationships with the Tribes. 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 these Indian lands will not result in extinction of the subspecies. Firstly, as discussed under Effects of Critical Habitat Designation Section 7 Consultation in the 2012 critical habitat rule (77 FR 71876, December 4, 2012, p. 71937), if a Federal action or permitting occurs, the known presence of northern spotted owls or their habitat would require evaluation under the jeopardy standard of section 7 of the Act, even absent the designation of critical habitat, and thus will protect the subspecies against extinction. Secondly, the Tribes are committed to protecting and
The Secretary has broad discretion under the second sentence of section 4(b)(2) on how to weigh the impacts of designation. In particular, “[t]he consideration and weight given to any particular impact is completely within the Secretary's discretion.” (H.R. Rep. No. 95-1625, at 17 (1978)). In considering how to exercise this broad discretion, we are mindful that Federal land managers have unique obligations under the Act. First, Congress declared that “all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act”; see section 2(c)(1). Second, all Federal agencies have responsibilities under section 7 of the Act to carry out programs for the conservation of listed species and to ensure their actions are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.
Specific to critical habitat, the only direct consequence of its designation is the Act's requirement that Federal agencies ensure, through section 7 consultation, that any action they fund, authorize, or carry out does not destroy or adversely modify designated critical habitat. While the benefits of excluding non-Federal lands include development of new conservation partnerships, those benefits do not generally arise with respect to Federal lands, because of the independent obligations of Federal agencies under sections 2 and 7 of the Act.
Accordingly, the benefits of including Federal lands in a designation are greater than non-Federal lands because there is a Federal nexus for projects on Federal lands. Thus, if a project for which there is discretionary Federal involvement or control is likely to adversely affect the critical habitat, a formal section 7 consultation would occur and the Services would consider whether the project would result in the destruction or adverse modification of the critical habitat. The costs that this requirement may impose on Federal agencies can be divided into two types: (1) The additional administrative or transactional costs associated with the consultation process, and (2) the costs to Federal agencies and other affected parties, including applicants for Federal authorizations (
Thus, in any exclusion analysis for Federal lands, we will consider not only the transactional costs associated with section 7 consultation with a Federal agency, but also any potential costs to affected parties, including applicants for Federal authorizations (
In this final designation, the Secretary has exercised her discretion under section 4(b)(2) of the Act to exclude from this critical habitat designation 184,133 acres (74,613 hectares) of Harvest Land Base lands that are described and managed pursuant to the BLM RMPs revised in 2016 (BLM 2016a, 2016b). See table 1 for the unit and subunit locations of these exclusions.
The BLM RMPs provide direction for the management of approximately 2.5 million acres (1 million hectares) of BLM-administered lands for the purposes of producing a sustained yield of timber, contributing to the recovery of endangered and threatened species, providing clean water, restoring fire-adapted ecosystems, and providing for recreation opportunities (BLM 2016a, p. 20). The management direction provided in the RMPs is used to develop and implement specific projects and actions during the life of the plans.
The BLM RMP revisions assigned land-use allocations across BLM-managed lands in western Oregon; the land-use allocations define areas where specific activities are allowed, restricted, or excluded. The BLM land-use allocations include Late-Successional Reserve, Congressionally Reserved Lands and National Conservation Lands, District-Designated Reserves, and Riparian Reserve (collectively considered “reserve” land use allocations) and Eastside Management Area and Harvest Land Base (BLM 2016a, pp. 55-74).
Reserve land-use allocations comprise 74.6 percent (1,847,830 acres (747,790 hectares)) of the acres of BLM land under the RMPs (FWS 2016, p. 9). These lands are managed for various purposes, including preserving wilderness areas, natural areas, and structurally complex forest; recreation management; maintaining facilities and infrastructure; some timber harvest and fuels management; and conserving lands along streams and waterways. Of these lands, 51 percent (948,466 acres (383,830 hectares)) are designated as Late-Successional Reserve, 64 percent of which (603,090 acres (244,061 hectares)) are located within the critical habitat designation for the northern spotted owl (FWS 2016, p. 9). The management objectives for Late-Successional Reserve are designed to promote older, structurally complex forest and to promote or maintain habitat for the northern spotted owl and the marbled murrelet (listed as threatened under the Act), although some timber harvest of varying intensity is allowed. The Revised Recovery Plan for the Northern
The Harvest Land Base allocation comprises 19 percent (469,215 acres (189,884 hectares)) of the overall land use allocations and is where the majority of programmed timber harvest occurs (FWS 2016, p. 9; BLM 2016a, pp. 59-63). Of these acres, 39 percent (184,133 acres (74,613 hectares)) are located within the 2012 critical habitat designation for the northern spotted owl. Over 90 percent of these acres that are allocated to the Harvest Land Base and within designated critical habitat (172,712 acres (69,779 hectares)) are located on O&C lands. Under the management direction for the Harvest Land Base, timber harvest intensity varies based on the suballocation (moderate-intensity timber area, light-intensity timber area, or uneven-aged timber area) within the Harvest Land Base (BLM 2016a, pp. 59-63).
The management direction specific to the northern spotted owl (BLM 2016a, p. 100) applies to all land-use allocations designated in the BLM RMPs. This direction provides for the management of habitat to facilitate movement and survival between and through large blocks of northern spotted owl nesting and roosting habitat.
Based on new information provided in the revised BLM RMPs (BLM 2016a, 2016b), we are excluding from critical habitat 184,133 acres (74,613 hectares) of BLM lands where programmed timber harvest is planned to occur,
As discussed above, the primary effect of designating any particular area as critical habitat is the Act's prohibition against the destruction or adverse modification of such habitat, which is evaluated in consultation with the Service under section 7 of the Act. Absent critical habitat designation, Federal agencies remain obligated under section 7 of the Act to consult with us on actions that may affect a federally listed species to ensure such actions do not jeopardize the species' continued existence.
In general, this obligation to consult regarding effects to critical habitat remains a conceptual benefit of inclusion of the Harvest Land Base lands in the designated critical habitat. However, we completed a programmatic section 7 consultation on the BLM RMPs in 2016 that specifically addressed the impact of the BLM's plans to undertake timber harvest in the Harvest Land Base, including the effects on designated critical habitat. In consultation, the Service found that the management actions, including the level of timber harvest anticipated under these RMPs over the 50-year proposed timeline, was not likely to jeopardize the subspecies or destroy or adversely modify critical habitat (FWS 2016, pp. 700-703).
The programmatic approach of our section 7 consultation on the BLM RMPs allowed for the broad-scale evaluation of BLM's program to ensure that the management direction and objectives of the program are consistent with the conservation of listed species, while also providing a framework for site-specific consultation at the stepped-down, project-level scale. As individual projects are proposed under these RMPs, BLM consults at the project-specific level with the Service as necessary under section 7 to ensure that the site-specific actions will not jeopardize the subspecies, or destroy designated critical habitat. The step-down consultations also provide an opportunity for BLM to further minimize impacts to northern spotted owls as on-the-ground actions are designed and implemented.
As described in our Biological Opinion issued to the BLM (FWS 2016, pp. 4-5) and compared to a status quo without the BLM RMPs in place, the Service expects an overall net improvement in northern spotted owl populations on BLM lands under the RMPs, including when taking into account any take or adverse impacts to northern spotted owls due to timber harvest, fuels management, recreation, and other activities occurring under the RMPs. Our analysis of the impacts on the lands within the Harvest Land Base recognized that, while this land-use allocation was not intended to be relied upon for demographic support of northern spotted owls, the management direction under the BLM RMPs includes provisions that would contribute to the further development of late-successional habitat, including additional critical habitat features over time (FWS 2016, p. 553; 77 FR 71876, December 4, 2012, pp. 71906-71907). Although late-successional habitat currently existing within the Harvest Land Base may not remain on the landscape for the long term, the presence of northern spotted owl habitat within the Harvest Land Base in the short term would assist in northern spotted owl movement (PBF 4) across the landscape and could potentially provide refugia from barred owls while habitat continues to mature into more complex habitat and develop additional high-quality physical and biological features over time in reserved land-use allocations (FWS 2016, p. 553; 77 FR 71876, December 4, 2012, pp. 71906-71907).
Several aspects of the RMPs are expected to provide for northern spotted owl dispersal between physiographic provinces and between and among large blocks of habitat designed to support clusters of reproducing northern spotted owls even with the expected focus of harvest in the Harvest Land Base (FWS 2016, p. 698): The spatial configuration of reserves; the management of those reserves to retain, promote, and develop northern spotted owl habitat; and the management and scheduling of timber sales within the Harvest Land Base. In particular, BLM refined their preferred alternative management approach to minimize the creation of strong barriers to northern spotted owl east-west movement and survival between the Oregon Coast Range and Oregon Western Cascades physiographic provinces, and north-south movement and survival between habitat blocks within the Oregon Coast Range province, by augmenting its allocation to Late-Successional Reserve in those areas (BLM 2016c, p. 17). Therefore, BLM-planned timber harvest during the interim period while a barred owl management strategy is considered is not expected to substantially influence the distribution of northern spotted owls at the local, action area, or rangewide scales.
Of the designated critical habitat on BLM-managed lands in western Oregon addressed by the 2016 RMPs, 15 percent of critical habitat is designated on the Harvest Land Base and 85 percent is designated on other land-use allocations. We determined that the Harvest Land Base portion of the BLM landscape will provide less contribution to northern spotted owl critical habitat over time, while the reserve portions of the BLM lands will provide the necessary contributions for northern spotted owl conservation (FWS 2016, p. 554).
BLM will continue to rely on the effectiveness monitoring established under the NWFP for the northern spotted owl and late-successional and old-growth ecosystems. Effectiveness monitoring will assess status and trends in northern spotted owl populations and habitat to evaluate whether the implementation of the BLM RMPs is reversing the downward trend of populations and maintaining and
In sum, the revised BLM RMPs provide for the conservation of the essential PBFs throughout the reserve land-use allocations and distribute the impacts to northern spotted owl habitat in the Harvest Land Base over time while the habitat conditions in the reserve land-use allocations improve. Based on our analysis in the Biological Opinion on the BLM RMPs (FWS 2016, pp. 700-703) and the BLM's conclusions in its records of decision adopting the RMPs, the conservation strategies in the RMPs are likely to be effective. These conservation measures will continue to be in effect regardless of whether the Harvest Land Base areas are designated as critical habitat for the northern spotted owl.
The Harvest Land Base areas provide a relatively low level of short-term conservation value for northern spotted owls. Retaining them as designated critical habitat, which suggests that they have a conservation value similar or equal to that of the reserve lands, sends a confusing message to the public and local land managers. Also, Federal actions in the Harvest Land Base that may affect designated critical habitat require section 7 consultation to address the effect on the designated habitat. Our experience in section 7 consultations to date indicates that these consultations provide little incremental conservation benefit over what is already provided for in these updated BLM RMPs and the section 7 consultations for activities that may affect the northern spotted owl for review of whether the activities jeopardize the subspecies. Section 7 consultations require considerable efforts by the involved BLM and Service biologists to identify and assess the effects to the designated critical habitat acres and increases the transactional time and effort spent on consultations, even though the conclusion by the Service has to date been consistently that no adverse modification has resulted. Thus, continuing to consult on adverse modification of critical habitat for actions in the Harvest Land Base is not an efficient use of limited consultation and administrative resources, given the thorough section 7 consultation already conducted on the 2016 RMPs and in the project-specific consultations conducted since the 2016 RMPs. The benefits of continuing to include Harvest Land Base areas within critical habitat for the northern spotted owl are, therefore, limited.
Another benefit of including lands in a critical habitat designation is that it generally serves to educate landowners, land managers, State and local governments, and the public regarding the potential conservation value of an area. Identifying areas of high conservation value for the northern spotted owl can help focus and promote conservation efforts by other parties. Any additional information about the needs of the northern spotted owl or its habitat that reaches a wider audience can be of benefit to future conservation efforts. This function is being achieved with the retention of critical habitat in the reserve land-use allocations. As discussed in the benefits of exclusion, however, this is is not the case for the BLM Harvest Land Base lands.
There are appreciable benefits that will be realized by excluding Harvest Land Base areas from critical habitat. Executive Order 12866 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. Excluding Harvest Land Base lands from the northern spotted owl critical habitat designation reduces the burden of additional section 7 consultation beyond any requirements to consult on effects to the subspecies for these lands that serve primarily to meet BLM's timber sale volume objectives (see our response to
In addition, a benefit of exclusion of these lands is that it signals our support for the BLM's consideration of the conservation needs of the northern spotted owl in its resource management planning efforts. By incorporating and addressing those needs at the planning level, including engaging with the Service to help ensure a productive and robust network of reserves for the northern spotted owl, the BLM was able to develop RMPs and land-use allocations that also provide for timber production consistent with the conservation of the subspecies. This allows the Service to exclude areas to lessen regulatory burdens while conserving the northern spotted owl.
The biological and regulatory benefits of including the BLM Harvest Land Base in critical habitat are minimal given the management objective for this land-use allocation, which is to provide a sustained yield of timber. As we determined in our section 7 consultation with BLM regarding the RMPs, such management when considered with the other elements of habitat management in the RMPs provide for the conservation of the owl. Although these lands provide some short-term conservation value, we already determined that timber harvest of these areas will not result in the destruction or adverse modification of critical habitat as that term is defined in our implementing regulations under the Act. We have also conducted numerous site-specific consultations with the BLM regarding the effects of projects on designated critical habitat since the 2016 RMPs went into effect, and we have not found any actions that would destroy or adversely modify critical habitat.
Section 7 consultations to address adverse modification of critical habitat for activities within the Harvest Land Base going forward would provide no incremental conservation benefit over the conservation already provided for in the BLM RMPs. Consultations to address effects to designated critical habitat in the Harvest Land Base would not be an efficient use of limited consultation and administrative resources that could be better utilized to address other forest-related issues, such as consultations on critical habitat for forest treatments in Late-Successional Reserve that improve the quality of northern spotted owl nesting, roosting, and foraging habitat or reduce susceptibility to disturbances, such as wildfire. Informational benefits of including the BLM Harvest Land Base in critical habitat is minimal, and retaining
In contrast, the benefits derived from excluding the Harvest Land Base outweigh the minimal benefit of including these lands in the designation. Excluding these areas clarifies the distinction between the management direction for reserves versus the Harvest Land Base. Additionally, excluding the Harvest Land Base reduces the unnecessary regulatory burden of additional section 7 analysis that will provide no additional conservation beyond what is already provided in the BLM RMPs and section 7 consultations for the owl under the “jeopardy” prong and may redirect limited resources towards section 7 consultations on actions that would improve critical habitat in the Late-Successional Reserve. Thus, the Secretary has determined that the benefits of excluding the BLM Harvest Land Base described in the 2016 BLM RMPs from the designation of critical habitat for the northern spotted owl outweigh the benefit of including these areas in critical habitat.
We find that excluding the Harvest Land Base acres from the critical habitat designation, as finalized in this document, will have only a minor impact on the long-term conservation of the northern spotted owl and its habitat assuming that the conservation measures in the BLM RMPs are implemented as planned. Our 2016 Biological Opinion on the BLM RMPs found that the management actions anticipated under the RMPs, including harvest anticipated in the designated critical habitat in the Harvest Land Base, would not jeopardize the subspecies or destroy or adversely modify critical habitat (FWS 2016, pp. 700-703). Additionally, the Harvest Land Base lands represent only a small portion (less than 2 percent) of the overall critical habitat designation and represent only 19 percent of the land base managed by the BLM under the 2016 RMPs, with the remaining lands largely managed as reserves that provide demographic support of northern spotted owls. Therefore, and when considering that the remaining 98 percent of designated critical habitat is being retained on the landscape, we find that these exclusions will not result in extinction of the subspecies.
The January Exclusions Rule determined that the benefits of exclusion of all O&C lands and NWFP matrix lands from the critical habitat designation outweighed the benefits of inclusion. We have reconsidered the benefits of inclusion and exclusion and the weighing of these benefits in this rule. As stated above, the Secretary has very broad discretion under the second sentence of section 4(b)(2) on how to weigh the impacts of a critical habitat designation.
The O&C lands we address here are those O&C lands within the designation, about 1.2 million acres (485,623 hectares), that are located on lands managed by the BLM outside the BLM's Harvest Land Base land-use allocation as determined in the 2016 RMPs, as well as O&C lands managed by the USFS. Collectively, these lands (all in Oregon) comprise other land-use allocations, the majority (77 percent) of which are Late-Successional Reserve and Riparian Reserve, and occur on lands managed by both the BLM (about 970,723 acres (392,837 hectares)) and USFS (about 237,561 acres (96,137 hectares)). The USFS matrix lands altogether (in three States) included in the 2012 critical habitat designation total about 2.1 million acres and (849,840 hectares) are managed by the USFS under the NWFP generally for timber harvest. The USFS manages some lands within the designated critical habitat that overlap,
Since the mid-1970s, scientists and land managers have recognized the importance of forests located on O&C lands to the conservation of the northern spotted owl and have attempted to reconcile this conservation need with other land uses (Thomas
Although we work closely with the USFS to incorporate northern spotted owl conservation considerations into the USFS's ongoing land management actions through the section 7 consultation process, the USFS has not yet revised its forest plans and applied the recommendations of the 2011 Revised Recovery Plan nor expressly taken into consideration the 2012 critical habitat designation into these plans as has the BLM with their 2016 RMPs. The USFS has, however, initiated efforts to update the individual forest plans in the range of the northern spotted owl and is expected to complete this process in coming years. We will continue to work closely with the USFS to address the conservation needs of the northern spotted owl as the agency updates its various forest plans.
As discussed above, the primary effect of designating any particular area as critical habitat is the requirement for Federal agencies to consult with us under section 7 of the Act to ensure actions they carry out, authorize, or fund do not destroy or adversely modify designated critical habitat. Absent critical habitat designation, Federal agencies remain obligated under section 7 of the Act to consult with us on actions that may affect a federally listed species to ensure such actions do not jeopardize the species' continued existence. The January Exclusions Rule stated that the benefits of including the O&C lands and matrix lands are small because agencies would still be required to ensure that discretionary actions they fund, authorize, or carry out would not jeopardize the continued existence of the subspecies, regardless of whether those lands are designated as critical habitat. Upon reconsideration, we find that the section 7 consultations on critical habitat provide significant benefits as described below.
The critical habitat designation benefits the northern spotted owl as a rangewide conservation strategy and network that connects large blocks of habitat that are able to support multiple clusters of northern spotted owls. Both the O&C lands and USFS lands included in the designation provide connectivity and habitat areas in a spatial configuration that is essential to the conservation of the northern spotted owl. The O&C lands, for example, encompass 37 percent of the lands that were covered under the NWFP in Oregon and provide important habitat for reproduction, connectivity, and survival in the Coast Range and portions of the Klamath Basin; they provide connectivity through the Coast Range; and they provide connectivity between the Coast Range and western Cascades (Thomas
The critical habitat designation also identifies areas on the landscape that may require special management considerations or protection. These considerations are of even more importance given the statutory purpose of the O&C lands and the management direction for USFS matrix lands that focus primarily on commercial timber harvest (see
Conserving extant, high-quality habitat and addressing the threat from barred owls are key components of the special management considerations in our 2012 critical habitat rule as well as our biological opinion on the BLM's 2016 RMPs. Because the barred owl is present throughout the range of the northern spotted owl, special management considerations or protections may be required in all or many of the critical habitat units and subunits to ensure the northern spotted owl has sufficient habitat available to withstand competitive pressure from the barred owl (Dugger
Additionally, scientific peer reviewers of the 2011 Revised Recovery Plan for the Northern Spotted Owl (FWS 2011, entire) and Forsman
The types of management or protections that may be required to achieve these goals and maintain the physical or biological features essential to the conservation of the owl in occupied areas vary across the range of the subspecies. Some areas of northern spotted owl habitat, particularly in wetter forest types, are unlikely to be enhanced by active management activities, but instead need protection of the essential features; whereas other forest areas would likely benefit from more proactive forestry management. For example, in drier, more fire-prone regions of the owl's range, habitat conditions will likely be more dynamic, and more active management may be required to reduce the risk to the essential physical or biological features from fire, insects, disease, and climate change, as well as to promote regeneration following disturbance. The designation of these areas as critical habitat benefits the subspecies by ensuring that the special management considerations identified in the 2012 critical habitat rule are considered in the design and implementation of timber harvest projects in these areas.
The additional analysis required for critical habitat in a section 7 consultation requires action agencies to evaluate the effects of their actions on the critical habitat components that support the life history of the northern spotted owl regardless of whether the area is currently occupied by northern spotted owls; these are identified in the critical habitat rule as the physical and biological features (or primary constituent elements) that provide for nesting, roosting, foraging, and dispersal. In our consultations, the Service evaluates how those actions affect the conservation value of the critical habitat subunit to provide those features, and the analysis is then scaled up to evaluate those effects at the
We previously concluded in a Biological Opinion that the BLM's 2016 RMPs provide adequate contributions for the recovery of the spotted owl, and thus the exclusion of the Harvest Land Base lands from critical habitat and some harvest of these lands is likewise consistent with recovery. In reconciling the sometimes conflicting goals of spotted owl recovery with providing a reliable timber harvest from Federal lands, we worked with BLM in their 2016 RMPs to greatly minimize impacts to spotted owls. We conclude that the relatively small amount of impact to spotted owls from timber harvest on these BLM lands is offset by the increase in conservation of extant forest on BLM lands, the recruitment of improved habitat in the future on those lands, and the BLM's commitment to help manage barred owls.
In contrast, we do not yet have an updated programmatic Biological Opinion on USFS land management plans that addresses critical habitat for the northern spotted owl, although the USFS completes section 7 consultation with us at the project level on actions that affect critical habitat for the subspecies. To date, our review in section 7 consultations has found all proposed timber harvest under the NWFP on National Forest System lands in critical habitat to: (1) Be compatible with northern spotted owl conservation, and (2) not destroy or adversely modify critical habitat. These consultations on critical habitat provide a benefit to the northern spotted owl in that they provide an opportunity for the Service to review projects that will occur within critical habitat to ensure the function of the network will remain intact. We conclude that review of projects proposed in critical habitat on USFS matrix lands and O&C lands through the ongoing section 7 consultation processes under current land management plans continues to be an appropriate way to evaluate effects of USFS and BLM actions on critical habitat function and is an important benefit of including these lands in the critical habitat designation.
Another benefit of including lands in a critical habitat designation is that it generally serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. Identifying areas of high conservation value for the northern spotted owl can help focus and promote conservation efforts by other parties. Any additional information about the needs of the northern spotted owl or its habitat that reaches a wider audience can be of benefit to future conservation efforts. There is a benefit to communicating to the public and land managers that despite the O&C lands and matrix lands designations, the habitat areas found on these lands are essential to the conservation of the northern spotted owl.
We work closely with both the BLM and USFS in our coordinated section 7 consultation processes, and have a keen understanding of the agencies' mission and mandates. Our local biologists meet regularly to discuss upcoming and ongoing Federal projects and their effects to both the subspecies and its critical habitat, and to address any concerns about the section 7 consultation process. Additionally, we meet regularly with local and regional forest managers with both agencies. This process and partnership, established under the NWFP, has been effective for many years. We conclude that this collaborative approach, which includes reviewing projects and discussing how they affect the physical and biological features of critical habitat for the northern spotted owl, is a benefit of including these lands in the critical habitat designation.
There would be benefits realized by excluding O&C lands and USFS-managed matrix lands from critical habitat. Executive Order 12866 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. Excluding O&C lands and USFS-managed matrix lands from the northern spotted owl critical habitat designation would reduce the burden of additional section 7 consultation beyond any requirements to consult on effects to the subspecies for these lands (see our response to
Upon reconsideration, however, we find greater value in continuing to consult programmatically and at the project level under section 7 on critical habitat on O&C lands outside of those allocated by BLM to the Harvest Land Base, and on USFS-managed matrix lands. The benefits derived in these section 7 consultations to address effects to critical habitat ensure special management considerations are taken into account when designing and implementing landscape-scale management programs and subsequent timber harvest projects within critical habitat. The consultations allow the Service to evaluate the effects on the functionality of the critical habitat network, and ensure that functionality is not significantly impaired. Since the implementation of the 2016 RMPs, we have the benefit of several years of experience in section 7 consultations with the BLM regarding the effect of proposed actions on the O&C lands. We find that focusing our consultation and administrative capacity on section 7 consultations in the O&C lands outside of the BLM's Harvest Land Base lands is a priority given that the majority of this area is designated as Late-Successional Reserve and Riparian Reserve that contribute essential habitat for the northern spotted owl. Likewise, we find that focusing our resources on consultations in the USFS-managed matrix lands is also a priority given that programmatic consultation has not occurred for critical habitat on these lands.
Additionally, as stated above, the O&C lands outside of the BLM Harvest Land Base allocation, and USFS-managed matrix lands included in the critical habitat designation, provide areas of higher-quality habitat that owls prefer for nesting, roosting, and foraging behavior and lower-quality habitat to provide for dispersal for northern spotted owls. Excluding them as designated critical habitat, which suggests that they have a conservation value that is less than that of the reserve land-use allocation lands, may send a confusing message to the public and local land managers. Therefore, the benefit of excluding the O&C lands and
Based on our FEA (IEc 2012), we found that the most potential for economic impacts from the critical habitat designation would occur in relation to “unoccupied matrix lands” (at the time of the 2012 designation, BLM's Harvest Land Base lands were also considered matrix lands under the NWFP), which is where the difference between habitat being designated as critical, or not, would likely make the most difference. “Unoccupied matrix lands” in the FEA means areas of forested habitat (generally of less high quality relative to northern spotted owl needs) that at the time of the proposed project being consulted on under section 7 would not have resident northern spotted owls.
In the absence of a critical habitat designation, the Federal agency would have to first evaluate whether or not the proposed habitat modification would have an effect on northern spotted owls. Generally speaking, if there are no resident owls present and the habitat is not of particularly high quality nor designated as critical, Federal actions that would modify that habitat are less likely to create an adverse effect on the owl at an individual, let alone species level. And, in some cases, especially if the habitat to be modified is of marginal quality for the owl, the Federal agency may determine there is no effect on the species at all, in which case no section 7 consultation with the Service is required. If, on the other hand, the habitat being modified by the Federal action is designated as critical habitat, the current presence or absence of owls in the area is less relevant because the effect being analyzed is to that habitat, and the effect of the modification on the conservation value of the habitat for the species has to be considered. Thus, the critical habitat designation could require the Federal agency to undertake consultation with the Service and be precluded from adverse modification of the designated critical habitat, in an area where, absent that designation, the Federal agency might not have to consult at all because of the absence of effects to the species.
However, the FEA of the 2012 critical habitat designation for the northern spotted owl found the incremental effects of the designation to be relatively small due to the extensive conservation measures already in place for the subspecies because of its listed status under the Act and because of the measures provided under the NWFP (USFS and BLM 1994) and other conservation programs (IEc 2012, pp. 4-32, 4-37). The incremental effects included: (1) An increased workload for action agencies and the Service to conduct reinitiated section 7 consultations for ongoing actions in newly designated critical habitat (areas proposed for designation that were not already included within the extant designation); (2) the cost to action agencies of including an analysis of the effects to critical habitat for new projects occurring in occupied areas of designated critical habitat; and (3) potential project alterations in areas where owls are not currently present within designated critical habitat.
The FEA (IEc 2012) evaluated three scenarios to capture the full range of potential economic impacts of the designation. The first scenario contemplates that minimal or no changes to current timber management practices will occur, thus the incremental costs of the designation would be predominantly administrative. The potential additional administrative costs due to critical habitat designation on Federal lands range from $185,000 to $316,000 on an annualized basis for timber harvest. The second scenario posits that Federal agencies may choose to implement management practices that yield an increase in timber harvest relative to the baseline (current realized levels of timber harvest). For this scenario, baseline harvest projections were scaled upward by 10 percent, resulting in a positive impact on Federal lands ranging from $893,000 to $2,870,000 on an annualized basis for timber harvest. The third scenario considers that action agencies may choose to be more restrictive in response to critical habitat designation, resulting in a decline in harvest volumes relative to the baseline. To illustrate the potential for this effect, baseline harvest projections were scaled downward by 20 percent, resulting in a negative impact on timber harvest on Federal lands ranging from $2,650,000 to $6,480,000 on an annualized basis.
The USFS and BLM suggested certain alterations to the baseline timber harvest projections, based on differing assumptions regarding northern spotted owl occupancy in matrix lands and projected levels of timber harvest relative to historical yields. The FEA presents the results of a sensitivity analysis considering these alternative assumptions, which widen the range of annualized potential impacts to Federal timber harvest relative to the scenarios described above (IEC 2012b, pp. 4-37 to 4-39). This sensitivity analysis contemplated a situation in which 26.6 percent of northern spotted owl habitat on BLM matrix lands is unoccupied, and a 20 percent increase in baseline timber harvest in USFS Region 6 relative to historical yields. The range of incremental impacts under these alternative assumptions widens to a potential annualized increase of $700,000 under Scenario 2, and an annualized decrease of $1.4 million under Scenario 3, relative to the results reported above.
The January Exclusions Rule states that, recognizing the expertise of locally elected governments in areas relating to economic stability, exclusion of the O&C and matrix lands would benefit local counties and communities by supplying jobs and county revenues for schools and roads, and protecting the local tax base. In our reconsideration of that rule, we agree that economic benefits to the counties may ultimately accrue if O&C lands and matrix lands were excluded from the critical habitat designation because there would be a potential increase in timber harvest in some areas where, but for the critical habitat designation, the habitat modification would not be precluded via the Act otherwise. However, our 2012 FEA identified a range of potential outcomes due to the designation, including positive and negative effects. The analysis identified those counties that may be more sensitive to future changes in timber harvests, industry employment, and Federal land payments. Potential timber harvest changes related to critical habitat designation, whether positive, negative, or neutral, are one potential aspect of this sensitivity. The counties identified as relatively more sensitive to future changes in timber harvests, employment, and payments were Del Norte and Trinity Counties, California; Douglas and Klamath Counties, Oregon; and Skamania County, Washington. With regard to jobs, increases or decreases in timber harvests from Federal or private lands could result in positive or negative changes in jobs, respectively. The FEA notes that many factors affect timber industry employment (IEc 2012, Chapter 6). The scope of our analysis was limited to the incremental effects of critical habitat within the area proposed for designation by the northern spotted owl. The FEA did not consider potential changes in timber activities outside the proposed critical habitat designation, and did not evaluate the potential effects related to the timber industry as a whole.
We also considered information concerning economic impacts submitted by commenters, including AFRC and several counties, in the Brattle Report and Brattle supplement. See our responses to
The January Exclusions Rule stated that making more lands available for timber harvest could lead to longer cycles between harvests or to harvests designed to benefit the northern spotted owl and reduce the risk of catastrophic wildfire, and that northern spotted owls can use second-growth timber that leaves a few snags or old trees on the harvested land. Upon reconsideration, we find there is much uncertainty about the potential that harvest cycles would be extended were the O&C lands and USFS matrix lands excluded. Rotation ages of federally managed lands are determined by the BLM and USFS considering a wide range of information and responsibilities, not just related to the northern spotted owl, or even the Act. In addition, the assumption in the January Exclusions Rule that excluding the O&C lands and USFS matrix lands would improve the management of Federal forested lands to reduce wildfire risks rests on an incorrect assumption that the critical habitat designation generally precludes habitat management to reduce wildlife risk. As stated throughout the 2012 critical habitat rule, active management of forests is encouraged, where appropriate, to reduce the risk of catastrophic wildfire.
We agree that while northern spotted owls may use second-growth forests, this is not their preferred habitat for meeting all of their life history needs. Their use of these areas is dependent on the age, diversity, and condition of those forests as well as on their proximity to large blocks of habitat that provide for reproduction and population growth. Scientific peer reviewers of the 2011 Revised Recovery Plan for the Northern Spotted Owl (FWS 2011, entire) and Forsman
When weighing the benefits of inclusion and the benefits of exclusion of areas, we analyze and give weight to impacts and benefits consistent with expert or firsthand information in areas outside the scope of the Service's expertise unless we have knowledge or material evidence that rebuts that information. Impacts outside the scope of the Service's expertise include, but are not limited to, nonbiological impacts identified by federally recognized Indian Tribes; State or local governments; and permittees, lessees, or contractor applicants for a permit, lease, or contract on Federal lands. We also analyze and give weight to economic or other relevant impacts relative to the conservation value of the area being considered. We give weight to those benefits based on the Service's expertise.
We considered economic information submitted from commenters in the Brattle Report and supplement; however, the 2012 FEA (IEc 2012) and subsequent review of the report and supplement by IEc rebuts the information in those reports (IEc 2020, 2021). We acknowledge there is uncertainty over whether economic impacts will occur and to what extent, as well as uncertainty over whether exclusion of the O&C lands and matrix lands would result in economic benefits to the counties and communities where critical habitat is designated. We also acknowledge that the economic impacts, depending on the analysis and assumptions used, are not insignificant. However, even assuming the high end of the economic impacts identified in our economic analysis, or the higher economic impacts suggested by some commenters, such as AFRC and counties, based on the Brattle Report and supplement, ultimately we give greater weight to the conservation value of the O&C lands and USFS matrix lands than to potential economic benefits of excluding these lands, for the following reasons.
First, these areas are of significant conservation value to the spotted owl given the geographical location of the O&C lands and USFS matrix lands and the essential habitat they provide for the northern spotted owl. Our evaluation of the O&C lands and matrix lands in our 2012 critical habitat rule, and that of peer reviewers who reviewed the rule, demonstrates their importance to the conservation of the northern spotted owl. Additionally, our evaluation of a habitat network with reduced areas of high-value habitat on O&C lands and USFS matrix lands indicated a significant increase in extinction risk to the subspecies.
Second, our evaluation of the best available information on the status of the subspecies resulted in our recent finding that the northern spotted owl's status has declined such that we would be warranted in concluding that is now an “endangered” species under the Act, and not just “threatened,”
Third, subsequent to this “warranted but precluded” finding, the most recent demographic meta-analysis (Franklin
Fourth, the requirement for the USFS and BLM to consult with the Service concerning proposed impacts to critical habitat in the O&C lands outside of the BLM's Harvest Land Base and on the USFS matrix lands provides for meaningful coordination between the Service and the agencies regarding actions they are proposing and the needs of the northern spotted owl, providing a conservation benefit to owl recovery in Oregon, California, and Washington. The benefits derived in these section 7 consultations ensure special management considerations are taken into account when designing and implementing timber harvest projects within critical habitat and provide an opportunity to evaluate the effects those projects have on the functionality of the critical habitat network given the nature of projects that are likely to occur in these areas.
Fifth, designation of these areas as critical habitat clearly and unambiguously communicates to the public their disproportionate conservation value to spotted owl recovery, while excluding them from critical habitat would serve to confuse the public about their importance.
In sum, we find that the benefits of retaining as critical habitat the areas of O&C lands (outside of BLM's Harvest Land Base) and the currently designated USFS matrix lands outweigh the benefits of excluding these areas from critical habitat.
Under section 4(b)(2) of the Act, the Secretary cannot exclude areas from critical habitat if she finds, “based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” We find, contrary to the January Exclusions Rule, that even were we to conclude that the benefits of exclusion of the O&C Act lands and the USFS matrix lands outweighed the benefit of their inclusion, their exclusion would result in the extinction of the northern spotted owl, and so such exclusion is prohibited under the Endangered Species Act. See also our analysis in Withdrawal of the January Exclusions Rule above.
There are large areas of important high-quality northern spotted owl habitat located on O&C lands and USFS matrix lands that were designated as critical habitat in 2012. Lower-quality habitat also occurs within these lands that provide for connectivity between areas of higher-quality habitat and nesting and roosting when higher-quality habitat is not available in a particular location. The 2012 critical habitat designation included northern spotted owl habitat in reserve land-use allocations, O&C lands, and the matrix that we found essential for the conservation of the subspecies based on our modeling results, expert biological opinion, and peer review. We determined that we cannot attain recovery of the northern spotted owl without conserving the habitat on these lands and that excluding them significantly increased the risk of extinction. Peer reviewers of both the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and our proposed rule to revise critical habitat in 2012 supported this finding.
The January Exclusions Rule stated that, because competition with barred owls is the largest negative contributing factor to the decline of northern spotted owls, barred owl management must occur in order to protect the northern spotted owl from extinction. Upon reconsideration, we agree that barred owl management is necessary to prevent extinction of the northern spotted owl but also find that a reduction in habitat conservation (through exclusions from designated critical habitat) at the scale of all O&C lands and USFS matrix lands, in concert with the impacts from the barred owl, will result in the extinction of the northern spotted owl. As discussed in our recent 12-month finding and supporting documentation, the subspecies is in precipitous decline and warrants reclassification as endangered (85 FR 81144, December 15, 2020)—that is, the subspecies is in danger of extinction throughout all or a significant portion of its range. The northern spotted owl has experienced rapid population declines and potential extirpation in Washington and parts of Oregon, is functionally extirpated from British Columbia, and continues to exhibit similar declines in other parts of the range. Northern spotted owls are declining at a rate of 5.3 percent across their range, and populations in Oregon and Washington have declined by over 50 percent, with some declining by more than 75 percent, since 1995 (Franklin
The January Exclusions Rule stated that, although 3.4 million acres (1.4 million hectares) were excluded in that rule, the conservation provided to northern spotted owls in national parks and designated wilderness areas would ensure that the subspecies would not become extinct. See our reconsideration of the conservation value provided by these lands in our response to
The January Exclusions Rule further stated that section 7 consultations on the subspecies would ensure the exclusion of the lands would not result in extinction of the northern spotted owl. As we discussed previously, section 7 consultations regarding whether or not a Federal action that adversely affects the species will ultimately jeopardize the continued existence of the species is an important tool for protecting a species even in absence of a critical habitat designation. Upon further review, however, that protection against “jeopardy” is not a complete stand-in for an analysis of effects to important habitat necessary for the subspecies, particularly when considering the difference in scale between the January Exclusions Rule and what we exclude in this final rule.
In this final rule, we are excluding about two percent of the designated critical habitat based on a programmatic consultation that considered the long-term effects of removal of that habitat by timber harvest and found it would not adversely modify the critical habitat, nor jeopardize the subspecies. We have since then conducted a number of evaluations in consultation on site-specific projects removing habitat in the Harvest Land Base and have again concluded, based on the best scientific information, that the actions will not result in the adverse modification of the value of the critical habitat to the subspecies nor result in jeopardy to the subspecies. These together give us confidence in the appropriateness of the exclusions we finalize today.
The January Exclusions Rule, on the other hand, would have excluded nearly 36 percent of the current designated critical habitat, without benefit of a programmatic approach by the relevant Federal land-managing agencies and a section 7 consultation to confirm the effects would not adversely modify the critical habitat for the subspecies nor would jeopardize it. Neither do we have the experience of several years of consultations at a project-specific level to consider the effects of removal of this habitat from the landscape and affirm it would not jeopardize the subspecies. To the contrary, based on the information we have, we conclude that such exclusions would result in the extinction of the owl. In such an instance, reliance on the section 7 “jeopardy” standard in future consultations alone is not a sufficient basis to affirm the benefits of exclusion.
The NWFP and the BLM RMPs provide adequate landscape-scale conservation for the northern spotted owl while allowing for relatively small areas of critical habitat to be harvested over time. Exclusion of all the O&C lands (including currently allocated to reserves) and all the USFS matrix lands could enable subsequent land management plan changes that would support habitat removal in areas that are essential to the conservation of the northern spotted owl. Exclusion of these O&C lands and USFS matrix lands
We also evaluated whether additional exclusions from the critical habitat designation under section 4(b)(2) of the Act should be considered on State lands. In our December 4, 2012, critical habitat designation (77 FR 71876), we excluded State lands in Washington and California that were covered by HCPs and other conservation plans. In Oregon, State agencies are currently working on HCPs that will address State forest lands in western Oregon, including the Elliott State Forest (managed by the Oregon Department of State Lands) and other State forest lands in western Oregon (managed by the Oregon Department of Forestry).
Habitat conservation plans in support of applications for incidental take permits under section 10(a)(1)(B) of the Act must be consistent with the long-term recovery needs of the species. When we undertake a discretionary section 4(b)(2) exclusion analysis, we consider areas covered by an HCP that have been authorized by a permit under section 10 of the Act, and generally exclude such areas from a designation of critical habitat if three conditions are met: (1) Whether the permittee is properly implementing the conservation plan or agreement;; (2) whether the species for which critical habitat is being designated is a covered species in the conservation plan or agreement; and (3) whether the conservation plan or agreement 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.
The proposed State forest HCPs and any section 10 permitting decisions by the Service will not be completed prior to the publication of this document; thus, we are not able to assess all of the above criteria. As a result, we are not excluding additional State lands from the critical habitat designation for the northern spotted owl.
In publishing final rules to carry out the purposes of the Act, we include a description of any conservation measures available under the rule. As this rule is a revision to critical habitat excluding certain areas from that designation, there are no particular conservation measures specifically available under this rule. Rather, the conservation measures already in place and available to the entities managing the excluded lands (the BLM, the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, and the Cow Creek Band of Umpqua Tribe of Indians) remain available and unaffected by this rule.
In publishing final rules to revise critical habitat, we are, to the maximum extent practicable, required to include a brief description and evaluation of those activities (whether public or private) that might occur in the area, and which, in the opinion of the Secretary, may adversely modify such habitat or be affected by such designation. As this revision to critical habitat is exclusions from critical habitat, the exclusions will, by definition, eliminate the requirement for consideration of adverse modification of the excluded habitat. Our discussion in the 2012 critical habitat rule (77 FR 71876; pp. 71938-71944) still adequately addresses actions that may adversely modify critical habitat or be affected by the areas of critical habitat that remain designated.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has identified this rulemaking action as not 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 whether 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 as understood in the light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the
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. In our FEA for the December 4, 2012, revised critical habitat designation for the northern spotted owl (77 FR 71876), we did not find that the critical habitat designation would significantly affect energy supplies, distribution, or use. Any administrative costs due to the designation of critical habitat would be reduced because we are excluding additional lands from the designation in this final rule. 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 final rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “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 revised designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule would significantly or uniquely affect small governments because we are only excluding areas from the northern spotted owl's critical habitat designation; we are not designating additional lands as critical habitat for the subspecies. Therefore, 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 northern spotted owl 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 for the revised designation of critical habitat for northern spotted owl, and it concludes that, if adopted, 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 revised critical habitat designation with, appropriate State resource agencies. 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, this 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
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation with the Federal agency 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. Further, in this document, we are excluding areas from the northern spotted owl's critical habitat designation; we are not designating additional lands as critical habitat for the subspecies.
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 revising critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the northern spotted owl, the December 4, 2012, final rule (77 FR 71876) identifies the elements of physical or biological features essential to the conservation of the subspecies, and we are not proposing any changes to those elements in this document. The areas we are excluding from the designated critical habitat are described in this rule and the maps and coordinates or plot points or both of the subject areas are included in the administrative record and are available at
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 (see
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 Indian lands are not subject to the same controls as Federal public lands, to remain sensitive to Tribal culture, and to make information available to Tribes. To fulfill our responsibility under Secretarial Order 3206, we have consulted with the Cow Creek Band of Umpqua Tribe of Indians and the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, which both manage Indian land within the areas designated as critical habitat for the northern spotted owl.
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 Oregon Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, for the reasons discussed above in the preamble, we hereby 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.
(b)
(7)
(9) Unit 1: North Coast Ranges and Olympic Peninsula, Oregon and Washington. Maps of Unit 1: North Coast Ranges and Olympic Peninsula, Oregon and Washington, follow:
(10) Unit 2: Oregon Coast Ranges, Oregon. Map of Unit 2, Oregon Coast Ranges, Oregon, follows:
(14) Unit 6: West Cascades South, Oregon. Map of Unit 6, West Cascades South, Oregon, follows:
(16) Unit 8: East Cascades South, California and Oregon. Map of Unit 8, East Cascades South, California and Oregon, follows:
(17) Unit 9: Klamath West, Oregon and California. Map of Unit 9: Klamath West, Oregon and California, follows:
(18) Unit 10: Klamath East, California and Oregon. Map of Unit 10: Klamath East, California and Oregon, follows:
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the bracted twistflower (
We will accept comments received or postmarked on or before January 10, 2022. Comments submitted electronically using the Federal eRulemaking Portal (see
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512-490-0057. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act 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 protections; 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. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
(5) Information on regulations that are necessary and advisable to provide for the conservation of the bracted twistflower and that the Service can consider in developing a 4(d) rule for the species. In particular, information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether we should consider any additional exceptions from the prohibitions in the 4(d) rule.
(6) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;
(b) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) The amount and distribution of bracted twistflower habitat;
(b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species, should be included in the designation and why;
(c) Any additional areas occurring within the range of the species [
(d) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(e) What areas not occupied at the time of listing are essential for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are adequate for the conservation of the species;
(ii) Providing specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species.
(iii) Explaining whether or not unoccupied areas fall within the definition of “habitat” at 50 CFR 424.02 and why.
(8) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.
(10) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.
(11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. If you think we should exclude any additional areas, please provide credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion.
(12) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in
In 1975, the Smithsonian Institution presented a report to Congress describing over 3,000 vascular plants considered endangered, threatened, or extinct in the United States, including the bracted twistflower. The Service published a notice on July 1, 1975 (40 FR 27824), in which we announced that this report had been accepted as a petition under the terms of the Act, and that the taxa named in the report and notice were being reviewed for possible inclusion in the List of Endangered and Threatened Plants.
On December 15, 1980, we classified the bracted twistflower as a Category 2 candidate for listing (45 FR 82480). We defined Category 2 candidates as taxa for which information in the Service's possession indicated the probable appropriateness of listing as endangered or threatened, but for which sufficient information was not available to biologically support a proposed rule at the time. The species remained so designated in subsequent candidate notices of review (CNORs) (50 FR 39526, September 27, 1985; 55 FR 6184, February 21, 1990; 58 FR 51144, September 30, 1993). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the bracted twistflower was no longer a candidate species.
On October 26, 2011, we added bracted twistflower to the candidate list (76 FR 66370). Candidates are those fish, wildlife, and plants for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which preparation and publication of a proposal is precluded by higher priority listing actions. Bracted twistflower was included in all subsequent annual CNORs with a listing priority number of 8, which reflects a species with threats that are ongoing and imminent (77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015; 81 FR 87246, December 2, 2016; 84 FR 54732, October 10, 2019; 85 FR 73164, November 16, 2020).
On August 5, 2014, we received a petition to list the bracted twistflower. Because the species was already on our candidate list, we took no additional action on the petition.
A species status assessment (SSA) team prepared an SSA report for the bracted twistflower. The SSA team was composed of Service biologists in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the
Bracted twistflower is an annual herbaceous plant in the mustard family (Brassicaceae) that occurs only along the southeastern edge of the Edwards Plateau of central Texas. There are currently 35 described species of
Bracted twistflower habitats occur near the boundary between the Edwards or Devils River limestone formations and the Glen Rose limestone formation. Individual plants commonly occur near or under a canopy of Ashe juniper (
The seeds germinate in response to fall and winter rainfall, forming basal rosettes, and the flower stalks emerge the following spring bearing showy, lavender-purple flowers. The seed capsules remain attached to the stalks during the summer as they mature and dehisce, releasing the seeds to be dispersed by gravity. The foliage withers as the fruits mature, and the plants die during the heat of summer. This species is primarily an outcrossing species; the leafcutter bee
Since 1989, populations of the bracted twistflower have been documented at 17 naturally occurring element occurrences (EOs) in five counties, as well as one experimental trial in Travis County (see Table 1, below). We have adopted the EO standard to maintain consistency with the Texas Parks and Wildlife Department's Natural Diversity Database (TXNDD) and because the EOs used in the TXNDD are practical approximations of populations, based on the best available scientific information. Each EO may consist of one to many Source Features, which are specific locations where one or more
Bracted twistflower is an annual plant, and the numbers of individuals that germinate at the Source Features of each EO vary widely from year to year in response to weather patterns or other stimuli. Thus, the numbers observed in any single year are not useful measures of population size because they do not reveal the numbers of live, dormant seeds that persist in the soil seed reserve. The SSA report (Service 2021, appendix A) describes the method we used to estimate the potential population sizes of EOs, which we define as the largest numbers of individuals that have been observed at each Source Feature of each EO. We then used aerial imagery to determine whether the habitat of any Source Features had been destroyed by construction of roads, buildings, or other disturbance, and we calculated the estimated remaining potential population at each EO. For a complete descriptions of the analysis used, see the SSA report. Table 1 lists the total potential populations of each EO and the proportions of each that were reported from Source Features that were destroyed, partially destroyed, or are still intact. In summary, within the naturally-occurring EOs, we determined that habitats and potential populations are completely intact at 11 EOs, partially destroyed at four EOs, and completely destroyed at two EOs. However, even where habitats are intact, populations may decline due to ungulate herbivory, juniper competition, or other factors. A thorough review of the taxonomy, life history, and ecology of the bracted twistflower is presented in the SSA report (Service 2021, entire).
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an endangered species as a species that is in danger of extinction throughout all or a significant portion of its range, and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range”. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and
We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.
However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.
The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as the Service can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, and other demographic factors.
The SSA report (Service 2021, entire) documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R2-ES-2021-0013 on
To assess bracted twistflower viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.
In this discussion, we review the biological condition of the species and its resources, and the factors that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. We analyze these factors both individually and cumulatively to determine the current condition of the species and project the future condition of the species under several plausible future scenarios.
Bracted twistflower habitat occurs on karstic, porous limestones near the boundary of the Devils River or Edwards formations and Glen Rose formations in central Texas. These juniper-oak woodlands and shrublands experience hot, often dry summers and mild winters with bimodal (spring and fall) precipitation patterns. Optimal microsites for the bracted twistflower have less than 50 percent cover of woody plant canopy with the most robust plants growing in full sun (Fowler 2010, pp. 10-12; Leonard 2010, pp. 30-32; Ramsey 2010, pp. 10-13, 20; Leonard and Van Auken 2013, pp. 276-285). However, in areas with dense populations of white-tailed deer and other herbivores, few individuals survive except where they are protected from herbivory by a cover of dense, spiny understory vegetation (McNeal 1989, p. 17; Damude and Poole 1990, pp. 29 -30; Poole
Bracted twistflower is an annual species sustained through its reserve of
Bracted twistflower reproduces primarily by outcrossing between individuals that are not closely related; self-pollination produces only small amounts of seeds. Fertilization requires that two or more sexually compatible individuals are located within the forage range of native bee pollinators. The longevity of seed viability has not been determined, although at least some seeds remain viable in the soil for at least 7 years (Service 2021, p. 12). The known pollinators of bracted twistflower are leafcutter bees (
Fall and winter rainfall stimulate bracted twistflower seed germination; successive rainfall events that allow soil moisture to persist may have greater effect than one or two heavy rains. In addition to rain, other factors appear to stimulate germination, such as the removal of competing vegetation, and possibly fire during a previous season.
Populations of bracted twistflower must be large enough to have a high probability of surviving a prescribed period of time. For example, Mace and Lande (1991, p. 151) propose that species or populations be classified as vulnerable when the probability of persisting 100 years is less than 90 percent. This metric of population resilience is called minimum viable population (MVP). We adapted the method published in Pavlik (1996, p. 137) to estimate an MVP for bracted twistflower of about 1,800 individuals. This estimate of MVP is based only on numbers of mature, flowering individuals because juveniles that die before they reproduce do not contribute to the effective population size or future genetic diversity.
Our assessment of the current species viability of bracted twistflower is based on its resiliency, redundancy, and representation. We ranked the current conditions of bracted twistflower EOs as high, medium, low, or extirpated based on the following characteristics: The proportion of potential populations where habitat is intact (described above); the population sizes and trends (if known) in remaining intact habitats; genetic diversity and inbreeding coefficients (if known); and the current levels of monitoring, vegetation management, and protection from development, herbivores, and recreational impacts on the remaining intact habitats. The current condition of each EO is based upon the cumulative effects of these factors.
Our review of the TXNDD EO records (TXNDD 2018) indicates that relatively large pulses of bracted twistflower plants emerge in specific areas (Source Features) during relatively few years, while during most years few or no plants emerge. This wide annual variation in germination makes it very difficult to determine the species' population sizes and demographic trends (Service 2021, pp. 22-23, appendix A). However, one indicator of the status of bracted twistflower populations is the condition of their habitats. We define potential population size as the maximum numbers observed in specific areas during “pulse” years, when optimal conditions stimulate the greatest amounts of seed germination, establishment, and survival to successful reproduction. Thus, our estimate of the species' status is based in part on the potential populations remaining in intact habitats. The potential total number of individuals at the 17 naturally occurring EOs observed since 1989 is 12,764 (not including 120 planted at the experimental population at EO 33). Since 1989, 14 percent of bracted twistflower habitat (a potential population of 1,780 plants) has been completely destroyed in portions of six EOs; 19 percent of bracted twistflower habitat (a potential population of 2,496 plants) has been partially destroyed in portions of five EOs; and 67 percent (a potential population of 8,488 plants) remains intact in portions of 15 naturally occurring EOs (note that each EO can have intact, partially destroyed, and destroyed portions, so the total is greater than the number of EOs). Nevertheless, this estimate reflects only the losses due to habitat development, and does not account for populations that may have declined due to excessive herbivory or juniper competition.
Only four of the remaining EOs have potential populations of at least 50 percent of the estimated MVP value of 1,800 individuals. These medium resilient populations are Barton Creek Greenbelt and Wilderness Park (EO 17) and Rancho Diana (EO 31), which are protected natural areas managed by the City of Austin and City of San Antonio, respectively; Laurel Canyon (EO 25) is protected from development and land use change through a City of San Antonio conservation easement; and landowners voluntarily conserve a portion of Medina Lake (EO 18). The City of Austin also protects Ullrich (EO 7) from development and land use change (Texas Parks and Wildlife Department 2018, p. 1), although the potential maximum population is about 27 percent of the estimated MVP level. Gus Fruh (EO 36) is small, but due to its proximity to EO 17 along Barton Creek, might be considered part of a Barton Creek metapopulation. Mt. Bonnell City Park (EO 9), Garner SP (EO 10), Eisenhower City Park (EO 23), Valburn/Bull Creek District Park (EO 35), and Falls Ranch (no EO number) are all currently far below the MVP level. Four EOs have been mostly lost to development: Cat Mountain (EO 2), East Medina (EO 8), Mt. Bonnell City Park, and Valburn/Bull Creek. Two EOs have been completely lost to development: Mesa (EO 21) and Rough Hollow (EO 32). No individuals have been seen in recent years at two additional EOs, Bright Leaf (EO 26) and Upper Long Canyon (EO 24), nor at the experimental population at Vireo Preserve (EO 33). In summary, none of the EOs of bracted twistflower have reached the MVP level in the last decade, most have low resiliency, many have gradually declined over the years that they have been monitored, and six EOs have been extirpated or very nearly extirpated.
Bracted twistflower currently possesses significant genetic diversity at the species level, but populations are genetically distinct and there is no gene
Representation areas are sectors of a species' geographic range where important constituents of its genetic and ecological diversity occur. The known EOs of bracted twistflower are clustered in three geographic areas separated from each other by 50 km (30 mi) or more. Slight differences in day length, solar elevation, temperature, and precipitation occur over the species' range from northeast to southwest. Austin has more moderate summer and winter temperatures, 40 percent fewer days of freezing weather, and 40 percent greater annual rainfall, compared to Uvalde County. These climate differences also create variation in the structure and composition of associated vegetation. Pepper (2010, pp. 4, 15) identified major, distinct clusters of genetic diversity in Medina County and in the Austin area . Based on this genetic data and the geographic clustering of populations, we identified three representation areas in the northeastern, central, and western portions of the species' range (Service 2021, Figure 9).
Two EOs are extirpated (EO 21 and EO 32), and five EOs have low condition ranks and negligible contributions to redundancy. The northeast representation area has six EOs with high or medium condition ranks, conferring an intermediate degree of population redundancy within this area. The central representation area also has intermediate redundancy, because it has four EOs with high- or medium- condition ranks. In the west representation area, only EO 10 has a medium condition rank, and no population pulses have been observed there in recent years. This representation area appears to have very low redundancy; however, few surveys have been conducted in that area, so undiscovered populations might still exist.
In summary, bracted twistflower has four EOs with medium resiliency and no highly resilient EOs. Two representation areas have intermediate redundancy. Genetic representation at the species level is adequate, but 40 to 50 percent of EOs had low genetic diversity and high inbreeding, and inbreeding also occurred in three larger populations. The species has lost all or parts of six EOs and one-third of its potential population size over the last 30 years.
A primary driver of the bracted twistflower's status is habitat loss due to urban and residential land development (McNeal 1989, p. 17; Damude and Poole 1990, p. 51; Zippin 1997, p. 229; Fowler 2010, p. 2; Pepper 2010, p. 5). A number of cities, including Austin, San Marcos, New Braunfels, and San Antonio, were established along the Balcones Escarpment due to the prevalence of springs. This area, known as the Interstate 35 corridor, is one of the fastest-growing urban complexes in the United States. Urban development reduces the redundancy and representation of the bracted twistflower and has consumed all or most of the habitat at six EOs of the bracted twistflower.
Habitat changes leading to lower sunlight intensity in the existing habitat are another threat to the bracted twistflower as growth and reproduction of the species, and thus resilience, increases with higher light intensity and duration (Fowler 2010, pp. 1-18; Leonard 2010, pp. 1-86; Ramsey 2010, pp. 1-35; Leonard and Van Auken 2013, pp. 276-285). Bracted twistflower habitats have likely experienced a decline in the frequency of wildfire, which has allowed Ashe juniper and other woody plant cover to increase within most bracted twistflower populations (Bray 1904, pp. 14-15, 22-23; Fonteyn
Severe herbivory by white-tailed deer and introduced ungulates is a significant factor affecting the status of bracted twistflower throughout the species' range, except where populations are protected from deer by fencing or through intensive herd management (McNeal 1989, p. 17; Damude and Poole 1990, pp. 52-53; Dieringer 1991, p. 341; Zippin 1997, pp. 39-197, 227; Leonard 2010, pp. 36-43; Fowler 2014, pp. 17, 19). Herbivory is exacerbated by the extremely high deer densities in the Edwards Plateau of Texas (Zippin 1997, p. 227).
Both permitted and unauthorized recreation affects the species' survival at several protected natural areas, as well as on private lands. Hiking and mountain bike trails have impacted the populations at Mt. Bonnell City Park, Barton Creek Preserve, Garner State Park, and Bull Creek Park through trampling of the herbaceous vegetation and severe soil erosion where trails cut directly through occupied habitat (McNeal 1989, p. 19; Fowler 2010, p. 2; Bracted Twistflower Working Group 2010, p. 3; Pepper 2010, pp. 5, 15, 17).
Small, isolated populations are less resilient and more vulnerable to catastrophic losses caused by random fluctuations in recruitment or variations in rainfall or other environmental factors (Service 2016, p. 20). Small populations are also less able to overwhelm herbivores to ensure replenishment of the soil seed reserve (Service 2021, p. 33). In addition to population size, it is likely that population density also influences population viability, because reproduction requires genetically compatible individuals to be clustered within the forage range of the native bee pollinators (Service 2021, p. 33). Small, reproductively isolated populations are also more susceptible to the loss of genetic diversity, genetic drift, and inbreeding (Barrett and Kohn 1991, pp. 3-30). This may reduce the ability of the species or population to resist pathogens and parasites, adapt to changing environmental conditions, or colonize new habitats. More than half of the EOs observed since 1989 are at risk due to the demographic consequences of small population sizes (significantly below the estimated MVP level of 1,800 individuals), and many of the remaining populations have very little genetic diversity and relatively high levels of inbreeding (Pepper 2010, pp. 13, 15). The species as a whole still possesses significant genetic diversity (Pepper 2010, pp. 4, 11, 15), but several of the core reservoirs of the species' genetic diversity occur on private lands and may be lost to development.
The SSA projects viability during two future periods, from 2030 to 2040 and from 2050 to 2074. We chose these time frames because they represent the likely minimum and maximum lengths of time that seeds could remain viable in the soil, and therefore the potential of declining EOs to recover from viable seeds in the soil seed reserve. Although we do not know the maximum length of time that bracted twistflower seeds can remain viable in the soil seed reserve, observations of the experimental population at Vireo Preserve reveal that at least some seeds are viable after seven
The projections of future viability also considered three different scenarios representing an improvement over current conditions, continuation of current trends, or deterioration beyond current conditions. These scenarios were based on seven components that influence this species' status and their cumulative effects on the species: The extent of conservation support, effects of regional development, survey results, documentation of the geographic range, effectiveness of habitat management, effectiveness of population management, and effects of climate changes. Table 2 summarizes the projected species viability during each of the two time frames and under each of the three scenarios. Under the “improvement” scenario, the number of EOs in high condition, currently 5, would increase to 10 by 2030-2040 and to 13 by 2050-2074 leading to an increase in species' resiliency. In this scenario species' redundancy and representation remain stable. Under the “continue” scenario, the number of extirpated EOs would increase to four by 2030-2040 and to 10 by 2050-2074 leading to a loss of redundancy. Both EOs in the West Representation Area would be extirpated by 2050-2074 leading to a reduction in species' representation. Conditions within 15 EOs would deteriorate under this scenario, leading to a reduction in species' resiliency. The “deterioration” scenario projects extirpation of 11 and 15 EOs during these periods, respectively, leading to a significant reduction in species redundancy and representation. By 2050-2074 all EOs in the West Representation area would be extirpated with only two remaining in the Northeast Representation Area and one in the Central Representation Area. Under this scenario, species resiliency declines across all sites. For more information, see the bracted twistflower SSA report (Service 2021, pp. 51-66). These scenarios should not be interpreted as mutually exclusive. The components of the scenarios will interact independently; future viability will likely result from a combination of conditions analyzed in these scenarios. For example, conservation support and habitat management could be better than expected by 2050, but climate changes and regional growth could have more severe impacts than expected.
We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.
Ten scientific investigations have been completed that contribute to our knowledge of the phenology, reproduction, habitats, ecology, population biology, and population genetics of bracted twistflower. The Bracted Twistflower Working Group, a consortium of federal, state, and local agencies, researchers, and conservation organizations, has met informally at least annually since 2000 and has worked actively to promote the conservation and recovery of this species. The Service, Texas Parks and Wildlife Department (TPWD), the City of Austin, Travis County, the Lower Colorado River Authority, and the Lady Bird Johnson Wildflower Center established a voluntary Memorandum of Agreement to protect, monitor, and restore bracted twistflower and its habitats on Balcones Canyonlands Preserve (BCP) tracts. Five extant EOs and one experimental population are protected through the agreement, including three of the five populations in a high current condition (Table 2). The City of San Antonio has actively protected and managed EOs at Eisenhower Park and Rancho Diana; the latter continues to be one of the largest remaining populations. The City of San Antonio and The Nature Conservancy own a conservation easement to protect 222 ha (549 ac) in Medina County for watershed conservation; this includes EO 25, which has one of the largest extant bracted twistflower populations. All or parts of 11 EOs are located on state or local conservation land.
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an “endangered species” or a “threatened species.” The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of endangered species or threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats and the cumulative effect of the threats under the section 4(a)(1) factors to the bracted twistflower.
Bracted twistflower occurs in three geographically separate representation areas, which experience differing regional climate and biotic factors. Although threats are currently acting on the bracted twistflower throughout its range, 11 EOs were found to have high or medium resiliency for their current condition, and 11 EOs (including one experimental population) occur on protected, state- or locally-owned conservation lands. Thus, after assessing the best available information, we conclude that the bracted twistflower is not currently in danger of extinction throughout all of its range. We therefore proceed with determining whether the bracted twistflower is likely to become endangered within the foreseeable future throughout all of its range.
For the purpose of this determination, the foreseeable future is 50 years, which corresponds to the climate projections used in the analysis. Under the “current trends continue” scenario, the number of extirpated EOs increases from two to 10. Under the “declining” scenario, 15 EOs will become extirpated, and the condition rank of the remaining three EOs will be low. Development, which results in the permanent loss of habitat, is the most significant threat to bracted twistflower, and this threat is expected to continue into the future. Habitats throughout the species' range have been degraded due to habitat modification and increased browsing pressure from white-tailed deer and introduced ungulates. Threats from habitat loss, habitat modification, increased herbivory, and loss of genetic diversity are cumulative and will likely result in further degradation without management intervention. There is no appreciable gene flow between populations (Pepper 2010, p. 11). Populations of bracted twistflower have declined and are expected to continue to decline into the future. Our analysis
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in
Following the court's holding in
The statutory difference between an endangered species and a threatened species is the time frame in which the species becomes in danger of extinction; an endangered species is in danger of extinction now while a threatened species is not in danger of extinction now but is likely to become so in the foreseeable future. Thus, we reviewed the best scientific and commercial data available regarding the time horizon for the threats that are driving the bracted twistflower to warrant listing as a threatened species throughout all of its range. We considered whether the threats are geographically concentrated in any portion of the species' range in a way that would accelerate the time horizon for the species' exposure or response to the threats. We examined the following threats: Habitat loss to development (Factor A); changes in fire frequency and the composition and structure of vegetation (Factor A); excessive herbivory by white-tailed deer and other ungulates (Factor C); and demographic and genetic consequences of small, isolated populations (Factor E), including cumulative effects.
All of the known threats are present throughout the bracted twistflower's range, but to different degrees in different areas. We identified the western portion of the species' range, consisting of two EOs in Uvalde County, and determined that there is a concentration of threats from browsing of white-tailed deer and other ungulates. These threats are not unique to this area, but are acting at greater intensity here (
Although some threats to the bracted twistflower are concentrated in Uvalde County, the best scientific and commercial data available does not indicate that the concentration of threats, or the species' responses to the concentration of threats, are likely to accelerate the time horizon in which the species becomes in danger of extinction in that portion of its range. As a result, the bracted twistflower is not in danger of extinction now within Uvalde County. Therefore, we determine, that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
Our review of the best scientific and commercial data available indicates that bracted twistflower meets the Act's definition of a threatened species. Therefore, we propose to list the bracted twistflower as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the bracted twistflower. Information on our grant programs that are available to aid species recovery can be found at:
Although the bracted twistflower is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, 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 the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Federal Highways Administration, U.S.D.A. Natural Resources Conservation Service, U.S. Army Corps of Engineers, Department of Defense-Joint Base San Antonio, and Federal Emergency Management Agency.
It is our policy, as published in the
Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency (see
The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see
Exercising this authority under section 4(d), we have developed a proposed rule that is designed to address the bracted twistflower's specific threats and conservation needs. Although the statute does not require us to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the bracted twistflower. As discussed above under Summary of Biological Status and Threats, the Service has concluded that the bracted twistflower is likely to
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
This obligation does not change in any way for a threatened species with a species-specific 4(d) rule. Actions that result in a determination by a Federal agency of “not likely to adversely affect” continue to require the Service's written concurrence and actions that are “likely to adversely affect” a species require formal consultation and the formulation of a biological opinion.
This proposed 4(d) rule would provide for the conservation of the bracted twistflower by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; certain acts related to removing, damaging, and destroying; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; and selling or offering for sale in interstate or foreign commerce.
As discussed above under Summary of Biological Status and Threats, habitat loss due to urban and residential land development (Factor A), increases in woody plant cover (Factor A), severe herbivory (Factor E), and small, isolated populations (Factor E) affect the status of the bracted twistflower. To protect the species from these threats, in addition to the protections that apply to Federal lands, the 4(d) rule would prohibit a person from removing, cutting, digging up, or damaging or destroying the species on non-Federal lands in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. As most populations of the bracted twistflower occur off Federal land, these protections in the 4(d) rule are key to its effectiveness. For example, any damage to the species on non-Federal land in violation of a Texas off-highway vehicle law would be prohibited by the 4(d) rule. Additionally, any damage incurred by the species due to criminal trespass on non-Federal lands would similarly violate the proposed 4(d) rule. As a whole, the proposed 4(d) rule would help in the efforts to recover the bracted twistflower by limiting specific actions that damage individual populations.
We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened plants under certain circumstances. Regulations governing permits for threatened plants are codified at 50 CFR 17.72, which states that “the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species.” That regulation also states, “The permit shall be governed by the provisions of this section unless a special rule applicable to the plant is provided in sections 17.73 to 17.78.” We interpret that second sentence to mean that permits for threatened species are governed by the provisions of section 17.72 unless a special rule, which we have defined to mean a species-specific 4(d) rule, provides otherwise. We recently promulgated revisions to section 17.71 providing that section 17.71 will no longer apply to plants listed as threatened in the future. We did not intend for those revisions to limit or alter the applicability of the permitting provisions in section 17.72, or to require that every species-specific 4(d) rule spell out any permitting provisions that apply to that species and species-specific 4(d) rule. To the contrary, we anticipate that permitting provisions would generally be similar or identical for most species, so applying the provisions of section 17.72 unless a species-specific 4(d) rule provides otherwise would likely avoid substantial duplication. Moreover, this interpretation brings section 17.72 in line with the comparable provision for wildlife at 50 CFR 17.32, in which the second sentence states, “Such permit shall be governed by the provisions of this section unless a special rule applicable to the wildlife, appearing in sections 17.40 to 17.48, of this part provides otherwise.” Under 50 CFR 17.12 with regard to threatened plants, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for botanical or horticultural exhibition, for educational purposes, or for other purposes consistent with the purposes and policy of the Act. Additional statutory exemptions from the prohibitions are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Services shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the bracted twistflower that may result in otherwise prohibited activities without additional authorization.
The Service recognizes the proposed 4(d) rule would allow beneficial and educational aspect of activities with seeds of cultivated plants, which generally enhance the propagation of the species, and therefore would satisfy permit requirements under the Act. The Service intends to monitor the interstate and foreign commerce and import and export of these specimens in a manner that will not inhibit such activities, providing the activities do not represent a threat to the survival of the species in the wild. In this regard, seeds of cultivated specimens would not be subject to the prohibitions above, provided that a statement that the seeds are of “cultivated origin” accompanies the seeds or their container.
Propagation is currently taking place for the bracted twistflower and will continue to be an important recovery tool. This will include collecting seeds from wild populations, following Center for Plant Conservation guidelines and the USFWS-NMFS 2000 Policy Regarding Controlled Propagation of Species Listed Under the Endangered Species Act (65 FR 56916), and propagating them for seed increase, population augmentation, introduction, and research related to the species' recovery.
Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the bracted twistflower. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service, where appropriate. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above).
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 to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also 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. The implementing regulations at 50 CFR 424.12(b)(2) further delineate unoccupied critical habitat by setting out three specific parameters: (1) When designating critical habitat, the Secretary will first evaluate areas occupied by the species; (2) the Secretary will only consider unoccupied areas to be essential where a critical
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.
As the regulatory definition of “habitat” reflects (50 CFR 424.02), habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of the species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;
(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.
As discussed earlier in this document, there is currently no imminent threat of collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA report (Service 2021, entire) and proposed listing determination for the bracted twistflower, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the bracted twistflower and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because the Secretary has not identified other circumstances for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the bracted twistflower.
Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the bracted twistflower is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”
When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the bracted twistflower.
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
In considering whether features are essential to the conservation of the species, we 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 essential to the conservation of the bracted twistflower from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report available on
The prevalent Cretaceous geological formations in the Edwards Plateau of central Texas include the Edwards group of formations and its equivalent, the Devils River formation, which replaces the Edwards to the west and south; both of these formations overlie the Glen Rose formation (Maclay and Small 1986, pp. 17-24). Karstic, porous limestones are abundant in the Edwards and Devils River formations, and conversely, the Glen Rose limestones have relatively little porosity. The Edwards Aquifer occupies the porous upper strata, and many seeps and springs occur along the Balcones Escarpment, where the boundary of these upper formations with the Glen Rose is exposed at the surface. Some units of the Edwards, Devils River, and Glen Rose formations are dolomitic, meaning that, in addition to calcium, they also contain significant amounts of magnesium. Bracted twistflower populations occur in close proximity to the exposed boundary of the Edwards or Devils River and Glen Rose formations (McNeal 1989, p. 15; Zippin 1997, p. 223; Carr 2001, p. 1; Pepper 2010, p. 5). Most populations are less than 2 kilometers (km) (1.2 miles (mi)) from this boundary, as seen in less detailed, small-scale geological maps (Fowler 2014, pp. 11-12). A detailed, large-scale geological map of northern Bexar County (Clark
Although we do not know why the species is associated with the Edwards-Glen Rose boundary, Fowler (2014, p. 12) proposed two hypotheses: (1) The species depends on increased seepage between these formations; and (2) the species requires higher levels of magnesium ions that leach from dolomitic limestone in the lower strata of the Edwards formation. These hypotheses are not mutually exclusive.
Bracted twistflower occurs in native, old-growth juniper-oak woodlands and shrublands along the Balcones Escarpment. Individual plants frequently occur near or under a canopy of Ashe juniper, Texas live oak, Texas persimmon (
Bracted twistflower is a winter annual plant that persists only where individuals produce enough seeds to sustain a reserve of viable seeds in the soil. White-tailed deer and introduced ungulates heavily browse the flower stalks of individual plants before they can set seed, thus contributing to the decline of populations. Herbivory threatens the species throughout its range, except where it is protected from deer by fencing or intensive herd management (hunting) (McNeal 1989, p. 17; Damude and Poole 1990, pp. 52-53; Dieringer 1991, p. 341; Zippin 1997, pp. 39-197, 227; Leonard 2010, pp. 36-43; Fowler 2014, pp. 17, 19). The extremely high deer densities in the Edwards Plateau of Texas exacerbate the species' vulnerability to herbivory (Zippin 1997, p. 227).
In sites that are protected from white-tailed deer, the most robust bracted twistflower plants occur where woody plant cover is less dense (Damude and Poole 1990, pp. 29-30; Poole
Bracted twistflower produces seeds primarily through outcrossing (fertilization between different individuals), and therefore depends heavily on pollinators, including a native leafcutter bee,
In summary, the essential physical and biological features of bracted twistflower are:
(1) Karstic, dolomitic limestones underlain by less permeable limestone strata, where perched aquifers seep to the surface along slopes. These are often found within 2 kilometers of the exposed boundary of the Edwards or Devils River and Glen Rose geological formations;
(2) Native, old-growth juniper-oak woodlands and shrublands along the Balcones Escarpment;
(3) Herbivory from white-tailed deer and introduced ungulates of such low intensity that it does not severely deplete populations prior to seed dispersal;
(4) Tree and shrub canopy gaps that allow direct sunlight to reach the herbaceous plant layer at least 6 hours per day; and
(5) Viable populations of native bee species and the abundant, diverse forb and shrub understory that support them.
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 which are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of this species may require special management considerations or protections to reduce the following threats: Habitat loss due to urban and residential development, increased woody plant cover, severe herbivory by native and introduced ungulates, and trampling and erosion from recreational use. Management activities that could ameliorate these threats include (but are not limited to) juniper thinning, prescribed fire, fencing to exclude deer and other herbivores, herd management of local ungulate populations, and protection from foot and bicycle traffic. These management activities will protect the physical and biological features essential for the conservation of the species by reducing herbivory, maintaining open canopies, protecting the habitat from trampling and erosion, and conserving diverse shrub and forb understory vegetation that supports the species' native bee pollinators.
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 considered the geographic areas occupied by the species at the time of listing to consist of EOs with survey data within the past 7 years or areas in which we confirmed that habitat remained intact using aerial imagery. We know that seeds can remain dormant and viable in the soil of intact sites for at least 7 years. Due to the large proportion of private lands within the range of the species, the majority of known locations occur on publicly-owned conservation lands that can be accessed for surveys. Most of the critical habitat units have been surveyed annually, and the habitats are protected by the cities of Austin and San Antonio. We do not have recent surveys for two sites, EOs 10 and 18 (Garner State Park and Medina Lake). However, we have precise geographic coordinates for these populations collected with Global Positioning System (GPS) instruments. In a Geographic Information System (GIS), we have overlaid the geographic coordinates of these sites on recent orthographically corrected aerial photographs and have determined that the habitats remain intact.
We designated critical habitat units only at extant EOs that still possess one or more of the physical and biological features that are essential to its conservation. We delineated each critical habitat unit around areas where karstic, dolomitic limestones of the Edwards or Devils River formations overlay the less permeable Glen Rose formation. The elevation ranges and degree of slope of these geological strata vary among EOs. However, because the exposed strata that support bracted twistflower populations are nearly horizontal, we used the elevation range where individuals have been observed at each EO to delineate this essential geological feature over the short distances spanned by that EO Similarly, since seepage from overlying karst aquifers occurs on slopes, we also used the range of slopes where individuals have been observed at each EO to delineate this essential feature at that EO. Thus, we combined the parameters of the observed elevation range and slope range of the species at each EO to delimit each critical habitat unit. However, we excluded any areas that lack natural vegetation, such as roads and buildings, as determined through examination of recent aerial photographs. We also did not designate critical habitat units at EOs that are no longer occupied, or that no longer possess the essential physical and biological features due to development or significant disturbance. Finally, we did not extend critical habitat units beyond areas that have been surveyed, because we cannot determine if they
We are not proposing to designate any areas outside the geographic area currently occupied by bracted twistflower because we did not find any unoccupied areas that contained the necessary PBFs and were essential for the conservation of the species. We are designating critical habitat within occupied habitat in all three representation areas, including areas that preserve the populations with the highest resiliency. Therefore, unoccupied areas are not necessary for the recovery of the species.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for bracted twistflower. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
We propose to designate as critical habitat lands that we have determined are occupied at the time of listing (
Some units contain all of the identified physical or biological features and support multiple life-history processes. Some units contain only some of the physical or biological features necessary to support the bracted twistflower's particular use of that habitat.
The proposed critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed 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 proposing approximately 1,607 acres (ac) (650 hectares (ha)) in three units as critical habitat for the bracted twistflower. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the bracted twistflower. The three areas we propose as critical habitat are: (1) Northeast Unit; (2) Central Unit; and (3) Southwest Unit. Table 2 shows the proposed critical habitat units, the land ownership, and the approximate area of each unit. All units proposed for designation are occupied.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the bracted twistflower, below.
Unit 1 consists of 725 ac (293 ha) of occupied habitat within Travis County, Texas, and is composed of four subunits, which are described below.
Barton Creek Greenbelt and Barton Creek Wilderness Park consist of 838.76 ac (339.44 ha) and 1,120.26 ac (453.36 ha) of protected areas, respectively, along Barton Creek within the City of
Bull Creek District Park, acquired in 1971, is a 47.30-ac (19.14-ha) conservation area owned and managed by the City of Austin Parks and Recreation Department as a unit of the BCP system. We are proposing to designate 2.32 ac (0.94 ha) of this BCP unit as occupied critical habitat for the bracted twistflower (EO 35). This subunit contains the essential physical and biological features of proximity to the geological boundary, old-growth juniper-oak woodlands, and viable native bee populations. Specific threats include juniper encroachment into canopy gaps, white-tailed deer herbivory, infrequent wildfire, off-trail recreational uses, and small population size. Special management needed for the bracted twistflower within this subunit includes white-tailed deer herd management and thinning of juniper trees; if it can be conducted safely, management could include prescribed burning. The primary management goals of this BCP unit are to maintain and improve habitat for golden-cheeked warblers; to protect karst species and other species of concern, including canyon mock-orange (
Mount Bonnell Park (Covert Park at Mount Bonnell) is a 6.07-ac (2.45-ha) conservation area owned and managed by the City of Austin Parks and Recreation Department as a unit of the BCP system. We are proposing to designate 2.00 ac (0.81 ha) of this BCP unit as occupied critical habitat for the bracted twistflower (EO 9). This subunit contains the essential physical and biological features of proximity to the geological boundary, old-growth juniper-oak woodlands, and viable native bee populations. Specific threats include juniper encroachment into canopy gaps, white-tailed deer herbivory, infrequent wildfire, off-trail recreational uses, and small population size. Special management needed for the bracted twistflower within this subunit includes white-tailed deer herd management and thinning of juniper trees; if it can be conducted safely, management could include prescribed burning. The primary management goal for the BCP acreage of Mt. Bonnell is to protect and manage habitat for the bracted twistflower (City of Austin 2007c, pp. 1-4). Management objectives include stopping unauthorized foot traffic into the species' habitat; conducting annual monitoring of the population; increasing the population size; working with adjacent private landowners to protect and manage the species; and removing nonnative, invasive vegetation. The City of Austin Wildland Conservation Division monitors the Mount Bonnell bracted twistflower population annually (City of Austin 2018). This small population is a remnant of a much larger population that extended onto adjacent private land and was subsequently lost to residential development.
Ullrich Water Treatment Plant (Bee Creek Park) is a 95.42-ac (38.61-ha) property owned and managed by the City of Austin Water Utility. The Balcones Canyonlands Conservation Plan designated 17.7 ac (7.16 ha) of this property as BCP Habitat Management Areas. We are proposing to designate 29.92 ac (12.11 ha) of this BCP unit as occupied critical habitat for the bracted twistflower (EO 7); the proposed critical habitat area includes some undeveloped portions of the property that were not included in the BCP Habitat Management Area designation. This subunit contains the essential physical and biological features of proximity to the geological boundary, old-growth juniper-oak woodlands, protection from deer herbivory, and viable native bee populations. Specific threats include juniper encroachment into canopy gaps, infrequent wildfire, and small population size. Special management needed for the bracted twistflower within this subunit includes white-tailed deer herd management and thinning of juniper trees; if it can be conducted safely, management could include prescribed burning. The primary management goals are to protect and maintain habitat for the golden-cheeked warbler, protect karst features and monitor the Bee Creek Cave harvestman (
Unit 2 consists of 537 ac (217 ha) of occupied habitat within Bexar and Medina Counties in Texas. This unit is composed of four subunits, which are described below.
Eisenhower Park is a 324-ac (131-ha) designated natural area in Bexar County owned by the City of San Antonio and managed by San Antonio Parks and Recreation Department (SAPRD). It is bounded on the north by Camp Bullis Military Reservation. We are proposing
Rancho Diana is a 1,148-ac (465-ha) natural area in Bexar County acquired by the City of San Antonio through the City's 2005 Edwards Aquifer Protection program. We are proposing to designate 395.73 ac (160.15 ha) as occupied critical habitat for the bracted twistflower at Rancho Diana (EO 31). This subunit contains the essential physical and biological features of proximity to the geological boundary, old-growth juniper-oak woodlands, protection from deer herbivory, tree and shrub canopy gaps, and viable native bee populations. Specific threats include herbivory from white-tailed deer, juniper encroachment into canopy gaps, and infrequent wildfire. Special management needed for the bracted twistflower within this subunit includes white-tailed deer herd management and thinning of juniper trees; if it can be conducted safely, management could include prescribed burning. This property is managed by SAPRD, but currently is not open to the public. SAPRD discovered a large population of bracted twistflower at Rancho Diana in 2010, and subsequently protected the population with a deer-fenced exclosure; however, portions of the population extend beyond this exclosure and are vulnerable to herbivory. SAPRD cleared the overstory brush from small portions of the enclosed population in 2017 and 2019, resulting in a large increase in the emergence and seed production of bracted twistflowers within the cleared areas.
Laurel Canyon Ranch Conservation Easement is a private property in Medina County owned by Laurel C. Canyon Ranch Limited Partnership, of Houston, Texas. The City of San Antonio Edwards Aquifer Protection Program holds a conservation easement on 549 ac (222 ha) of Laurel Canyon Ranch (City of San Antonio and The Nature Conservancy 2016). About 87 percent of the easement is within the Edwards Aquifer Recharge Zone, and the conservation easement protects water quantity and quality for the City of San Antonio. This subunit is not open to the public. The largest known population of the bracted twistflower was documented at this site in 2001 (Carr 2001; TXNDD 2018), and has been monitored annually by SAPRD since 2018. We are proposing to designate 39.59 ac (16.02 ha) as occupied critical habitat for the bracted twistflower at the Laurel Canyon Ranch Conservation Easement (EO 25). This subunit contains the essential physical and biological features of proximity to the geological boundary, old-growth juniper-oak woodlands, tree and shrub canopy gaps, and viable native bee populations. Specific threats include herbivory from white-tailed deer, juniper encroachment into canopy gaps, and infrequent wildfire. Special management needed for the bracted twistflower within this subunit includes white-tailed deer herd management and thinning of juniper trees; if it can be conducted safely, management could include prescribed burning.
Medina River is a 722.81-ac (292.52-ha) tract of private property in Medina County owned by Medina Ranch Inc. of San Antonio, Texas. A population of about 1,000 bracted twistflowers was documented there in April 2007 (TXNDD 2018). We are proposing to designate 23.28 ac (9.42 ha), located along bluffs overlooking the Medina River Diversion Lake, as occupied critical habitat for the bracted twistflower (EO 18). This subunit contains the essential physical and biological features of proximity to the geological boundary, old-growth juniper-oak woodlands, tree and shrub canopy gaps, and viable native bee populations. Specific threats include herbivory from white-tailed deer, juniper encroachment into canopy gaps, and infrequent wildfire. Special management needed for the bracted twistflower within this subunit includes white-tailed deer herd management and thinning of juniper trees; if it can be conducted safely, management could include prescribed burning. This subunit is not open to the public.
Unit 3 consists of occupied habitat within Uvalde County, Texas. Garner State Park was donated by local landowners to the State of Texas in 1941, and is managed by TPWD. One population of bracted twistflower persists at this very heavily visited, 1,786-ac (723-ha) State park. We are proposing to designate 345.23 ac (139.71 ha) as occupied critical habitat for the bracted twistflower at Garner State Park (EO 10). This subunit contains the essential physical and biological features of proximity to the geological boundary, old-growth juniper-oak woodlands, tree and shrub canopy gaps, and viable native bee populations. Specific threats include herbivory from white-tailed deer and introduced ungulates, juniper encroachment into canopy gaps, off-trail recreational uses of habitats, and infrequent wildfire. Special management needed for the bracted twistflower within this subunit includes white-tailed deer herd management and thinning of juniper trees; if it can be conducted safely, management could include prescribed burning.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
Compliance with the requirements of section 7(a)(2) is documented 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 formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, if subsequent to the previous consultation: (1) If the amount or extent of taking specified in the incidental take statement is exceeded; (2) if 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; (3) if 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 (4) if a new species is listed or critical habitat designated that may be affected by the identified action.
The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. 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 the Service may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to, actions that would disturb the soil or underlying rock strata, reduce the diversity and abundance of native bees and bee-pollinated plant species, or diminish the perched aquifers that supply seep moisture to bracted twistflower habitats. Such activities could include, but are not limited to, excavation of soil or underlying rock strata with bulldozers, graders, back-hoes, or excavators within habitats; application of insecticides that kill or impair native bees; application of herbicides that kill or damage native bee-pollinated plants; and displacement of native juniper-oak woodlands with surface cover, such as pavement and buildings, that impede infiltration of rainwater into the soil. These activities could deplete or destroy the soil seed reserve of viable seeds of the bracted twistflower, diminish the abundance of the species' pollinators and thereby reduce seed production and gene flow, or alter the soil and hydrology so that it no longer supports the germination, establishment, and reproduction of the bracted twistflower.
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 lands with a completed INRMP within the proposed 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 we determine that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless we determine, 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
Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.
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. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”
The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (
For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the bracted twistflower (IEc. 2020, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (
Executive Orders (EOs) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the EO regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the bracted twistflower, first we identified, in the IEM dated October 8, 2020, probable incremental economic impacts associated with potential activities based upon our knowledge of future projects and past consultations. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, a designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list the species, in areas where the bracted twistflower is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If, when we list the species, we also finalize this proposed critical habitat designation, our consultation would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (
The proposed critical habitat designation for the bracted twistflower consists of approximately 1,607 ac (650 ha) of occupied habitat within three units. Unit 1 (Northeast) contains four subunits totaling 724.74 ac (293.30 ha), all owned by the City of Austin. Unit 2 (Central) contains four subunits totaling 536.79 ac (217.22 ha); two subunits are owned by the City of San Antonio, and two are privately owned. Unit 3 (Southwest) contains 345.23 ac (139.71 ha) that are within Garner State Park and managed by Texas Parks and Wildlife Department.
All proposed critical habitat units are occupied by the species; therefore, any activities with a Federal nexus in the proposed critical habitat area that may affect the species would be subject to section 7 consultation regardless of whether critical habitat is designated. It is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the bracted twistflower. As a result, critical habitat is not expected to result in additional consultations beyond those required due to the presence of the species. Therefore, only administrative costs are expected within the proposed critical habitat designation. While this additional analysis will require time and resources by both the Federal action agency and the Service, it is believed that these costs would predominantly be administrative in nature and would not be significant. The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies, State agencies or municipalities, and, in some cases, third parties.
Overall, future consultation activity within the proposed critical habitat area is likely to be very limited, but may include the following categories: (1) Land restoration of enhancement; (2) agriculture; (3) development; (4) transmission line construction; (5) oil or gas pipelines; (6) transportation; and (7) stream modification. The majority (99 percent) of the proposed critical habitat area is within protected areas and conservation lands. The consultation history indicates that few projects and activities have occurred within critical habitat and within the broader range of the species over the past 9 years. Future consultations within the proposed critical habitat units are anticipated to range from zero to 0.1 formal consultations per year, 0.1 to 0.4 informal consultations per year, and zero to 0.9 technical assistance efforts per year. Based on the average annual rate of consultations, the incremental administrative costs of consultation for the proposed critical habitat units may range from $280 to $2,100 in an average year (IEc 2020, p. 15).
We are soliciting data and comments from the public on the DEA discussed above, as well as on all aspects of this proposed rule and our required determinations.
During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90. If we receive credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion, we will conduct an exclusion analysis for the relevant area or areas. We may also exercise the discretion to evaluate any other particular areas for possible exclusion. Furthermore, when we conduct an exclusion analysis based on impacts identified by experts in, or sources with firsthand knowledge about, impacts that are outside the scope of the Service's expertise, we will give weight to those impacts consistent with the expert or firsthand information unless we have rebutting information. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (
However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, we must conduct an exclusion analysis if the Federal requester provides credible information, including 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, such as impacts to ongoing border-security patrols and surveillance activities, 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. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or
Under section 4(b)(2) of the Act, we also consider whether where a national-security or homeland-security impact might exist on lands not owned or managed by DoD or DHS. In preparing this proposal, we have determined that, other than the land exempted under section 4(a)(3)(B)(i) of the Act based upon the existence of an approved INRMP (see Exemptions, above), the lands within the proposed designation of critical habitat for the bracted twistflower are not owned or managed by DoD or DHS. Therefore, we anticipate no impact on national security. However, if through the public comment period we receive credible information regarding impacts on national security or homeland security from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90.
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. 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), or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation. No Tribal lands are included in the critical habitat designation for the bracted twistflower.
We are not considering any exclusions at this time from the proposed designation under section 4(b)(2) of the Act based on partnerships, management, or protection afforded by cooperative management efforts. When analyzing the benefits of including or excluding particular areas covered by conservation plans, agreements, or partnerships permitted under section 10 of the Act, we consider whether the species for which critical habitat is being designated is a covered species in the conservation plan or agreement and whether the conservation plan or agreement specifically addressed the habitat of the species (50 CFR 17.90(3)). Within the proposed critical habitat units, there is currently one HCP being implemented, the Balcones Canyonlands Preserve HCP; however, this HCP does not include the bracted twistflower. Rather, the HCP explicitly states that the bracted twistflower will not be adequately protected by the plan (BCP 1996, pp. 7, 9). Here, the bracted twistflower does have similar habitat requirements to those species covered by the Balcones Canyonlands Preserve HCP, but the HCP specifically states that several of those habitats will be destroyed by the actions taken in the HCP's planning area. Accordingly, the HCP does not adequately address the habitat of the bracted twistflower or meet its conservation needs in its planning area, and, therefore, the HCP's covered area should not be considered for exclusion here.
We also analyze the benefits of including or excluding particular areas covered by conservation plans, agreements, or partnerships that have not been authorized by a permit under section 10 of the Act (50 CFR 17.90(4)). A non-binding, non-obligatory memorandum of agreement (MOA) to work cooperatively at efforts to conserve the bracted twistflower between the Service, Texas Parks and Wildlife Department, City of Austin, Travis County, Lower Colorado River Authority, and the Ladybird Johnson Wildflower Center was entered into in 2004. When analyzing the benefits of including or excluding these areas, we analyze the degree to which the plan or agreement provides for the conservation of the physical or biological features that are essential to the conservation of the species (50 CFR 17.90(4)(vi)). The MOA has benefited conservation of the bracted twistflower, but does not address all of the species' essential physical and biological features; specifically, it does not address encroachment and competition from Ashe juniper. Scientific studies that revealed the species' requirement for exposure to direct sunlight were not published until after the MOA was finalized in 2004 (Fowler 2010, pp. 1-18; Leonard 2010, pp. 1-86; Ramsey 2010, pp. 1-35; Leonard and Van Auken 2013, pp. 276-285). Consequently, the critical habitat designation would enhance ongoing conservation efforts, and the potential benefit of exclusion does not outweigh the benefit of inclusion.
We have not identified any areas to consider for exclusion from critical habitat based on other relevant impacts. However, during the development of a final designation, we will consider all information currently available or received during the public comment period. If we receive credible information regarding the existence of a meaningful impact supporting a benefit of excluding any areas, we will undertake an exclusion analysis and determine whether those areas should be excluded from the final critical habitat designation under the authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90. We may also exercise the discretion to undertake exclusion analyses for other areas as well, and we will describe all of our exclusion analyses as part of a final critical habitat determination.
At this time we are not considering any exclusions from the proposed designation based on economic impacts, national security impacts, or other relevant impacts—such as partnerships, management, or protection afforded by cooperative management efforts—under section 4(b)(2) of the Act. Some areas within the proposed designation are included in Balcones Canyonlands Preserve HCP and within a memorandum of agreement (MOA) between the Service, Texas Parks and Wildlife Department, City of Austin, Travis County, Lower Colorado River Authority, and the Ladybird Johnson Wildflower Center. In this proposed rule, we are seeking credible information from the public regarding the existence of a meaningful impact supporting a benefit of excluding any areas that would be used in an exclusion analysis that may result in the exclusion of areas from the final critical habitat designation. (Please see
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of EO 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. EO 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 proposed 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 whether 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 as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies 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. The RFA does not require evaluation of the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This proposed 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
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule would significantly or uniquely affect small governments because the lands being proposed for critical habitat designations are primarily owned by the cities of Austin and San Antonio or the State of Texas and none of these government entities fits the definition of “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required.
In accordance with EO 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the bracted twistflower 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 for the proposed designation of critical habitat for the bracted twistflower, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.
In accordance with EO 13132 (Federalism), this proposed 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 proposed critical habitat designation with, appropriate State resource agencies. 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 proposed 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 proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) 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 have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the physical or biological features essential to the conservation of the species. The proposed areas of critical habitat are presented on maps, and the proposed 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
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribal lands fall within the boundaries of the proposed critical habitat for the bracted twistflower, so no Tribal lands would be affected by the proposed designation.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Austin Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Plants, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend 50 CFR part 17 as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(h) [Reserved]
(i)
(i) Import or export, as set forth at § 17.61(b) for endangered plants.
(ii) Remove and reduce to possession from areas under Federal jurisdiction; maliciously damage or destroy the species on any such area; or remove, cut, dig up, or damage or destroy the species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law.
(iii) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.61(d) for endangered plants.
(iv) Sale or offer for sale, as set forth at § 17.61(e) for endangered plants.
(2)
(i) Conduct activities as authorized by a permit under § 17.72.
(ii) Any employee or agent of the Service or of a State conservation agency that is operating a conservation program pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by that agency for such purposes, may, when acting in the course of official duties, remove and reduce to possession from areas under Federal jurisdiction members of bracted twistflower that are covered by an approved cooperative agreement to carry out conservation programs.
(iii) Engage in any act prohibited under paragraph (i)(1) of this section with seeds of cultivated specimens, provided that a statement that the seeds are of “cultivated origin” accompanies the seeds or their container.
(a) * * *
Family Brassicaceae:
(1) Critical habitat units are depicted for Bexar, Medina, Travis, and Uvalde Counties, Texas, on the maps in this entry.
(2) Within these areas, the physical or biological features essential to the conservation of the bracted twistflower consist of the following components:
(i) Karstic, dolomitic limestones underlain by less permeable limestone strata, where perched aquifers seep to the surface along slopes. These are often found within 2 kilometers of the exposed boundary of the Edwards or Devils River and Glen Rose geological formations;
(ii) Native, old-growth juniper-oak woodlands and shrublands along the Balcones Escarpment;
(iii) Herbivory from white-tailed deer and introduced ungulates of such low intensity that it does not severely deplete populations prior to seed dispersal;
(iv) Tree and shrub canopy gaps that allow direct sunlight to reach the herbaceous plant layer at least 6 hours per day; and
(v) Viable populations of native bee species and the abundant, diverse forb and shrub understory that support them.
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(4) Data layers defining map units were created using U.S. Geological Survey digital elevation models. For each unit/subunit, we determined the range of occupied elevations and the range of occupied slopes; critical habitat polygons consisted of the intersection of the occupied elevations and occupied slopes. 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
(5)
(6) Unit 1: Northeast, Travis County, Texas.
(i) Subunit 1a: Barton Creek Park/Wilderness Area.
(A) Subunit 1a consists of 690.5 acres (ac) (279.44 hectares (ha)) in Travis County and is composed of lands along Barton Creek owned by the City of Austin Parks and Recreation Department and managed as a unit of the Balcones Canyonlands Preserve (BCP) system.
(B) Map of Subunit 1a follows:
(ii) Subunit 1b: Bull Creek Park.
(A) Subunit 1b consists of 2.32 ac (0.94 ha) in Travis County and is composed of lands owned by the City of Austin Parks and Recreation
(B) Map of Subunit 1b follows:
(iii) Subunit 1c: Mount Bonnell Park.
(A) Subunit 1c consists of 2 ac (0.81 ha) in Travis County and is composed of lands owned by the City of Austin Parks and Recreation Department and managed as a unit of the BCP system.
(B) Map of Subunit 1c follows:
(iv) Subunit 1d: Ullrich Water Treatment Plant/Bee Creek Park.
(A) Subunit 1d consists of 29.92 ac (12.11 ha) in Travis County and is composed of lands owned by the City of Austin Water Utility, a portion of which is managed as a BCP Habitat Management Area.
(B) Map of Subunit 1d follows:
(7) Unit 2: Central, Bexar, and Medina Counties, Texas.
(i) Subunit 2a: Eisenhower Park.
(A) Subunit 2a consists of 78.16 ac (31.63 ha) in Bexar County and is
(B) Map of Subunit 2a follows:
(ii) Subunit 2b: Rancho Diana.
(A) Subunit 2b consists of 395.73 ac (160.15 ha) in Bexar County and is composed of lands owned and managed by the City of San Antonio.
(B) Map of Subunit 2b follows:
(iii) Subunit 2c: Laurel Canyon Ranch Conservation Easement.
(A) Subunit 2c consists of 39.59 ac (16.02 ha) in Medina County and is composed of private property owned by Laurel C. Canyon Ranch, LP. The City of San Antonio Edwards Aquifer Protection Program holds a conservation easement on 222 ha (549 ac) of Laurel Canyon Ranch.
(B) Map of Subunit 2c follows:
(iv) Subunit 2d: Medina River.
(A) Subunit 2d consists of 23.28 ac (9.42 ha) in Medina County and is composed of private property owned by Medina Ranch Inc.
(B) Map of Subunit 2d follows:
(8) Unit 3: Southwest; Garner State Park, Uvalde County, Texas.
(i) Unit 3 consists of 345.22 ac (139.71 ha) in Uvalde County and is composed of lands within Garner State Park, which is managed by Texas Parks and Wildlife Department.
(ii) Map of Unit 3 follows: